Dika v Somana [2000] SBHC 94; HCSI-CC 242 of 1996 (12 May 2000)

CC 242 96 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 242 of 1996

SELWYN DIKA and OTHERS

V

DAVID LENGA SOMANA

High Court of Solomon Islands
(Muria, CJ.)

Civil Case No. 242 of 1996

Hearing: 8 May 2000
Judgment: 12 May 2000

Thomas Kama for Plaintiffs
Charles Ashley for Defendant

MURIA CJ: This application by the plaintiffs seeks an order from this Court to strike out the defendant’s defence and counter claim. It is brought pursuant to 0.27, r4 of the High Court (Civil Procedure) Rules. The plaintiffs claim, that the said defence and counterclaim are frivolous and vexatious and disclose no reasonable cause of action. Should they succeed, the plaintiffs also seek judgment in their favour in terms of their Statement of Claim.

Brief background facts.

This is a dispute arising out of the entitlement to baitfish royalties from Solomon Taiyo Limited (“the company”) in respect of baitfish obtained within the Rakata Baitground. The ownership of Rakata Baitground is therefore central in this case.

In mid 1981, in fact, on 24 June 1981 the defendant who was at the time, an employee of the company entered into a Baitfish Royalty Agreement with the company. That Agreement covered 1980, 1981 and 1982 at a specific rate of royalty payable per catcher boat per night in those three years. The defendant entered into the Agreement on behalf of his Eti Eti Clan who were said to be the owners of the Rakata Bait ground.

There was no challenge to the 1981 Baitfish Royalty Agreement until 1985 when the plaintiffs first knew about the existence of the Agreement between the defendant and the company. Having known about the Agreement the plaintiffs took steps to advise the company to cease payments of all baitfish royalties to the defendant until the ownership of the bait ground was determined. The company thereafter withheld royalty payments.

The question of ownership of Rakata Land had been the subject of litigation since 1981. The first of these disputes was dealt with on 10 June 1981 by West Ysabel Local Court between the present second plaintiff of the Bulau Clan and Allan Taravolo representing the Mamara Clan. The Local Court found in favour of the Mamara clan. The Bulau Clan was not happy with the Local Court’s decision and so they lodged an appeal against that decision to the Ysable Customary Land Appeal Court. That appeal was heard on 19 August 1982 and it was allowed adjudging that the Bulau Clan represented by Joses Lote was the owner of Rakata Land. There was no appeal to the High Court against that decision which is binding on the Mamara and Bulau clans. The dispute over Rakata Land did not end there. Following the discovery of the existence of the Baitfish Royalty Agreement in 1985, the second plaintiff took the matter of ownership of Rakata land firstly before the Chiefs. This time, it was against the defendant, David Lenga Somana. The Chief found in favour of the defendant. The second plaintiff then took the matter to the Local Court which on 17 January 1989 decided in favour of the second plaintiff. The defendant then appealed to the CLAC. Although the CLAC allowed the defendant’s appeal, it confirmed the ownership of the Land from Zuzuao to Pazagere in the Bulau Clan and from the west side of Pazagere to Rakata water in the Mamara Clan. The Eti Eti clan represented by the defendant has right to use that part of the land belonging to the Mamara Clan.

Again, the dispute over the Rakata Baitfish ground did not stop there. In 1992, two other plaintiffs joined in the dispute. The first plaintiff and third plaintiff joined with the second plaintiff and brought the case against the defendant. The defendant did not attend the hearing before the Chiefs. Subsequently, the three plaintiffs took the matter to the Local Court. The defendant attended the first day of the hearing on 19 August 1994 and raised objections which were overruled by the Court. The case was adjourned to the next day, 20 August 1994 at which time the defendant failed to attend. The Local Court proceeded to deal with the case and decided that the three plaintiffs were the owners of the land in question with their respective boundaries of the said land. The defendant did not appeal against that decision. Instead he applied to the High Court on 5 April 1995 to quash the decision of the Local Court. The High Court rejected the defendant’s application.

Where does this leave the defendant now? All the Courts below had at no time ever decided that the defendant’s Eti Eti clan had ownership right over Rakata Land. The closest the defendant’s claim got to was to be given the right to share the Mamara Clan’s portion of the Land as stated in CLAC’s decision given on 28 March 1990. The ownership of that portion of Rakata Land “belongs in custom” to Mamara clan. The decisions of the CLAC given on 28 March 1990, the Local Court decision given on 21 August 1994 and the High Court decision made on 18 May 1995 are all binding on the defendant and second plaintiff and the first and third plaintiff in respect of Local Court’s decision of 21 August 1994. Quite clearly, the claim by the defendant that his Clan owns Rakata Baitfish ground would be difficult to sustain in the light of those cases, especially against the plaintiffs in this action. This is the bottom line for any claim by the defendant of his right in the Rakata Baitfish ground.

Having said that, there is also the question of the defendant’s entitlement under the 1981 Baitfish Royalty Agreement of $31,166.78. This must be considered in the light of that Agreement to which the defendant was a party as well in light of the subsequent cases over the ownership of Rakata Land. In CC87/90, the High Court recognized the defendant’s claim over the said sum of $31,166.78 but subject to the settlement of the disputes as to who were entitled to those payments. There is therefore an arguable claim by the defendant, at least, to that amount and cannot simply be brushed aside at this stage. Whether or not he succeeds in maintaining that claim is another matter.

I have given this matter some thought and in the light of the materials before the Court, I do not think that it is right at this stage to terminate this action on the ground that that the defendant’s defence and counter claim are frivoulous and vexatious and discloses no reasonable cause of action.

I refuse the plaintiff’s application. I reserve costs to trial.

(Sir John Muria)
CHIEF JUSTICE