Asingera v Irara [2003] SBHC 153; HCSI-CC 108 of 2003 (17 September 2003)

CC 108, 2003, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 108 of 2003

ASKELON ASINGERA AND MOSI VISION LINK SERVICES AND BULACAN INTERNATIONAL (SI) COMPANY LIMITED

V

PETER IRARA AND GOLDEN GISA AND ARAM PWMONGO AND AGRIPAMONO

High Court of Solomon Islands
(Palmer J)

Civil Case Number 108 of 2003

Date of Hearing: 17th September 2003
Date of Judgment: 17th September 2003

P. T. Legal Services for the Plaintiffs
G. Suri for the Defendants

PALMER J.: There are two applications before me, a Notice of Motion for Judgment filed 8th August 2003 by the Plaintiffs and a Summons filed 12th September 2003 by the Defendants for inter alia leave to file out of time appearances and defence. At the beginning of the hearing, after having heard submissions of Counsels as to which application should be heard first, I ruled that the Summons filed 12th September 2003 be heard first as it would have direct impact on the application for judgment.

The submissions of the Defendants

Mr. Suri submits that the delay in filing memorandum of appearance and statement of defence were due to practical difficulties encountered by his clients when trying to seek legal instruction and documents which were relevant to their case. Learned Counsel submits that his clients have a viable defence in that they would be relying on the doctrine of res judicata by way of a 1963 court case in which the question of ownership over the land in dispute before this court had already been determined between the same parties. Thirdly, the Defendants rely on a mistake of fact which had given rise to the determinations by the Makira Provincial Executive (“MPE”) and subsequent issue of a timber licence. And fourthly, the Defendants had not sat on their rights in lodging an “appeal” against the determinations of the MPE.

Claim of the Plaintiffs

Plaintiffs on the other hand rely on a decision of the Arosi Local Court dated 19th April 1996 regarding customary ownership over Hanengai land in which ownership was awarded in favour of Askelon Asingera (the first Plaintiff) and Harry Ebasitoro. The defendants in that case were Sam Berry and Reuben Irara. Reuben Irara is the father of the first and second Defendants. The third and fourth defendants are also related to Sam Berry and Reuben Irara. The Plaintiffs say that the Defendants in this case are bound by that local court decision.

They also rely on a timber rights hearing conducted on 29th October 2002 at Bwauraha Village and a determination which identified the Plaintiff as the persons lawfully entitled to grant timber rights over the said land. A certificate of no appeal was issued by the Clerk of the Customary Land Appeal Court on 9th December 2002. Following this, a standard logging agreement dated 12th December 2002 was executed by the first Plaintiff with the second Plaintiff in respect of Hanengai land. A timber licence by way of an extension contained in the letter of the Commissioner of Forests (“Commissioner”) dated 19th December 2002 (Exhibit PW10 annexed to the affidavit of Paul Watoto filed 14th May 2003) was subsequently issued. Logging operations commenced in February 2003.

Prima facie or viable defence

The defendant’s defence is based primarily on a court decision of the Arosi Native Court in 1963 between Joy Garo (“Joy”) and Billy Mwaero (“Billy”) over Maetawa land. That decision was made in favour of Billy; Joy on the other hand lost that case. Joy is the mother of the first Plaintiff in this case. Billy is the uncle of Agripa Mono the fourth Defendant in this case. The fourth Defendant claims his rights through Billy.

The Defendants also say that Maetawa land boundaries are more or less the same as the land boundaries of Hanengai land now claimed by the first Plaintiff. They say that the first Plaintiff therefore is bound by that 1963 court decision. Unfortunately as at the hearing of this case, the Defendants were yet to locate the file containing that court decision and therefore were unable to produce a copy of that decision. They did however produce evidence which supports their claim of the existence of such a case in 1963. I accept their evidence on the balance of probabilities. I also accept their tentative submission for purposes of this interlocutory proceeding that a prima facie defence exists regarding this 1963 court case and binding on the Plaintiffs.

The second ground of defence relied on was based on a purported letter of appeal dated 7th November 2002. Note the determination of the MPE was made on 29th October 2002. Copy of that letter is annexed as “Exhibit AM2” to Agripa Mono’s affidavit filed 10th September 2003. I have taken time to peruse that letter. Unfortunately, I am unable to accept that it amounts to an appeal. Whilst the subject was headed “Appeal Against Decision Ref B/3/184 in favour of you stood as it was (dated 03/05/96)”, I am unable to accept that amounts to an appeal. There is no evidence to show that an appeal as such was addressed to the Clerk to the Customary Land Appeal Court.

The third ground of defence was based on an alleged mistake of fact. The first, second and third defendants alleged it was a mistake Hanengai land had been included in the determination of the MPE. The second Defendant, Golden Giza deposes to a letter of 29th April 2003 written by the Provincial Secretary of Makira Ulawa Province which they say confirmed such mistake. That letter reads as follows:

“Thank you very much for your letter on the above dated 18/4/03. According to the minute of the Timber Rights Hearing dated 29th October 2002, that particular piece of land was under dispute. There is nothing on the files to show whether that status has been changed.

But to say or blame the Provincial Executive for ignoring the dispute is incorrect. The Provincial Government was not aware of the illegal entry and was not a party to the action. Please liaise with the AVLS to peacefully leave that piece of land as soon as possible.

By copy of this letter, the AVSL management is being asked to see that her employees/operators leave the piece of land specified on your letter.

Should there be further questions or information please keep me informed.”

The letter was signed by the Provincial Secretary of Makira Ulawa Province.

I have taken time to consider this submission but again I am unable to accept that such letter is evidence of a mistake of fact and which is sufficient to amount to a viable ground of defence. A letter issued six months after the determination of the MPE cannot be used as the basis to nullify or change an earlier decision of the MPE. The proper way of dealing with such concerns is by way of an appeal! In any event in order for the mistake to be relevant it must necessarily relate to the time the matter came before the MPE. A mistake discovered hindsight cannot be used as the basis for overruling an earlier decision.

Further, the mere fact the land was under dispute does not mean that the MPE lacks jurisdiction to deal with the question of timber rights, that is, as to which persons were lawfully entitled to grant timber rights. They had made a valid determination and so if the Defendants allege that a mistake had been made, then the proper course of action to take would be to appeal to the Customary Land Appeal Court. There is no evidence to suggest that the MPE were labouring under a mistake of fact when they dealt with that matter.

The only viable defence which the Defendants have established lies on the status of the 1963 native court case.

Reasons for the delay in filing appearance

The obvious reason given for the delay in taking instructions was the remoteness and isolation of the home villages of the Defendants as well as the difficulties in getting transport to and from Honiara. Further, there were delays on collecting the relevant documents that would be necessary to challenge the validity of the Plaintiff’s claims of ownership over Hanengai land. The total period of delay was over a period of three months. The Defendants eventually filed memorandum of appearance on 9th September 2003 and summons for leave to file out of time memorandum of appearance and defence three days later on 12th September 2003. I am not satisfied delay has been inordinate nor excusable in filing application for leave to file out of time memorandum of appearance and defence. Further, I am not satisfied that the other party will be prejudiced by the orders of the court in granting leave. Accordingly orders sought in the summons of the Defendants filed 12th September 2003 with the exception of paragraph 2 are granted. Costs in the cause.

THE COURT