Thabatia v Capital Construction [2013] SBHC 108; HCSI-CC 332 of 2011 (9 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 332 of 2011.

BETWEEN:

SILAS THABATIA, JOHN LEUA AND DANIEL
SIKUA
(Representing themselves and members of their
Tidiotabu sub-tribe of the main Ghaobata tribe).
Claimants

AND:

CAPITAL CONSTRUCTION
Defendant.

Date of Hearing: 26th July, 2013.
Date of Ruling: 9th August, 2013.

Mr. A. Hou for the Claimants.
Mr. A. Rose for the Defendant.

RULING ON APPLICATION TO STRIKE OUT

Faukona J: The Claimants had filed an amended claim on 21st June, 2012 and sought orders for damages to be assessed and interest on the assessed sum, for trespassing onto Tenavivilu customary land on East Guadalcanal.

2. The Defendant on 14th August, 2012 filed this application seeking an order to strike out the proceedings under rule 9.75. The reason is four fold:

1. The Claimants have no locus standi in custom to commence proceedings on behalf of Tidiotabu sub-tribe.

2. The Claim discloses no cause of action.

3. The Claim related to an action that is frivolous and vexatious and

4. An abuse of Court process.

3. From the statement of case, the Claimants are being members of Tidiotabu sub-tribe of the main Ghaobata tribe of Goru village, East Guadalcanal. They claim they own Tenavivilu customary land located between Bokokimbo river in the east and Berande river in the west.

4. Their ownership right as they claim has never been disputed by any person(s) or tribe s) or sub-tribe. They are the only sub-tribe claim or asserting customary ownership rights to the land. This was further affirmed by the fact that Silas Thabatia and Andrew Togharopo (deceased) had signed an agreement to acquire timber rights with Earthmovers Solomon Limited in respect of the land.

5. Sometimes in August 2010, the Defendant by an arrangement with the Ministry of Infrastructure and Development carried out maintenance and repair works on an old logging road formerly used by Earthmovers Solomons Limited during its logging operations and runs from Numbu village to Tenakonga Community High School further east.

6. During the course of carrying out the maintenance work, on Monday 13th December, 2010, entered into the Claimants' land and caused damages to the land and environment. Such damages amount to removal of the topsoil through grading and destruction of natural vegetation. The drinking water from Goseni stream was blocked up stream to provide pass way for the machines causing it to stop running and became polluted by oil leakage, muddy, milky brown and unsafe for use. Despite verbal warnings from the Claimants, maintenance work continued. The Claimants say the work was done without seeking prior permission and on agreement to grant consent from them.

7. The Defendant denies that Tidiotabu is a sub-tribe of Ghaobata tribe, and they are not owners of Tenavivilu customary land. It also denies causing any environmental damages. It says that it was awarded a contract to carry out maintenance work on the Tenakonga feeder road. The contract was executed a 3rd August, 2010. Before work commenced it carry out awareness program and the Chiefs agreed and support maintenance of the road. The Defendant agrees that it did crossed the Goseni stream with the consent of the chiefs and true landowners of Tenavivilu customary land.

Locus Standi in custom to commence proceedings on behalf of tribe

8. Where the issue of trespass to customary land arise in litigation, the significant notion that comes to mind is the right of ownership to that land. As it has been recognised as a settled law trespass to land gives rise to damages. Without proof of ownership, there cannot be proof of damages.

9. For the Claimants to have rights in custom to come to Court and be heard, they must establish their customary right of ownership to Tenavivilu customary land. In the case of J. Daiwo V Michael Lano and other[1], Justice Chetwynd said,

"It is settled law that trespass to land give rise to damages. Without proof of damage..... a crucial element in any claim for trespass to land is proof of ownership For the Claimants in any case to succeed, and in this case specifically to succeed, ownership of the land must be proved to the requisite standard, namely on the balance of probabilities"

10. In this case, the Claimants are relying on a timber rights determination where one of the Claimants and another granted timber rights to Earthmovers Solomons Limited to log the land previously. The question is, is granting of timber rights and signing of standard logging agreement sufficient proof to establish ones right of ownership to customary land? Reference is hereby made to the case of Gandly Simbe V East Choiseul Area Council[2] where the Court said,

"It remains true to say that, in making a determination for the limited purposes of S.5C (3), it is no part of the function of an area council to decide questions of ownership of customary land in a way that is either binding or final in effect. It is one of the features of the statutory procedure under Part 11A that an area council is a tribunal, and not a Court of record, or indeed a Court of any kind whether of customary or common law. It has long been recognized that its determination gives rise to no guarantee that the contracting customary owners are the true owner... If a binding determination is desired it must be obtained from a local Court under S.8 of the Local Courts Act as amended by the Local Courts (Amendment) Act 1985 inserting SS 8C, 8D,and 8F, or on appeal instituted under S.8E(1) of the Forest Resources Timber Utilisation Act by a person aggrieved by a determination of the area council under S.5C (3) (b) of that Act, to a customary land appeal Court having jurisdiction for the area in which the customary land is situated".

11. Again Chetwynd J further elaborate in Daiwo's case by referring to Simbe's Case and said;

"As is clear from Gandly Simbe and other case heard in the Court of Appeal since, the determination by the Provincial Executive is not conclusive proof of evidence of ownership but it is better proof than nothing at all. Until such time as the Claimants have some proof of their ownership in custom of Blocks 19 and 20, whether it called naomole or something else, they cannot succeed against the Third Defendant .... As the Claimants have not been able to show on the balance of probabilities they are the owners of the land, their claim based on trespass must fail".

12. It transpires from the authorities that Claimants cannot rely on timber rights determination to proof ownership of Tenavivilu customary land, as a ground to institute a claim for trespass, which gives rise to damages. Until then the Claimants are yet to establish their rights of ownership in the customary land forum. If that has yet to be done they are merely asserting such rights. The issue has finally been established. Therefore, the Claimants do not have the locus standi to come to Court.

Disclosing reasonable cause of action:

13. By Rule 9.75 the Court has the power to strike out the proceedings generally or in relation to that claim. A reasonable cause of action means basically a cause of action with some chances of success or where a tenable case has been disclosed for relief sought[3]. If it is clear that the statement of claim is insufficient, even if proved, to entitle the plaintiff to what he asks[4]. If in the statement of case there discloses some cause of action, or cause some question fit to decide at trial, though weak and not likely to succeed is no good ground for striking out. If there should be certainty that the cause of action is to fail, the statement of claim should be struck out.[5]

14. In addition to the first issue, the Claimants maintain that they own the land, supported by the fact that no one has disputed their sub-tribe's right. Further to that, Paramount Chief Pegoa and Chief Gheti publicly declared that the land belongs to Silas Thabatia (one of Claimant) and another.

15. Significant to this case is the evidence of the contract executed by the Defendant with the Ministry of Infrastructure and Development to carry out repair and maintenance work or the feeder road. As it may, it was a Government funded project. As such, in normal circumstances was an input from the Community. The Ministry cannot facilitate and funded such project, if it was not consented to by the people and landowners who would benefit from such. It would be assumed that consent had been expressed before work and contract was executed. Like in most parts of Guadalcanal Island, road infrastructure is needed. It assists people access to economic centres as Honiara by road. In this case, access to school, an important asset, which will benefit the whole entire community in the area.

16. What is most important is that the Defendant had entered the land to do construction and maintenance work after execution of the contract. In other words by executing the contract it was permitted to enter the land and did what it assigned to do. Hence, there can be no trespass established in its full interpretation. In the same token, there can be no damages done because damages arise from trespass.

17. I am satisfied on the balance of probability, that the statement of case does not disclose any reasonable cause of action. And no doubt has negatively affected the proceedings generally. Thus reflected truly that there is no chance of success, therefore only fit to be struck out.

Frivolous and vexatious or an abuse of process

18. An order for striking out under this ground can only be made in exceptional cases. The discretionary power should be exercised if the claim is devoid of all merit or cannot possibly succeed. The test being that the alleged cause of action is one, which on the face of it is clearly one, which no reasonable person could properly treat as bona fide and content that he had a grievance, which he was entitled to bring before the Court[6].

19. From material evidence, there is no doubt that the Claimants asserted claim over Tenavivilu land has not been established. Even to the extent that there is no such decision from the customary land forums. Therefore, trespass, which automatically prompted damages, was not proved. Consequentially the claim is devoid of all merit and cannot possibly succeed, and only proper to regard it as frivolous and vexations and an abuse of process and should be struck on this ground as well.

Order:

1. Claimants' claim hereby strikes out.

2. Cost of this proceeding is paid to the Defendant by the Claimants.

The Court.

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^[1] Civil Case No. 367 of 2007.
^[2] [1999] SBCA 9; CA. CAC 8 of 1997 (9 February 1999).
^[3] Gatu V SIEA, A-G and Gold Ridge; CC No. 59 of 1995; Mauana V Solomon taiyo Ltd; CC No. 109 of 1994.
^[4] Chow V Attorney-General; CC No. 127 of 2000.
^[5] More V Lawson [1915] 31 TLR 418.
^[6] Norman V Mathews (1916) 85 LT KB 857.