IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 634 of 2015 

BETWEEN:	JAY MA’UNGAPAP SAU’EHA				-	Claimant
	
AND:		ERIC TEMA						-	First Defendant
			 
AND:		WORLDLINK RESOURCES LIMITED			-	Second Defendant
	
Date of Hearing: 	11th April 2016.	
Date of Ruling: 	9th June 2016.	

Mr. J.  Ivanisevic for the Claimant.
Mr. T.  Mathews QC for the First and Second Defendants.

KENIAPISIA; PJ: 
RULING AFTER INTER PARTES HEARING 
Introduction
1.	I granted interim injunction orders (“ex – parte orders”) against the first and second defendants, on 23/12/2015, perfected the same day.  Today is the inter – partes’ hearing that followed the ex - partes’ orders. Simultaneously, I am also dealing with Eric Tema’s application for strike out, filed on 5/01/2016, by his former solicitor Counsel Etomea.

2.	At this hearing, claimant seeks continuation of the ex - parte orders.  Mr Tema, has, however filed an application to set aside or vary the ex – parte orders.  In the same application (filed 5/1/2016), Mr Tema also seek to strike out the claim, because, he says Mr. Sau’eha (claimant), is not authorised by his family to instigate this claim.

Setting Aside or Varying the Ex – parte Orders

3.	At the hearing, the claimant, Mr Sau’eha seeks a continuation of the ex – parte orders. Mr Tema, has, however, filed an application to discharge the ex – parte orders.

Issues

4.	The issues at this hearing are: whether the ex – parte orders should continue and/or whether the claim should be strike out because the claimant is not authorised to instigate this claim on behalf of his family.

Legal Principles governing the grant of Inter- locutory Orders

5.	The purpose of granting interim injunctions is to maintain the status quo, pending trial of the main issues in dispute between parties, to the proceeding. Status quo means the position prevailing before the conduct complained of.

6.	The principles of law that apply when determining whether or not to grant injunctive relief are settled in a number of cases in this Court based on the well-known English Case of American Cyanamid.

7.	I summarise quickly the principles which I comfortably refer to as the fundamental legal requirements for the grant of Inter – locutory Injunctions: serious issues to be tried; damages will not be an adequate remedy; balance of convenience favours the granting of interim orders and applicant has given the usual undertaking as to damages.  Other associated principles are: locus standi; irreparable harm; status quo and strength of the parties’ case.

Is there Triable or Serious Issue (s)?

8.	Serious issues can be deduced from pleadings and sworn statements (ss) filed in the proceeding.  Claimant has filed a Category A claim on 18/12/2015.  I have also read all ss and court documents relied on by Counsels.  I can say there are serious issues to be tried emanating from the mentioned documents.  I should briefly summarise the issues: -

8.1	Whether or not Mr Tema holds the Perpetual Estate Title (“PE”) of Parcel Numbers 298 – 004 - 1; 298 – 004 – 2; 298 - 004 – 3; 298 -004 – 4 and 298 – 004 – 6 (“PN 1, 2, 3, 4 and 6”) in trust for claimant, and the family of late George Sau’eha (“GS family”) as beneficiaries?

8.2	Whether or not Tema should sub-divide and transfer parts of PN 1, 2, 3, 4 and 6 to the claimant and GS family? Additionally, whether the claimant is a trustee, to hold PE in parts of PN 1, 2, 3, 4 and 6 on behalf of himself and GS family, as beneficiaries?

8.3	As between Tema, Claimant and GS family, can a resulting or constructive trust be construed, by this Court, in relation to the acquisition and registration of PE in PN 1, 2, 3, 4 and 6 in Tema’s name in 2007?

8.4	Whether Tema is bound by the terms of a Conveyance Authority (“CA”), Tema executed on 10/2/2009, to grant to Claimant and GS family, sole rights to make “decisions” in relation to the Road Lands or other lands?

8.5	Whether Tema has breached the terms of the CA, (if any) in relation to economic dealings over the Road Lands or other Lands?

8.6	Is Tema accountable to the Claimant and the GS family in relation to economic dealings he has conducted on PN 1, 2, 3, 4 and 6 (“Road Lands and other Lands”)?

8.7	Whether Tema is accountable to the claimant and GS family, for commercial dealings, Tema has made in relation to PN 1, 2, 3, 4, and 6 for the period between 29th October, 2007 – 23 December, 2015?

8.8	Whether or not the claimant’s consent or the consent of GS family is a legal pre-requisite for Tema and his contractors to conduct mining operations on the Road Lands or other Lands?

8.9	Whether World Link Resources Limited’s (“WLRL”), mining operations is trespassing on the Road Lands or other Lands, because Tema did not get consent from claimant and GS family?

8.10	Is the claimant duly authorised to act in a representative capacity for GS family or can he act in his personal capacity as a beneficiary, of a purported trust property?

9.	I am satisfied that the foregoing issues are among the serious issues that have surfaced at this stage of the proceeding.  Indeed there are serious issues to be tried.

Damages an Adequate Remedy?

10.	It is not clear whether claimant and the GS family have genuinely consented to allowing lands Tema hold in trust for them for mining.  At this stage, the family is divided and we can say there is “instability” between GS family including claimant on whether or not mining should be conducted on lands that will subsequently be sub-divided and transferred to claimant and GS family.  There are conflicting ss evidencing this instability. Mr Tema did not deny subsequent sub-division, only saying the delay is because there is no money to expend on sub-division work.

11.	What is quite clear is that, the claimant personally does not want mining take place on lands that Tema holds in trust and to be subsequently sub-divided and transferred to claimant and GS family.  Claimant prefers sub-division and transfer before he or GS family can make a decision. To the extent that this is a claim rooted in trust (resulting or constructive); it is my view that claimant as a “beneficiary” has individual right, independently from the other GS family members, to claim in respect of the purported trust property.

12.	On the basis of the instability and reluctance by the claimant, it is my view that damages are not an adequate remedy.  And that inter – locutory injunction should be maintained.  Cases decided in this Court have repeatedly maintained that damages is not an adequate compensation for destruction caused to the land and environment – irreparable harm is a factor to consider in granting or not granting inter – locutory injunction.  I do consider that irreparable harm will be caused to the environment – and therefore injunction is justified.  The Court takes judicial notice, that any development that involves natural resources extraction on a large scale will inevitably involve environmental destruction such as in logging and mining.  I have indeed seen photographs depicting soil digging/extraction by heavy mining machineries.  That is sufficient to convince me that there is already harm to the environment.

13.	Now what will happen, if the subsequent sub-divisions are finally made and then there is nothing of value left, but bare/degraded land and environment, transferred to the claimant and GS family.  Will damages be adequate compensation for that kind of situation?  I do not think so, for the reasons espoused in the preceding paragraph 12.   And is this not why the claimant is concerned about his right to make decisions on lands covered under the CA of 2009, executed by Mr Tema?  The CA is in the following terms:

“I, Eric Tema had given the sole right to Jeffrey Sau’eha and his sons, the road from Hughughi coastal areas to Tahanuku Village…Thus I hereof given all the right to Jeffrey Sau’eha and his sons who can only make decisions and other things they want on the road as the true customary landowners”.

14.	I do consider just and fair that any subsequent sub-division and transfer of lands to claimant and GS family, must involve lands, in their original God given status quo.  And then claimant or GS family to decide what to do with a virgin land, if I can use that term.  Therefore injunction must still continue.

Adequacy of Undertaking and Ability of the Applicant to pay and Balance of Convenience

15.	The applicant has made an undertaking as to damages.  My experience is that without that “undertaking”, the Court cannot entertain the interlocutory application.  It is almost like a pre-requisite to hearing an Inter-locutory application.  Unfortunately, I do not think the applicant/claimant have the ability to honour his undertaking.  Sub-division is delayed due to lack of money.  If claimant has money, why didn’t he pay for sub-division?  Claimant is only an individual village person.  How can he pay compensation to a mining company?  Claimant cannot in my view, honour the undertaking.  And so I must consider other factors in determining whether or not to continue the Inter-locutory orders.  Such other factors include the balance of convenience: status quo and strength of the parties’ case.

16.	On status quo, the conducts complained of include mining on lands awaiting sub-divisions and transfer.  Claimant has yet to decide on whether he would consent to mining.  Other family members of GS family are divided.  There are conflicting ss before me.  Some say they are with the claimant and therefore oppose mining, till they can decide.  Others say they are with Mr. Tema and therefore agree to mining.  Still others, for customary reasons of respect, are taking a more neutral stand.  Some are jumping in between claimant and Mr. Tema, for whatsoever reason.  This is the instability.  I am not so quite sure about what is behind their jumping here and there.  I used to see this kind of instability in politics, as a previous adviser to a political government.  And the reasons are not for me to disclose here.  The question I am asking is what are the reasons for this instability? I note on evidence that Mr. Tema shared $130,000.00 surface agreement signing fees with people having “Sau’eha” family names. I did not see claimant’s name. 

17.	Whilst the “instability” continues to play, it is my considered view, that the status quo of the lands awaiting sub-division must be maintained pending trial.  On the strength of the parties’ case, I am satisfied on the materials before me that, if the evidence remained as it is to the end of trial, there is a higher chance for the applicant to succeed on his claim for sub-division and right to decide on lands covered under the 2009 CA and reliefs based on resulting or constructive trust.  Also strong, is his claim for financial benefits (as beneficiary) from financial gains made by Tema since October 2007 – December, 2015? I note that Tema admits to sub-division.

Locus Standi – Standing - Claimant

18.	Mr Tema does not deny that his holding of the PE in PN 1, 2, 3, 4 and 6 (“Lands”) is in trust for claimant and the GS family.  I reached this conclusion because:

18.1	Mr. Tema confessed that the Lands will be sub-divided when money is available and transferred to GS family.

18.2	There is evidence that by a CA executed by Tema in 2009, he had given sole rights to claimant and GS family to “make decisions” on certain lands.  I take it that these are lands awaiting sub-division.

18.3	Mr. Tema had shared financial gains from surface agreement signing fees, amongst 10 people, including a local church.  This is money paid by second defendant to landowners, as Ricky Lee confirmed.  If lands are owned by Mr. Tema solely, why is it that surface agreement signing fees were paid to “Landowners”.  Some of the recipients are named as Sau’eha.  Is this not confirming that Mr. Tema is holding these lands in trust for claimant and the GS family?

18.4	The lands were initially owned in custom prior to 2007.  The lands were acquired initially by Renbell Province and PE subsequently transferred to Mr. Tema.  The initial acquisition by the Province was made under S. 60, 62, 63, 64, 66, 68 (c) (i), (ii), (iii) and (iv) of Lands and Titles Act (Cap 133) as per Vesting Order issued by Commissioner of Lands dated 24/9/2007.  As a result of this acquisition, PE in more than 2,000 hectares of lands is now in Mr. Tema’s name.  This acquisition was made under Part V – Division 1 – Purchase or Lease of customary lands - Lands and Titles Act (Cap 133). Is this not the basis for the claimant’s assertion of trust property under the Lands and Titles Act (Cap. 133) as amended?  How can one person Tema owned solely more than 2,000 hectares of land formerly owned in custom?

19.	On the basis of my findings, in paragraphs 18, 18.1 – 18.4, claimant has a strong case for his assertion of a trust property going into trial.  That Mr. Tema is holding the lands in trust for claimant and GS family, as beneficiaries.  And if the evidence should remain as it is to end of trial, claimant stands a high chance of succeeding in his claim. For that reason, I am satisfied that the claimant and GS family have a strong case in trust as beneficiaries of the purported trust property.  Claimant therefore as a “beneficiary” has individual equitable interest and right to question the management of the purported trust property.  Claimant seeks equitable reliefs arising out of constructive or resulting under the Lands and Titles Act (Cap. 133) as Amended.  As a beneficiary, claimant has sufficient individual interest, independent of the GS family to seek equitable reliefs in trust, in regards to the purported trust property.  Therefore Rule 3.42 cannot be used to kill the claimant’s standing.  From the conflicting ss of support that I mentioned earlier (paragraph 16 above), there is evidence that claimant is authorised to act for the GS family.  For this reason, I would also find that claimant has standing to act on behalf of GS family. This case can be distinguished from Lilo case, in that, this case, support was given to the claimant, to instigate this proceeding, from the conflicting ss evidence. In addition in Lilo case, trusteeship emanates from a Timber Rights Determination process. This case trusteeship emanates from customary land acquisition and registration under Part V – Division 1 – Purchase or Lease of customary lands, under the Lands and Titles Act (Cap 133).

Application to Strike Out

20.	By application filed 5/1/2016, first defendant sought to strike out the claim, because Mr Sau’eha (Claimant) is not authorised to instigate this claim on behalf of GS family.  Application is presumably brought under Rule 3.42.  Under the said Rule, I cannot strike out, but only stay the proceeding.  I also found earlier that Claimant has standing.

21	As it turned out during oral submissions by Counsel Matthews QC, the first defendant is actually seeking to strike out the claim under Rule 9.75 – saying the claim is frivolous and vexatious; it disclosed no reasonable cause of action or is an abuse of court process.

Frivolous and Vexatious

22	A claim which is frivolous and vexatious is one that is lacking in merit or brought for an ulterior purpose.

23	The jurisdiction given to the Court to strike out a claim that is frivolous and vexatious should be sparingly used and in exceptional cases only, where the claim is devoid of all merit and cannot possibly succeed.  Leading case often cited as authority for striking out under the grounds stipulated in Rule 9.75 is Tikani –v- Motui (2002) SBHC further approved in the Court of Appeal case of Sa’oghatoga –v- Mugaba Atoll Resources Company (2015) SBCA 4.

24	In Norman –v- Mathews (1916) 85 LJKB 875 at page 859, cited with approval in Tikani (2002) SBCH 10, His Lordship Palmer CJ stated: -

“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 alleged cause of action, is one which is on the face of it is one which no reasonable person could properly treat as bona fide and content that he has a grievance which he was entitled to bring before the Court”.

No Reasonable Cause of Action

25	A reasonable cause of action according to Tikani is a cause of action with some chances of success, or where a tenable cause has been disclosed for the relief sought.  So long as the statement of case discloses some cause of action or raised some questions fit to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out.  It is only if it is found that the alleged cause of action is certain to fall that the statement of claim should be struck out (Tikani).

26	The power to strike out a claim for failing to disclose a reasonable cause of action must only be exercised in clear and obvious cases, where the claim is so bad as to be baseless or does not disclose an arguable case fit to be considered at trial or claims for a remedy not known to law.

Abuse of Court Process

27	In terms of what amounts to abuse of Court process, the test is whether on the facts of the claim, 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.  Striking out on this ground should be done sparingly in exceptional cases only, as in where the claim is devoid of all merit or cannot possibly succeed.

28	Considering all the materials before me, not only the claim, but on a “rough perusal and analysis” of the ss evidence, I am satisfied that this claim: has merit; is not brought for an ulterior purpose; has the potential to succeed, has a tenable cause disclosed for the reliefs sought, is not weak; and that the claim is not baseless or that it discloses a reasonable cause of action or an arguable case or it raises issues fit to be tried. Additionally, the equitable reliefs claimed under trust law are a remedy known in law. At this stage, I am entitled to reach conclusions on a “rough perusal and analysis” of the evidence, in addition to the pleadings. This is consistent with Rule 9.76, where the Court may receive evidence at the hearing of applications under R.9.75.

29	I reached the conclusions in the preceding paragraph for the following reasons:

29.1	I found in paragraphs 8.1 – 8.10, that there are issues that are fit to be tried in this claim.

29.2	The assertions on holding the lands in trust and the subsequent pending sub-divisions is likely to succeed, noting that Mr. Tema had admitted to pending sub-divisions – delay being due to lack of money.

29.3	The assertions that Mr. Tema had executed a CA in 2009, for claimant and GS family to make “decisions” on development affecting some of the lands meant that there is a merit in the claim.

29.4	The assertions on a resulting or constructive trust is a reasonable cause of action, because how can Mr. Tema claim he has sole PE title, when prior to 2007, the lands were held in custom and acquired under the provisions of Lands Titles Act (Cap. 133) – Part V – Division 1 – Purchase or lease of customary land.

30	Counsel Mathews QC, went at great length to submit that, the claim does not disclose any cause of action, because it does not seek to quash a registered land on fraud, or that the claim does not plead the details (specifics) of the purported trust, or that the claim is not for damages, etc.  Counsel did this by taking me through each of the paragraphs of the claim exposing the weaknesses of the claim emanating from the pleadings.  I already concluded above that the claim is not weak.  Alternatively, if the claim is defective and weak due to the improper pleadings, then the Court can order amendments to cure the defect in pleadings.  It is the view of the Court that the claim disclosed many questions (issues) fit to be tried.  The pleadings must close and then any weaknesses in the pleadings can be addressed through the process, of request for further and better particulars or interrogatories. If after such process, there is still defect in the pleadings; Court can order amendment to pleadings.

31	The Court therefore orders that:

31. 1	The Interim Injunction Orders I issued ex-parte, in December 2015 to continue but with amendments as follows: Orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12 continues.

31.2          Application to strike out claim is refused.

31.3	Costs in the cause.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE