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Lolo v Kwaioloa [2014] SBHC 25; HCSI-CC 140 of 2013 (7 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

SAMSON LOLO
Claimant

And:

MICHAEL KWAIOLOA
1st Defendant

And:

NELSON KONAI
2nd Defendant

And:

ATTORNEY GENERAL
3rd Defendant

Mr. L. Kwana for the Claimant.
Mr. B. Hiele for the 1st & 2nd Defendants.
Mr. D. Damilea for the 3rd Defendant.
Date of hearing: 4 March 2014.
Date of Judgment: 7 April 2014.

RULING

Apaniai, PJ:

Introduction.

1. This is an application by the 1st and 2nd Defendants, Michael Kwaioloa ("Mr. Kwaioloa") and Nelson Konai ("Mr. Konai"), to strike out this claim on the grounds that it discloses no reasonable cause of action and that it is an abuse of the court process.
   

Issues.

2. The issues in this application are whether the claim discloses no reasonable cause of action and whether the claim is an abuse of the court process.
   

The law - no reasonable cause of action.

3. Where a claim discloses no reasonable cause of action, it is not in the interest of justice that time and money should be wasted in pursuing the case further. The case should be dismissed at the initial stage of the proceeding.
   
4. However, striking out a claim and dismissing a case summarily is a drastic action and should done only in cases where it is very clear that the claim is baseless and so hopeless as to be described as abuse of process[1]. That means as long as the statement, or the particulars, of the claim disclose some cause of action, or raise some question fit to be decided by the court, the mere fact that the case is weak and not likely to succeed is no ground for striking it out[2].
   
5. In determining the issue whether a reasonable cause of action is disclosed, the court looks only at the claim and considers the facts asserted in the statement of the case and then decides whether, assuming that the asserted facts are true, there is a viable case against the defendant for the relief sought[3]. Extrinsic evidence is not necessary to prove the issue[4]. Where the asserted facts do not support the relief sought, there is no cause of action.
   

The law – abuse of process.

6. A claim can also be struck out and dismissed at an early stage if it is shown that the claim is an abuse of the legal process. The legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end. The process is said to be abused because it had been used to effect an object not within the scope of the process.[5]
   

The claim.

7. In this case, the reliefs sought by the claimant are damages for trespass on Fuliferai Takisi customary land ("the Land"); permanent injunction against the Defendants, their servants and agents from entering the Land; a declaration that the land acquisition for Ere'ere and Fairu customary lands held on Faumamanu on 31 July 2012 was null and void; an order that the Defendants pay him $300,000.00; an interim order restraining the Defendants from entering, or engaging in any undertaking, agreement or transaction for the purpose of registering the Land; and, Costs.
   
8. The facts asserted by the claimant in the statement of the case in support of the reliefs are, in a nutshell, that he represents his tribe which owns the Land (paragraph 1); that the evidence of his tribe's ownership of the Land are Civil Case No. 9/59 dated 25 February 1959 and Civil Case No. 17/59 dated 27 September 1959 (paragraph 3); that under the Memorandum of understanding dated 20 May 2011 ("MOU") the Faumamanu Growth Centre (the "Centre") was supposed to have been established at the original Faumamanu District substation (paragraphs 5 and 7); that the defendants have instead established the Centre on the Land without his consent or the consent of his tribe (paragraphs 10 and 14).
   
9. Assuming that those asserted facts are true, do they disclose a tenable case for the reliefs sought by the claimant? I think they do.
   
10. Mr. Hiele, of counsel for the 1st and 2nd defendants, has referred to paragraph 14 of the claimant's sworn statement filed on 18 February 2014 in which the claimant said that he would file a proper claim before the appropriate chiefs if an order is made allowing him to do so. Mr. Hiele submits that that paragraph is an indication that the ownership of the Land has not yet been settled or even referred to the chiefs and therefore the claim of ownership by the claimant is a mere assertion and so this claim should be struck out.
    
11. I do not accept that submission. I have earlier stated the legal principle that in determining the issue whether a reasonable cause of action is disclosed, the court looks only at the claim and considers the facts asserted in the statement of the case and then decides whether, assuming that the asserted facts are true, there is a viable case against the defendant for the relief sought.
    
12. In this case, assuming the facts averred in the statement of the case are true, I have no doubt in my mind that there is a viable case against the defendants for the relief sought. As to the issue of ownership, the claimant has referred to Civil Case No. 9/59 dated 25 February 1959 and Civil Case No. 17/59 dated 27 September 1959 as conferring ownership of the Land on his tribe. Whether or not that is so is an issue to be determined at trial.
    
13. I am not satisfied that no reasonable cause of action has been disclosed in this case, nor am I satisfied that the claimant has abused the legal process in filing this claim. I am satisfied that the claimant has brought this claim for no other purpose than to determine his rights in relation to the land he claims as Fuliferai Takisi customary land. Surely, that cannot be an abuse of the legal process.
    

Decision and orders.

14. It follows therefore that this application is dismissed with costs.
    
15. The orders are:-
    

[1] The application is dismissed.

[2] The 1st, 2nd and 3rd defendants shall pay the costs of the claimant on standard basis to be taxed if not agreed, such costs to be paid within 14 days after the date of agreement or taxation as the case may be.

[3] The case is listed for mention at 9.30am on Thursday 1 May 2014.

THE COURT

_________________________
James Apaniai
Puisne Judge.

^[1] Steward Tatalu –v- Elison Lifuasi & Alban Leaga – cc. No. 146 of 1996.
^[2] Reef Pacific Trading Ltd & Others –v- Thomas T. Kama – cc. 56 of 1996
^[3] Earthmovers (Solomons) Ltd (trading as Pacific Timbers) –v- Samuel Thao & Others (trading as Aola Timber Exports Agency) – cc. No. 65 of 1997.
^[4] Kimitora v HFC [1998] SBHC 53; HC-CC 01 of 1998 (9 March 1998)
^[5] Goldsmith –v- Sperrings Ltd [1977] 1 WLR 478.