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Pou v Trillion Tree Co Ltd [2015] SBHC 4; HCSI-CC 399 of 2012 (10 February 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 399 of 2012.

BETWEEN:

GEORGE POU
Claimant

AND:

TRILLION TREE CO. LIMITED
Defendant

Dates of Hearing: 1/6/13; 3/7/2013, 19/8/2013, 3/12/2013
and 28/1/2015

Date of Ruling: 10th February 2015

Mr. W. Rano for the Claimant
Mrs. N. Tongarutu for the Defendant

DECISION ON APPLICATION TO STRIKE OUT

FAUKONA PJ:

1. A claim in category A was filed by the Claimant on 26th October, 2012. Premise on that claim, interim orders were obtained on 14th November 2012. The issue of restraining orders was adjourned for an inter parte hearing. That hearing, according to court records was never materialised. Being as it may, the Counsel for the Defendant then filed this application to strike out both the claim and the interim orders of 14th November, 2012.

2. In an application to strike out, the requirements under R.9.75 ought to be manifestly proved on the balance of probability. That the case is frivolous and vexatious, it has no reasonable chance to succeed and is an abuse of court process.

3 Rather than being confine to the issues under the application couched under Rule 9.75, Counsels had drawn the Court to engage in a hearing of the actual trial. Notices for cross-examination was filed and served and witnesses were called to be cross-examined. The actual trial took four days in 2013. I presumed during the course of trial, the issues before Court were trespass and other related issues. At the final submissions it was in respect of application to strike out which could have taken two hours to accomplish. Anyway, much time had been consumed on bogus trial, which at the end of the day became redundant, and focus now is on the application to strike out.

4 The issue before this Court is basically in the nature of trespass. The issue of trespass often give rise to claim for damages. Landownership is a prerequisite requirement to such a claim. As such, the boundaries of the land must be established. The question is whether the Defendant had encroached into pugu customary land and fell tress of economic value? Once trespass is proved then the issue of damages flows from thereon.

5 The Claimant has claimed pugu customary land with precise marked boundaries. This claim was tested through Boli House of Chiefs on 16th September 2004 and through joint survey by the Sandfly and Boli House of Chiefs on 2nd April 2005, who decided by accepting and affirming the Claimant's right of ownership over pugu customary land. The same was supported by Local Court decision on 10th November 2010 – see Exhibits GP2, GP3 and GP4 of Pou's Sworn Statement filed on 26th October 2012.

6 Noted from that sworn statement, in particular GP2, there was a sketch map attached, presumably drawn out of any scale. However, the significant point is that under the heading vovono muri, there were names such as koga, vatumadou etc. This impliedly gives a hint, though they were written in local dialect, that the inland boundary was bounded by koga, vatumadou etc, somehow.

7 That sketch map when translated to a map drawn to scale with grids (Exhibit GP1), the names koga and vatumadou were maintained as consistent to the sketch map in Exhibit GP2.

8 In contrast, the map attached to Mr Salini's sworn statement filed on 12th June 2013, upholds a very significant point. That the inland boundary of pugu land runs from konga to vatumadou and then to tongo. However, it exerted pugu land in a diminished size from the Claimant's claim. Point konga is identified as between grid 34 and 35, and tongo is between grid 36 and 37.

9 In measuring that map with the map Exhibit IT and JK2 attached to the joint sworn statement of Chief Tarika and Chief Kila, it appears that vatumadou being the furthest point of pugu land boundary in the hinterland is located between grid 38 and 39. And that was exactly the same as Claimant's map Exhibit GP1 attached to his sworn statement filed on 26th October 2012.

10 The argument advances by Mrs Tongarutu source from the fact of denial that felling licence No. A10319 issued to Tropical Resources Development did not and does not affect pugu customary land. Consequently, no logging operation was carried out on any pugu land, in particular, kaukamudu, vatumadou, polotogosa and maleipuru lands. She further asserted that those lands are situated outside of pugu land claim by the Claimant. That is a clear implication that the Defendant did enter those lands and fell trees/logs for sale with the assumption those lands are outside. With that perception, it renders the claim and the restraining orders as frivolous and vexatious and has no reasonable chance to succeed.

11 In another perception, the advocator for the Defendant alludes that all the requirements under the Forest Resources and Timber Utilisation Act had been complied with strictly. There is no dispute as to that. What the claimant is saying is that he owns pugu customary land, which was supported by the Chiefs and Local Court decisions, and was not consulted through proper process to enter his land. However, it seems the Defendant has a different version culminating an ongoing view, that it only conducted logging operations on concession lands granted by those who were identified as owners of those lands. It appears the real issue is boundary. I think it would be of significant assistance if those who were identified as grantors come forward and identify the boundaries of their lands. In this case, no one is called to assist. In any event, the Court has to determine on the evidence available before it.

12 In deciding an application to strike out, premises on Rule 9.75, the consideration were set out in the case of Tikani v Motui[1]. On page 1 paragraph 7, His Lordship Palmer AC J stated:

"In such an application, no evidence is admissible and the court can only look at the pleadings and particulars (Wenlock v Moloney (1963 1.W.C.R, 38). The Court should also exercise its discretion to strike out in plain and obvious cases (Hubbuck & Sons v Wilkinson (1899) 1Q.B. 86, 91), and where no reasonable amendment would cure the defect. Such an application is only appropriate where it is clear that the statement of claim as it stands is insufficient, even if proved to entitle the plaintiff to what he asks (Chow v Attorney-General CC: 127 of 2000). A reasonable cause of action means a cause of action with some chance of success or where a tenable case been disclosed for the relief sought (Gatu v SIEA, Attorney General & Gold Ridge CC: 59 of 1995; Mauara v Solomon Taiyo Limited CC: 105 of 1997. So long as the statement of claim discloses some cause of action or raise some question fit to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out (Moore v Lawson (1995) 31 LR 418; Wenlock v Moloney (ibid). If however, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out (Drummond Jackson v British Medical Association (1970) 1 W.L.R. 688 of P.692. Lord Pearson).

13 His Lordship continued at page 6, paragraph 4 adopting the directions pronounced by the common law cases, and stated:

"The jurisdiction given to the court on those grounds is to be sparingly used only in exceptional cases (Lawrence v Lord Norrys (1890) I5 App. Case 210 at 219 per Lord Herschell). It should be exercised only where the claim is devoid of all merit, or cannot possibly succeed (Wills v Earl Beauchamp (1886) 11 P.D.59). In Norman v Mathews (1916) 85 L. J.K.B. 857, 859 Lush J propounded the test as follows;

"In order to bring a case within the description, it is not sufficient merely to say that the Plaintiff has no cause of action. It must appear that his allege cause of action is one which, on the face of it, is clearly one which no reasonable person could properly treat as bona fide, and content that he had a grievance which he was entitled to bring before the Court."

14 The above quotes propounded prerequisite facts to search for and comply with by applying the law in a manner as advocated. The test is simple, a fine line has been drawn, that a cause of action is one, which a reasonable person could perceive and content or satisfied that a Claimant did have a real grievance to come to Court and seek redress. Only on exceptional cases, and where a cause of action is insufficient or the chance of success is imminent or where the claim raises some questions fit to be decided at trial, though weak, is no ground for striking out.

15 In translating those requirements to the cause of action and the facts pleaded which were tendered, I am of the opinion that the Claimant has a cause of action and the issue to be tried is the affirmation of the boundaries of pugu customary land which he won through Chiefs and Local Court decisions previously. From facts as pleaded, there is likelihood the Claimant would succeed. Therefore, I shall refuse to strike out the claim and the interim orders on this ground.

16 In respect of the issue of abuse of process, the Counsel advocate for the Defendant focuses on the question that the Counsel for the Claimant has an interest in the outcome of this case. In other words, Counsel Rano is one of the Directors of a Company Hybrid Resources Limited which also has interest to log pugu customary land and may be plus others – see Exhibits PV2, a letter from the Forestry Department dated 21st November 2011 and attached to P. Viti's sworn statement filed on 30th November 2012. The same was emphasized by the application to strike out in paragraphs 16 and 17, filed on 14th November 2012.

17 Though nothing much is advocated in written submissions, however, there are brief submissions in that regard in the oral submissions. In defending himself, Counsel Rano submits that the case was instituted by the Claimant in respect of the land he won through legal avenues. And the centre of focus revolves on the issue of trespass by the Defendant into the land he won, and that has nothing to do with him.

18 There is no dispute that Mr Rano is the shareholder of Hybrid Resources Limited, he has fifty (50) shares. There is no dispute that the company Mr Rano has 50 shares had submitted Form 1 application to acquire timber rights for pugu customary land. Whatever occurs thereon is not shown by any further documentation. Suffice to note that the claim, which comprised four million dollars for damages was filed by Mr Rano on 26th October 2012. Almost at the same time the Defendant ceased all logging operations in the concession area specified under Licence No. A10319 held by Tropical Resources Development Company. There is no dispute that Mr Rano's company intended to acquire timber rights in pugu customary land. Logically, at the end of the day, should the Claimant win the case and damages are assessed, then there is likelihood or possibility that the Counsel's company stand to benefit out of the final proceedings. In other words, put it in another perspective, had trespass not committed, the Counsel's company would have extracted the logs and exported them, therefore achieve benefit out of it. I am not inclining that such will materialize, but for the fact that since, or as earlier than 30th November 2011, the Counsel's company had interest and had submitted Form 1 application. From that date until the filing of this action on 26th October 2012, that intention could have progressed dramatically even to the point of acquiring a felling licence. Hence, I would be able to conclude that Counsel Rano, undoubtedly in my opinion, has a conflict of interest. The best conclusion I would draw is that the claim should go through for trial and Mr Rano, or any Counsel from his firm be disqualified from representing the Claimant.

Orders:

1. Application to strike out the claim and interim orders are hereby refused and dismissed.
   
2. Counsel Rano or any Counsel from his firm be disqualified and step aside from representing the Claimant on the ground of conflict of interest.
   
3. Parties partly succeed, hence cost in the cause.

THE COURT

^[1] [2001] SBHC 151: HC-CC 29 of 2001 [25 October 2011].