Peoko v Bako [2022] SBCA 17; SICOA-CAC 15 of 2019 (12 August 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Peoko v Bako
Citation:
Decision date:	12 August 2022
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona J)
Court File Number(s):	15 of 2019
Parties:	Edmond Hillary Peoko, Bele Ivan Ratu v Lucy Bako, Douglas Rove, Selwyn Dika, Bolton Hebala, Judah Sakiri, Daniel Derol Pitakaka, Nelson Bako, Hopkins Zea, Susan Salahiga, Ingrid Habu, Adrian Koti Bako, George Kolae Hagela, Sarah Nule, Donald Nomi, Frank Habotu, Paul Tanavalu, MSL Import Company Limited, Isabella Lam, Danny Lam
Hearing date(s):	28 July 2022
Place of delivery:
Judge(s):	Goldsbrough P Palmer CJ Hansen JA
Representation:	Appellant: Togamae, W Respondent: Rano with Kilua S Taki P
Catchwords:	Strike out wasted costs
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule 2007, r3.42,
Cases cited:	Mas Solo Investment Ltd v Nesa [2021] SBCA 3
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-6

JUDGMENT OF THE COURT

1. This appeal is brought against a decision that saw a claim struck out. When that order was made the Court was dealing with two applications for strike out, brought by different parties in addition to an application for default judgment brought by the present appellant.
2. The present appellants, Edmond Hillary Peoko and Ivan Rotu Bele, representing the Sinagi Laena tribe of Barora Fa-Pizuana land, Kia, Isabel Province in Civil Case 119 of 2012 and Ivan Rotu Bele representing himself in Civil Case 75 of 2015 on 9 February 2016 filed an application for judgment in default of a defence to an amended claim filed 27 October 2015. The claim sought declaratory and injunctive relief in relation to land to be used for logging in Barora Fa-Pizuana land.
3. On 23 May 2012 an application had been filed seeking strike out by the 1^st respondents, being the first defendants in Civil Case 119 0f 2012. A further application for strike out was filed by the second respondents on 1 December 2017. Both applications raised issues of standing amongst other issues such as jurisdiction. In the second application it was asserted that the 1^st named claimant, Edmond Peoko was deceased.
4. Civil claim 75 of 2015 was ordered to be consolidated with Civil Claim 119 of 2012 on 27 June 2016. The application for strike out brought by the 2^nd respondents was amended to include an application that counsel for the appellants should be barred from acting for the appellants because of a conflict of interest.
5. It was thus when all of these various applications were heard together, after far too many interlocutory order made on both ex parte and inter partes applications over many years, and a decision given on 25^th March 2019 after hearings in March and August 2018.
6. It is that decision which is the subject of this appeal beginning with an appeal against the decision that counsel for the appellant should no longer act in this matter. We heard submissions from counsel for the respondents at the commencement of this hearing in order that the Court might determine this issue before embarking on the substantive hearing.
7. The principal reason for the application, that of counsel for the appellants having previously acted for a named defendant was removed when the claim was amended to remove that named defendant. A further ground for the application is the notion that counsel for the appellants together with his wife as a customary landowner, operated an eco-tourism business on part of this land.
8. We do not consider that this interest conflicts with counsel’s duty to his clients or to the court. It is his wife who maintains ownership of part of this land, not counsel and the eco-tourism business is unlikely to be affected whatever the outcome of these proceedings.
9. As far as the conduct of this appeal is concerned, we also considered the effect on the respondents should this appeal be removed from the lists whilst the appellants find alternate counsel. The matter has a long history of delay and further delay to allow for the appellants to instruct a new counsel would not assist any of the parties, introducing as it would a further delay.
10. We determined that counsel for the appellants should be allowed to continue to act for his clients in this appeal and to that extent allow the appeal against that part of the order prohibiting him from doing so.
11. As set out in an extensive judgment, the claim in 119 of 2012 was struck out, and interlocutory relief ended, when the trial judge found that the appellants had not shown their entitlement to act as representatives of the custom owners under Rule 3.42 of the Solomon Islands Court Civil Procedure Rules, 2007 (CPR). He further found that the appellants lacked standing in terms of reliance on any decisions in their favour on the question of customary ownership. He made no order in relation to 75 of 2015, which claim survives regardless of the result of this appeal.
12. Determined without issue was that part of the claim questioning an order made under the Forest Resources and Timber Utilisation Act (FRaTU Act) by the Minister on 17 October 2014. As indicated by the Office of the Attorney General, that notice itself was revoked by a subsequent revocation notice issued by the Prime Minister's Office. Thus, the question of exemption from compliance with the provisions of FRaTU Act falls away.
13. The appellants point to an earlier ruling which impliedly acknowledge the standing of the appellants to bring their claim. That decision appears in the appeal book at page 457 but cannot, in our view, be said to support that submission. It is a ruling given without any indication that a hearing has taken place and on what evidence and without reasons. It cannot be said to amount to a finding after a contested hearing that the claimants had standing.
14. The appellants point to a lack of any decisions in favour of the defendants made under the FRaTU Act suggesting that as a matter of public policy, the defendants should not be allowed to benefit for unlawful timber felling activities. It further points out the lack of any relevant Development Consent. Reference is made to Mas Solo Investment Ltd v Nesa [2021] SBCA 3 (Mas Solo) wherein it was found that the right to sue for environmental damage was not confined to those who could demonstrate ownership.
15. This claim was based on entitlement to grant timber rights. The claim sought to stop others from seeking timber rights or holding themselves out as entitled to grant timber rights because they were not the proper people to do so, whereas the claimant were. It is not a Mas Solo scenario. There may have been an element of environmental damage, but there claimants were not complaining of environmental damage per se but seeking for themselves the financial proceeds of logging activities based on their assertions of ownership.
16. It seems that the trial judge was not convinced by the claimants assertions of ownership as against those of the defendant, hence the decision to strike out. He carefully set out the matters as pleaded in the defence which had been filed late and concluded that the defence had merit, hence his decision not to grant default judgment and then went on to consider what the claimants relied upon to support their claim, and came to the conclusion that they were lacking.
17. We cannot see any flaw to his reasoning in that regard. He was correct when he concluded that the claimants lacked the necessary standing to represent the Sinagi Laena tribe of Barora Fa-Pizuana land and that the claimants whilst entitled to some identified blocks of land within Barora Fa-Pizuana do not own the whole of it.
18. This appeal was not heard when it should have been owing to an inexplicable delay in the arrival of counsel for the appellants. Counsel between themselves, at our request, determined how an order for wasted costs should be framed, payable by Mr Togamae personally.
19. In the event, apart from the order setting aside the prohibition on counsel Togamae acting in this matter, the appeal is dismissed and the orders striking out the claim in 119 of 2012 upheld. Costs of and incidental to this appeal to be paid to the respondents by the appellants.

Goldsbrough (P)
Palmer (CJ)
Hansen (JA)