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HIGH COURT SOLOMON ISLANDS
Civil Case 138 of 1994
LUXTON JOVERE
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JACOB MAKOTO AND
NORTH NEW GEORGIA TIMBER
CORPORATION
High Court of Solomon Islands
Before: Frank O. Kabui, J.
Civil Case 138 of 1994
Date of Hearing: 16th
Ner 2001
Date of Judgment: 23rd
November 2001
Mrs. A. N. Tongarutu for the
Plaintiff<
Mr. J. Katahanas for the
Defendant
JUDGMENT
(Kabui, J):
By Summons fons filed on 3rd May 2001, the 1st Defendant
seeks the following orders -
1. The action be struck for
non - compliance and disobedience b Plaintiff of an peremptoryptory order of
the Court made
on 28th March, 2001.
3. A consequential order
that the funds presently held by Sol - law alaw and ANT Legal Services in joint
trust account
No. 01 – 229114101 - 4 in the National Bank of Solomon Islands
Limited be paid to the First Defendant’s solicitors trust account.
4. The Plaintiff pays the
First Defens costs of an incidental toal to this application on indemnity
basis.
The Background
This case was commenced by a
Writ of Summons filed on 3rd May 1994. An amended Statement of
Claim was filed on 2nd September 1999. There had been gaps
between pleadings, changes of Solicitors for the Plaintiff and a number of
interlocutory
proceedings. No certificate of readiness for trial has been
filed. Although pleadings have closed, the matter of settlement
out of Court
commenced by the Plaintiff remained outstanding. The Plaintiff was ordered
by Muria, C.J. on 28th March 2001 to conclude the out of court
settlement process within 21 days from the date of the Court order being 28th
March 2001 above. The Plaintiff failed and the 1st Defendant
seeks to strike out the Plaintiff’s action for that reason.
Non - compliance with the order
of the court datedup>th March 2001
In order to appreciate what
happened resulting in non - compliance with the Court Order,s necessary
to trace race the
steps taken by the Plaintiff to settle the case out of Court
within 21 days directed in the Court Order signed and perfected
on 3rd
April 2001. The first step taken was that the Plaintiff’s Solicitor, Mrs.
Tongarutu, wrote to the Plaintiff on 3rd April 2001 informing her
client that he had 21 days to reach a settlement out of Court and that the
Plaintiff should
return to Honiara to see her or Mr. Tegavota about the
matter. At that time, the Plaintiff was residing on Malaita. She also
wrote
on 29th March 2001 to Mr. Tegavota informing him about the 21
days period of time for settlement out of Court and told Mr. Tegavota
to
continue with the settlement talks. Mr. Tegavota was at that time being
engaged by the Plaintiff to negotiate a solution
between the parties in view
of the court order. The Plaintiff returned to Honiara at the end of April
2001 and left for
the Western Province at the end of May, 2001. By this
time, the 21 days period had lapsed. The 21 days period lapsed on 23rd
April 2001. The Plaintiff s Solicitor filed a Summons on 24th
April 2001 seeking orders for directions. The Summons was never heard though
set down for hearing at 2:30 pm on 16th May 2001. The Plaintiff’s
Solicitor subsequently filed a Notice of Motion on 16th May 2001
seeking enlargement of time in respect of orders made on 9th
September 2000 and 3rd April 2001 respectively. No time has yet
been set for the hearing of this Notice of Motion. The 1st
Defenin the meantime took aook action on 3rd May 2001 as
permitted by Muria, C.J.’s order dated 28th March 2001. The
hearing of the 1st Defendant’s Summad been delayed twice due
due
to the absence of the Plaintiff’s Solicitor on medical ground. There can
therefore be no doubt that the 1st Defendant took action within a
reasonable time to strike out the Plaintiff’s action.
A peremptory order is an order,
which requirperson to do something within a fixed time or suffer the
he
consequences
(see 45 _ Halbury’s Laws 4th Edition para 1149).
In Beazley v Bailey [1846] EngR 989; (1846) 16 M&W 58, Parke B. at 59 said,
“Themptory order is
only the expression of the then opinion of the judge; but it is not not
absolutely final; neither
does it import any undertaking or contract on the
part of the defendant. The meaning of the word is only that the judge makes
an absolute order, - but, like all other orders, liable to be varied if he
thinks fit”
(see Words and Phrases legally defined volume 3, Third Edition, K
- Q at 347).
Again, in Falck v Axthelm
[1890] UKLawRpKQB 209; (1889) 24 Q.B.D., 174, Lopes L.J. at 177, said,
“With regard to the
meaning of the word “peremptory” in the order, Ier, I take it to mean that the
order for extension
of time is given on the footing that it is to be final
unless some very special and urgent circumstances are brought forward
as a
reason for altering it”.
However, the question to be
asked is when does an ordcome a peremptory order? As in Falck v
Axthelmm cited above, the Master in making the order specifically said it
was a peremptory order and it was so. What about where the
order is made but
the judge is silent in not saying that the order he makes is a peremptory
order? I think the answer
lies in the definition of the word “peremptory”
itself defined in the cases cited above. That is, an order requiring a
person to do something within a fixed time and will suffer the consequences
of failing in doing so is a peremptory order.
In my view, Muria, C. J.’s
order dated 28th March 2001 was a peremptory order because it
fixed 21 days during which the Plaintiff must conclude the out of Court
Settlement process in default of which, the Plaintiff’s action would be
struck out on application by the 1st Defendant. The order however
can be varied provided special and urgent circumstances can be advanced to
alter it. In
this case, the attempt to vary Muria, C.J.’s order by the
Plaintiff was made by him on 16th May 2001, when his Solicitor
filed a Notice of Motion on 16th May 2001 seeking extension of
time. As I have said, this Notice of Motion has not been set down for
hearing as yet.
Delay by the Plaintiff
There can be no doubt the
Plaintiff did come to the rescue too late. Whilst there is some evidence
in indicating reasons
for the need to vary Muria, C.J.’s order, there is no
evidence to explain why the application for variation upon the Notice
of
Motion filed on 16th May 2001 was not proceeded with though late
it was in this case. There was a delay of more than 5 months. I do not know
why the Plaintiff’s Solicitor sat on the Notice of Motion for she must be
taken to be aware of the 1st Defendant's Summons filed on 3rd
May 2001. She has not so far asked for a hearing date. She has not yet
obtained a court order to vary Muria, C.J.’s order
dated 28th
March 2001. The Order has lapsed without variation. There can be no other
conclusion than to say that the court order
had been disobeyed by the
Plaintiff. Whether the disobedience was intentional and contumelious is
another matter to be
decided on the facts in this case. According to Diplock
L.J. in Allen v Sir Alfred McAlpinie & Sons [1968] 1 A.E.R. 543 at
556, disobedience to a peremptory order of the Court would be default in the
nature of being intentional and contumelious.
In this case, the Plaintiff’s
Solicitor had over 5 months to request a hearing date for the variation of
the order but
has done nothing so far to rectify the Plaintiff’s position.
In the context of this case, a delay of over 5 months can be regarded
as
constituting inordinate delay. This
is so because here the threat of striking
out the Plaintiffs action was a real possibility after 21 days so that the
Plaintiff
s Solicitor would have no choice but to act fast within the time
limit set by the order of the Court or to quickly vary the
court order to
extend time to avoid the action being dismissed on the application of the 1st
Defendant. At page 561 in McAlpine’s case cited above, Saloman L.J.
said-
The time limit of 21 days was
not a great deal of tihere is evidence to show thow that the Plaintiff’s
Solicitor could
have applied for variation within time but for some
unexplained reason decided to apply instead, for directions on 24th
April 2001. She subsequently did the correct thing by filing a Notice of
Motion on 16th May 2001 but failed to pursue it to conclusion.
The delay was the fault of the Plaintiff’s Solicitor although obviously the
Plaintiff would suffer personally than his Solicitor for such fault. Be that
it may, I cannot accept tardiness by the
Plaintiff’s Solicitor. I would
strike out the Plaintiff’s action for non - compliance with Muria, C.J.’s
order dated
28th March 2001. Having said that, the cause of
action being struck out is a cause of action that arose under customary law.
A cause of action in customary law can only be entertained by the High Court
under Order 21, rule 30 of the High Court (Civil
Procedure) Rules 1964 (the
High Court Rules). It is therefore important to determine whether or not
there is a cause
of action under customary law over which the High Court has
jurisdiction. To my mind, the issue is really to do with the jurisdiction
of
the High Court to determine customary ownership of land claimed by the
Plaintiff. Non - compliance with Muria, C.J.’s
order dated 28th
March 2001 alleged by the 1st Defendant's Summons became an issue
only because custom was pleaded in the High Court by the Plaintiff in the
first place.
I now turn to the issue of cause of action in this case.
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Cause of Action Disclosed in
the Statement of Claim
The 1st Defendant
also clan the alternative that the Plaintiff has no cause of actionction in
law. The Plaintiff filed a Writ
of Summons on 3rd May 1994
endorsed with a Statement of Claim. An amended Writ of Summons was filed on
17th March 1995 endorsed with a claim that he was a tribal leader
of his tribe. He also claimed damages for breach of statutory
duty under the
3rd Schedule to the North New Georgia Timber Corporation Act
(Cap. 43) and other relief stated therein. A further amended Statement of
Claim was filed on 2nd September 1999. The Plaintiff sought
therein orders that royalties to the tune of $1.3 million were due to him
and his
tribe derived from logs extracted from land areas between Mase to
Barora within Lupa Land. He also claimed damages for breach
of statutory
duty under the 3rd Schedule to the Act plus costs and other
relief stated therein. The basis for his claims was that he was a member of
the landholding tribe in the areas specified in the 1st Schedule
to the Act. Further, he alleged that he was the successor to Philemon Tingo
referred to in the 1st Schedule to the Act. Furthermore, he
alleged that being a tribal chief within the Lupa Land, he had received
royalties
distributed by the 2nd Defendant in the past and was
entitled to receive royalties as a successor to his late father Tingo. He
concluded that
he was entitled in custom of the Lupa landholding tribe
living within land areas between Mase to Barora to receive royalties
from
the trees extracted from those land areas of Lupa Land. In his defence filed
on 12th September 1995, the 1st Defendant denied the
claim made by the Plaintiff. The 1st Defendant also filed an
amended defence on 6th October 1999 which was further amended on
22nd May 2000. The Plaintiff’s reply was filed on 23rd
August 2000. Clearly, a cause of action under custom was pleaded by the
Plaintiff.
Issues dsed by the
pleadings
These are the basic issues
disclosed by the pleadings. The other issues are incidently in nature.
The fire first issue
is that the Plaintiff claims to be a member of the
landholding tribe that owns land between Mase to Barora in Lupa Land. The
second is that he claims to be the successor of his father Philemon Tingo
who was a tribal chief within Lupa Land and
is therefore entitled to receive
royalties from the 2nd Defendant. The third is that he claims
that he is entitled in custom to live within Lupa Land and to derive benefit
from
the timber resource therein. All these issues are customary issues, all
relating to customary land in one way or another. Whilst
I am mindful of the
effect of Jacob Makoto and North New Georgia Timber
Corporation v Luxton Jovere (Civil Appeal No. 11 of 1996), I do not
think in this case, the Plaintiff had sufficiently complied with Order 21,
rule
30 the High Court Rules. The Amended Statement of Claim filed on 2nd
September 1999 was too general and ambiguous in nature that it attracted a
call for further and better particulars from
the 1st Defendant
filed on 11th October 1999 and to which answers were filed on 11th
May 2000. Despite the narrowing of issues in the Plaintiff’s reply filed 23rd
August 2000, the issues remain issues of customary law affecting land.
However, inspite of insufficient compliance with
Order 21, rule 30 above,
the Statement of Claim does disclose a cause of action in custom. Gandly
Simbe v East Choiseul Area Council, Eagon Resources Development
Company Limited, Steven Taki and Peter Madada (Civil Appeal No. 8 of
1992) makes it very clear that ownership of customary land is the exclusive
preserve of the Local
Courts. Ownership of customary land does however
include matters affecting membership of the tribe that owns the land in
question and the status of any Chief of that tribe and what role that chief
plays in the tribe regarding interests in land.
In Harold Hilly v
Letipiko Balesi and Others (Civil Case No. 224 of 2001), I, in my
ruling at pages 5 - 6, said
“...One issue is fairly
ear in this dispute. The claim by the Plaintiff that he ande and members of his
family and others
are members of the Nono tribe is being disputed by the 1st
to the 4th Defendants. That is to say that on that basis, the
Plaintiff cannot claim locus standi in the High Court because the triable
issues disclosed by the evidence before the Court are triable issues of
custom to be heard and determined in the Chiefs’
forum or the Local Court.
It follows therefore that on the authority of Gandly Simbe v East
Choiseul Area Council, Eagon Resources Development Company Limited, Steven
Taki and Peter Madada (Civil Appeal Case No. 8 of 199?), the High Court
would have no jurisdiction to deal with issues of custom. Having said that,
it should be stated that Gandly Simbe’s case cited above Is an
authority only in so far as the determination of customary land is the
exclusive preserve of the
Local Court. The case says nothing about matters
of custom other than the determination of the ownership of customary land.
The determination of the membership of a tribe is not strictly, it seems, a
determination of ownership of customary land
nor is the determination of the
need for members of a tribe to consult each other on matters of logging on
their land.
In terms of section 6 of the Local Courts Act (Cap. 19), the
Local Courts do seem to have exclusive jurisdiction also to deal with custom
matters apart from the determination
of the ownership of customary land. The
role of Chiefs in sections 12 to 14 of the Local Court Act (Cap.19) is only
restricted
to customary land disputes. Can it therefore be said that Chiefs
are excluded if the matter in dispute has nothing to do with
the
determination of the ownership of customary land? In my view, Chiefs are
entitled to deal with non-customary land
disputes with the consent of all
the parties outside of the jurisdiction of the Local Courts. If one of the
parties is
not happy with the determination of the Chiefs, that party may
take his or her case to the Local Court. In fact, this was also
the case
with land disputes before the functions of the Chiefs were formalized in
this regard in 1985 by an amendment
to the Local Courts Act. It seems that
the High Court does also have concurrent jurisdiction to deal with matters
of custom other than customary
land disputes under Order 21, rule 30 of the
High Court (Civil Procedure) Rules 1964 (the High Court Rules), provided the
particular custom is pleaded with sufficient particulars. However, this
point has never been raised in that the High Court
may well have concurrent
jurisdiction in matters of custom though considered by the Court of Appeal
in John Sori v Toata Gagame & Others (Civil Appeal Case No. 6 of
1997). As I have said, the issue of concurrent jurisdiction of the High
Court over custom is
yet to be resolved. In the meantime, Gandly Simbe’s
case on appeal cited above remains the authority in this jurisdiction on the
issue of exclusive jurisdiction being the
preserve of the Local Courts in
the determination of the ownership of customary land”...
At pages 7-8, I concluded thus,
“...This
para paragraph disputes the correctness of paragraphs 5 of the 1st
Defendant's affidavit filed on
25th October 2001,
in which he denies that Mr. Hilli is a member of the Nono tribe because Mr.
Hilli is a descendant of a
different tribe from the Nono tribe. There is
therefore a dispute about land rights in respect of Nono Land. Clearly,
membership of the Nono tribe would entail rights to Nono Land whatever those
rights may be in custom. As such the land rights
and will have to be dealt
with by the Chiefs and the Local Court. This is a triable issue to be
brought before the Chiefs
first and the Local Court later on if necessary.
The High Court is out of it for the moment. (see Nathan Kere v Paul
Karana (Civil Case No. 258/2000)) and (MSL Import and Export Company
Limited v David Maure Civil Case No. 66/2001)...”
However, in this case, unlike
the Hilly case cited above, the issues under customary law are before this
Court for determination.
Being customary land issues obviously suggest that
the issues must be dealt with by the Local Court on the basis of Simbe’s
case cited above. In practice, the Chiefs may have to deal with them in
the first place. In saying this, I am all the time mindful
of the remarks
made by the Court of Appeal in its judgment in Jacob Makoto and North New
Georgia Timber Corporation v Luxton Jovere (Civil Appeal No. 11 of 1998)
to the effect that the issues of customary law be remitted to the High Court
and be dealt
with by the High Court according to law. I think the problem
with the judgment in Civil Appeal No. 11 of 1998 is that we were
not aware
of decision of the Court of Appeal in Simbe’s case delivered on 9th
February 1999 which effectively over-ruled Fugui and Another v Salmac
Construction Company Limited and Others [1982] S I L R 100 thus
confirming the Court of Appeal decision in Allardyce Lumber Company
Limited and Dovele Development Company Limited v Nelson Anjo (Civil
Appeal No. 8 of 1996). On this basis, Order 21, rule 30 of the High Court
Rules must necessarily be restricted
to non - customary land matters only
although in normal circumstances such matters would also be dealt with by
the Chief
s, and the Local Court. Concurrent jurisdiction of the High Court
in non-customary land matters is an issue to be left for
another time. In
this case, my view is that the High Court has no jurisdiction to determine
the custom issues raised
by the Plaintiff in his amended Statement of Claim.
The Plaintiff would have to canvass the issues before the Chiefs, the Local
Court and the Customary Land Appeal Court. I would strike out the
Plaintiff’s action in the High Court. The creation
of the joint trust
account No. 01-229114101 - 4 in the National Bank of Solomon Islands Limited
was a result of an interim
order made by Palmer, J. on 27th July
1994. My striking out of the Plaintiff’s action applies only in so far as
the triable issues are not to be decided
by the High Court. So it goes
without saying that that being so the High Court would have no jurisdiction
to make any
interim orders in respect of triable issues that are not pending
before it. The High Court does however have power to make
interim orders to
assist the Chiefs or the Local Court in disputes pending before them. In
this case, that situation
has not yet arisen. However, if I grant the
consequential order sought in paragraph 3 of the 1st Defendant’s
Summons, the Plaintiff may never have the chance to protect his interest if
he decides to take his dispute
to the Chiefs and the Local Court in the near
future after today’s judgment. In order to balance the interest of the
parties in this regard, I would grant the order sought but would suspend it
for 30 days from today to allow the Plaintiff to
pursue his claims in the
Chiefs’ forum or in the Local Court. Failing in doing that, my order will
take effect on the
30th day from today. This means that if the
Plaintiff takes action in the Chiefs’ forum or in the Local Court before the
expiry
of 30 days, the interim order made by Palmer, J. remains in force to
protect his interest, if not, it will automatically expire
at the end of 30
days. I make this order under Order 63, rule 5 of the High Court Rules. The
Order of this Court is that-
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1. The Plaintiff’s acte
struck out
2. The consequential order
in paragraph the 1st Defendanendant’s Summons be granted but to
be suspended for 30 days from today after which the order made by Palmer, J.
on 27th July 1994 will be discharged automatically.
3. The Plaintiff will meet
the costs of s of this application to be taxed if not agreed.
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The 1st
<
F.O. Kabui
Judge
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