Toto v Samani [2009] SBHC 36; HCSI-CC 380 of 2005 (31 July 2009)

IN THE HIGH COURT SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case 380 of 2005

BETWEEN:

STEPHENUS TOTO
(Representing the Fiu Tribe)
Claimant

AND:

DAVID SAMANI
(Representing the descendants of late Tege)
First Defendant

AND:

JOHN LUSIMANI
(Descendants of late Maenaasi)
Second Defendant

Date of Hearing: 27 July 2009
Date of Decision: 31 July 2009

Mr. Nori for Claimant
Mr. Samani Dausabea as representative of first and second Defendants

DECISION ON APPLICATION FOR STAY AND FOR CONTEMPT ORDER

Cameron PJ

1. By a decision dated 15 September 2006 this Court made a finding that the first and second defendants were unlawfully occupying and trespassing on Fiu land in East Kwara’ae, Malaita Province. The Court ordered them to vacate the property. The claimant represents the Fiu tribe.

2. Despite this order, the first and second defendants failed to vacate the land. A writ of possession was then issued against them, but they remained on the land. Ultimately, in March 2009 the claimant filed an application seeking an order for contempt against them, which application is yet to be decided by this Court. As a result of that application, the first and second defendants filed an application which seeks to stay the enforcement of the Court’s orders and seeks a referral to the customary Courts (including the relevant Council of Chiefs).

3. The ground of the application for a stay and referral to the customary Courts is a claim by the first and the second defendants to customary ownership of certain portions of Fiu land.

4. Mr. Nori for the claimant submits that if the first and second defendants wish to pursue that claim, the proper procedure is for them to initiate a dispute and have it heard and determined by the Council of Chiefs. That of course is precisely what the first and second defendant are now seeking to do. Mr. Nori further says that once the dispute is referred to the chiefs then at that point the defendants can apply for a stay of any enforcement of the Court’s order of eviction made in September 2006. In the meantime, argues Mr. Nori, in the absence of any attempt to appeal the decision of 15 September 2006, or application to set it aside, the claimant has a right to enforce it and pursue eviction.

5. The issue in simple terms is this. Ought now the defendants to be evicted prior to a determination by a local Council of Chiefs as to what rights of occupancy or ownership if any they have in respect of portions of Fiu land? In other words, given the background of this case, should this Court exercise its discretion in the interests of justice to stay enforcement of the eviction order until the matters in dispute are resolved by the local Courts?

6. Relevant to this is that in the original statement of claim filed in July 2005 it was acknowledged that the first and second defendants through a female line were related to the plaintiff. Paragraph 3 of the statement of claim states:

"3 The Defendants are related to the Plaintiffs through a female called Angisirobo. All the Defendants are descendants of the said Angisiribo. This genealogy was shown in the native Court record. This clearly shows all the Defendants are descendants of the said Angisiribo. Attached hereto is a family tree showing all the descendants of the Angisiribo including the defendants."

7. The statement of claim goes on to implicitly acknowledge that the defendants have rights associated with the land. Para. 4 states:

"4. All the said Defendants are therefore bound by the same decision with Iniakalo and his descendants and cannot assert any superior rights over the land against the Plaintiffs."

8. It is clear, too, that the statement of claim acknowledges that the defendants have a conditional right of occupancy of the land. Para. 8 of the statement of claim states:

"8. Originally, the Plaintiff did not have any objections against their settlement on the land they are related to the Plaintiff through the female Angisiribo .. on the condition that they acknowledge the Plaintiff as head over the land and sought permission from him before doing anything on the land ....".

9. It is apparent from the statement of claim that what initiated the Court action against the defendants was their challenge to the superior ownership rights to the land asserted by the claimant. An example of this is para. 9 of the Statement of Claim, which states:

"9. In or around 2001 however, the Defendants eventually started to assert or claim superior ownership rights over the Fiu land and are no longer bothering to seek permission form [sic] the Plaintiff before dealing with land. The Defendants no longer have any respect for the Plaintiff as the head over the land."

10. It is clear from a judgment of the Malaita Native Court in Case No. 36 of 1969 that it was determined that the claimant’s father Damae was ‘the head of the whole land’, the Court stating, page 51:

"Damae will be the head of the whole land and all of you under him. If you want anything to [sic] with the land, you must ask him first before you do so. Don’t do it without him".

11. If, then, the assertions in the statement of claim as to the defendants felling trees, building access roads and destroying garden plants without permission are true, then this would appear to be in breach of their obligations as occupiers. Whether it gives grounds in law for an eviction order is another question, and one which was not argued before the Court on 15 September 2006 (for reasons which I will shortly refer to).

12. In addition to their argument that the claimant has acknowledged their rights (although it would appear conditionally), the defendants assert that in an extract from Case No. 36 of 1969 the claimant’s father Damae admits that the first and second defendants were given a portion of the land. I need not set out the relevant passage, but I am satisfied that arguably it supports the defendants contention of ownership of a portion of the land.

13. The defendants submit that in the circumstances, there were no valid grounds for the Court to find that they occupied the land unlawfully and to order that they be evicted.

14. It is apparent that the defendants claim that they had rights in relation to the land was not argued before the Court on 15 September 2006, as no one appeared for the defendants at the hearing. Although a statement of defence had been filed on behalf of the defendants along these lines, it is obvious from the Court’s decision that the issues to which I have referred were not considered (presumably because they were not specifically raised by the claimant’s lawyers). It would seem that because of the non appearance for the defendants the matter was determined in effect on a default basis, as opposed to the actual issues being considered.

15. No explanation for the non appearance by or on behalf of the defendants has been given. Further, as earlier stated, no attempt was made to appeal the decision of 15 September 2006 and no application to set it aside was made. Further, there has been unexplained delay in the filing of the present application.

16. Notwithstanding these glaring deficiencies, the issue remains whether in the interests of justice any enforcement of the eviction order ought to be stayed, so that the dispute as to the nature of the rights of the defendants to portions of Fiu lands and whether their alleged mis-deeds provide grounds for eviction can be argued before the customary courts. All parties agree that such is the appropriate way to resolve matters, but as I have said the point in contention is whether eviction should take place in the meantime.

17. I note that an application similar to the present one was brought by the defendants in August 2008, and dismissed by this Court on 11 February 2009 for non appearance by or on behalf of the defendants. No reasons for the non appearance have been provided.

18. In all the circumstances, I favour maintaining the actual status quo as it presently exists, with the defendants being still in occupation. To enforce eviction against them in light of the substantive arguments which they have raised as to their rights of occupancy would in my view be unjust.

19. Accordingly, I order that any enforcement of the Court orders perfected on 20 September 2006 be stayed until further order of the Court. I note that all parties believe this dispute should appropriately be referred to the local Council of Chiefs, and the stay is to enable this to occur. I expect this to be done as quickly as possible, and if any party is tardy in this respect it will be open for the other party to apply further to this Court for a review of the order for a stay.

20. Leave to apply further is granted.

21. The claimant’s application for contempt of Court is dismissed for the reasons contained in this decision, with each party to bear its own costs in respect of both applications.

BY THE COURT