Kilua v Sino Capital (SI) Ltd [2011] SBHC 129; HCSI-CC 105 of 2009 (18 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 105 of 2009

BETWEEN:

JOB KILUA
(Represent Paradovu Clan)
Claimant

AND:

SINO CAPITAL (SI) LTD
First Defendant

AND:

RAY THOGO, PASTOR VAGA AND HARLEN DONALD
(Trustees of Ghaghabu Customary Land)
Second Defendant

AND:

BENTLY BALUA, ROBERT MANELONGA AND CIRIN BALUA
(Trustees of Masa Customary Land)
Third Defendant

Date of Hearing: 30 September 2011
Date of Ruling: 18 October 2011

D.B. Liolimani for Applicants/Defendants
C. Fakari for Claimant/Respondents

RULING

1. This is an application for Summary Judgment pursuant to rule 9.58 of the Solomon Islands Courts (Civil Procedure) Rules 2007 by the Applicants/Defendants filed on 26 August 2011.
   
2. In his further amended claim filed on 2 June 2011. The Claimant/Respondent seek the following orders:
   
   • (i) Declaration that the Claimant has equitable interest in the royalties from logging operations on Masa and Ghaghabu Lands under the First Defendants felling licence No. A10714;
     
   • (ii) Declaration that the First and Second Defendants hold in constructive trust the royalties for logging operations on Masa and Ghaghabu Customary Lands under the First Defendant's felling License for the Claimant;
     
   • (iii) Any other orders the court may deem fit
     
   • (iv) Costs
     
3. The Applicants seek the following orders and or relief:
   
   1. That the Claimant's claim be summarily dismissed on the basis that there is no real prospect of the said claim or part thereof succeeding.
      
   2. Declaration that the Claimant cannot claim primary ownership rights over Masa Customary land to the exclusion of rights of the Tideo Tabu Clan merely on the basis of his past role as an invited spokesman in the Masa Land Case.
      
   3. That the Claimant be restrained from further interfering with the rights of the Second and Third Applicants/Defendants to enjoy or benefit from any or all developments undertaken respectively on Masa and Ghaghabu Customary Lands.
      
   4. Such further orders as the court may see fit.
      
   5. Costs.
      

Brief background of Masa Land

4. The ownership of Masa Land was heard before the Guadalcanal Local Court at Aola substation on 13 August 1985. The parties in that case were Job Kilua from the Paradovu Clan who was the Plaintiff and Thughaoli who was the Defendant. The plaintiff's evidence is that Tideo Tabu Clan owned the Land. After hearing evidence from Plaintiff and the Defendant and their witnesses the court delivered its written judgment. The court decided that the rightful owner of the land was Job Kilua.
   
5. Thughaoli appealed that decision to the Guadalcanal Customary Land Appeal Court. The parties in that appeal were Thughaoli who was the Appellant and Job Kilua the Respondent. After hearing evidence, the court delivered its written judgment. The court decided that the rightful owner of Masa land was Tideo Tabu Clan. The court also decided that Paradovu Clan and Tideo Tabu clan are one clan. The reason for that was because Tideo Tabu and Paradovu were uncles. The court also decided that the Respondent was merely a representative of Paradovu/Tideo Tabu Tribe in the case and not himself as the owner of Masa Land. The Appeal to the High Court against this decision was later withdrawn. So the decisions of the Local Court and Customary Land Appeal Court remained the same to the present time.
   
6. The First Defendant applied to carry out logging on wards 5, 6, 8, 11, 15, and 17 on Guadalcanal. During the timber rights hearing, the persons who were able and entitled to grant timber rights over Masa Land were Bently Balua, Robert Manelonga and Cirin Balua. And the persons who were able and entitled to give timber rights over Ghaghabu Customary Land were Ray Thogo, Pastor Vagha and Harlen Donald.
   
7. The First Defendant is the current holder of felling licence No. A10714 to carry out logging on Customary Lands within the wards referred to in paragraph 6 above. The First Defendants felling licence is for 5 years from 6 September 2007 to 6 September 2012. Masa and Ghaghabu Customary Lands are covered by that licence.
   
8. The Claimant's complaint is that the people who were identified as the persons able and entitled to grant timber rights over Masa and Ghaghabu Lands were the wrong persons. However, he did not lodge any appeal against them during the relevant period. He said he was not aware of the timber rights hearing. He thus seeks declaration orders in his claim. He says that Ghaghabu land is situated within the boundaries of Masa Land.
   
9. I have considered the sworn statements filed by the Defendants in support of their application before the court. I have likewise considered the sworn statement of the Claimant. They raise issues which could be examined more fully during and after the trial. In the circumstances, the court refuses to grant the orders sought in the Defendants' application set out in paragraph three above. The Defendants' to pay the Claimant's costs of that application.
   

Order: 1. Refuse to dismiss the Claimants claim summary.

2. Refuse to grant the orders sought by the Defendants.

3. The Applicants to pay the Claimants costs of the present application.

Order accordingly.

THE COURT