Kavusu v Viulu [1998] SBHC 108; HCSI-CC 16 of 1998 (20 August 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 16 of 1998

DAVID LIVINGSTONE KAVUSU & OTRS

-v-

WIUTLYN VIULU & OTRS

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No. 16 of 1998

Hearing: 14th May, 1998
Judgement: 20th August, 1998

S. Watt for the Respondents/Applicants
P. Tegavota for the applicants/Respondents

PALMER J.: This is an application by notice of motion to have the originating summons filed 9th February, 1998 struck out on the following grounds:

(a) the Applicants lack the necessary standing to seek the declarations sought therein; and

(b) that this Court lacks jurisdiction to grant the declarations sought therein.

In the alternative, that the Applicants by themselves, their servants or agents be restrained from approaching or further communicating with the Respondents or members of their family in any way whatsoever pending the re-hearing of Land Appeal Case No. 6 of 1997 by the Customary Land Appeal Court (Western Province).

The Originating Summons filed 9th February, 1998 had inter alia sought the following declarations:

1. A declaration that the true boundaries of Kuvotu Land is from Chochole to Sambunu Rivers and more particularly described in the statement of Wiutlyn Viulu as contained in the Marovo Local Court Case No. 4/76.

2. A declaration that Ozangakiki, Kolobangara, Hihiovo and Chochole land are situated outside of Kuvotu Land.

The Respondents rely inter alia on the following affidavits:

(i) affidavit of Wiutlyn Viulu filed 28th April, 1998; and

(ii) affidavit of Siope Liupule filed also on the same date.

There are two grounds in the submission of the Respondents; first, on standing, and the second on jurisdiction.

On standing, reliance is placed on Order 58(1) which re ads:

“Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.”

Mr. Watt points out that the Applicant does not have any interest under the deed in question. In order for the Applicants to have standing to ask this Court to make a declaration, their rights must flow from the deed. This is not so in this application.

In his response to this submission, Mr. Tegavota could only say that it was in the interest of the parties that the boundaries were determined. But concerning any rights that might stem from this deed, he says nothing.

It is trite law that the rights of the Applicant must stem from that deed. None of the Applicants have any interest under that deed. They were not parties to the deed or related to the parties. If anything, it is the Respondent, Wiutlyn Viulu who had more right to seek a declaration from this Court, if that were possible. But even if he could or wanted, there appears to be a practicable problem not immediately obvious, highlighted by Mr. Watt at the hearing. This related to the fact that no physical survey on the ground had been done by the Local Court in respect of Kuvotu Land. Mr. Viulu in his affidavit filed on 28th April, 1998 conceded that the boundary description of Kuvotu Land in Land Case No. 4/76 as stated by him were the correct boundaries. The Applicants do not take issue with this. In fact their position is to reinforce that description. Unfortunately no physical survey of the land boundary was done by the Local Court (see paragraph 4 of the said affidavit of Wiutlyn Viulu). It is unfortunate too that no map was agreed upon by the parties and accepted as correct by the Local Court to delineate clearly on the ground the said boundary descriptions.

The crucial issue therefore regarding Kuvotu land as conceded by the parties to this case can now be reduced to the question of the description of the boundary of Kuvotu land on the ground. Where exactly on the ground does the boundary descriptions as agreed run? Once that issue is determined then that may solve one of the outstanding issues between the parties; though not necessarily all in that the Respondents appear to be claiming ownership rights over the rest of the concession area as well.

On the issue of jurisdiction therefore, obviously this Court would not have the jurisdiction to entertain this application for the same reasons given under the issue of standing. But even if this Court should otherwise have, it would not be able to make such declarations in view of the practical difficulties and dispute raised above which would have to be properly addressed by the Customary Land Appeal Court.

ORDERS OF THE COURT:

1. ORDER THAT THE ORIGINATING SUMMONS DATED 5TH FEBRUARY, 1998 BE STRUCK OFF ON THE GROUND THAT THE APPLICANTS LACK THE NECESSARY STANDING TO SEEK THE DECLARATIONS SOUGHT THEREIN.

2. COSTS OF THE RESPONDENTS TO BE BORNE BY THE APPLICANTS.

THE COURT.