Bato v Boso [2013] SBHC 124; HCSI-CC 619 of 2005 (13 September 2013)

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

CIVIL CASE NO. 619 OF 2005.

BEFORE:

DONALD BATO, VICTOR PAULSEN, JAMES
HARLEY and BARNEY PAULSEN
Claimants

AND:

RICHARD BOSO and HOPEFUL PIOSASA
First Defendants

AND:

JETTY NOVAH and HADISON NIVAH
Second Defendants

AND:

BULACAN INTEGRATED WOOD INDUSTRY
(SI) LIMITED
Third Defendant

AND:

NATAHN TUSA, SASA, ROBIN HEIGHT
ZIVOKA, JOHN LAMU, COLLIN LIVA and
MICK LIVA,
(Representing blocks 5 and 6 of Kakarumu
And Madekoloko land block owners).
Applicants

Date of Hearing: 5/8/2013 and 5/9/2013.
Date of Ruling: 13th September, 2013.

Mr D. Marahare for the Claimant
Mr P. Tegavota for Defendants 1-3
Mr M. Tagini for the Applicants.

RULING ON APPLICATION FOR SUBSTITUTION /JOINDER.

Faukona J: There are two synonyms of applications of which this Court ought to determine. Both were filed by the Applicants. The first was filed and was renewed by the former Solicitor on 13th August, 2013, now representing the Defendants 1-3, and the other was filed by the current Solicitor probably on 5th March, 2013.

2. The issue of representation in custom was litigated and though remain hanging, it was considered most equitable to resolve the issue by an order for direction. That paved a way for the orders granted by Justice Mwanesalua on 29th November, 2012. That the Claimants and the Applicants to go back to their tribe (Lamupeza) to sort out whom to represent them in custom and to continue represent them in this action.

3. Following that, were controversial meetings, minutes and sworn statements disclosing tribal elders mandate, authority etc. At the end of the day, there was no consensus conclusion, and the issue of representation in custom was not agreed upon, hence still unresolved; apparently, all was in limbo.

Preliminary issues:

4. On the outset, it is a non-issue that both the Claimants and the Applicants are of the same Lamupeza tribe. Secondly, it is a non-issue that the applications concern with blocks 5 and 6 only and no other blocks or customary land apart from that.

5. There are two preliminary issues advance by Mr Marahare. The first one is that the initial application for substitution of representation is misconceived and should be refused with costs. I am dealing with both applications for substitution and joinder now. At the end of the day, it is most appropriate that one should be prevailed over the other, but both cannot remain with equal standing. Therefore, I cannot accept an early refusal and exit of the application with costs; I think it is premature to do so.

6. The second issue is the failure by the Applicants to honour the orders for direction given on 5th August, 2013, by failing to file and serve their submissions by 19th August, 2013. Orders for directions are appropriate by virtue of Rule 1.7(g) to move the case forward. Notwithstanding the fact that there is failure, per se, Rule 1.16 echoes a resolving course that any noncompliance with the rules does not make an order in a proceeding, a nullity. In this case, it cannot render the pending applications a nullity because it eventually, though late, they were filed, and parties were happy when they appear on 5th September, 2013, with the collective consent that this Court to consider their written submissions, which I now do so.

7. It is worth reemphasizing again that both the Claimants and the Applicants are from the same Lamupeza tribe; no fussy and stint about it. On 24th August, 2011, I decided a case of ownership, trespass and damages and conversion of logs in favour of the Claimants who represented the Lamupeza tribe. It would now appear clear that Lamupeza tribe own blocks 5 and 6, Kakarumu and Mandeloko. That decision was reached after evidence was fully weighed and scrutinized including the chiefs determination. That decision was never appealed. Now the Applicants who are members of the Lamupeza tribe claim ownership of the two blocks, therefore sought to be joinder as party.

8. In my decision of which quotes are paraphrased in paragraphs 6 of Mr Tegavota's submissions. Those quotes reflect undisputed customary land tenure adopted in Central parara and perhaps within Vonavona lagoon. In general term, all that land comprised of Central parara had been subdivided and allocated to family members of the tribe, and each is responsible for his/her block. This land tenure system operates in a way that once a block of land is allocated to an individual that individual assume full authority and power over their blocks leaving the tribe (if Lamupeza for that matter) almost without jurisdiction, or if there is any, redundant.

9. During the course of the hearing and in the written submissions, there is no opposition raised against the land tenure system, and there is no evidence to suggest that blocks 5 and 6 are not own by the Applicants but own by others, and those others are not named as providing the prerequisite option. The Claimants main arguable point is that they are mandated to represent the tribe. The issue of representation in custom has not been resolved amicably. Whilst awaiting further necessary step be taken to resolve it, the Applicants thought it is relevant to file those applications to speed up the process and to enable them participate in the assessment of damages.

10. In considering whether substitution or joinder is applicable in this case, I noted Rules 3.4 to 3.6, which allow for adding of parties. Rule 3.6 specifically states, "A person affected by a proceeding may apply to the Court for an order that the person be made a party to the proceeding". Further Mr Marahare refers to the case of Solomon Islands National Provident Fund Board V Solomon Islands Electrical Authority,[1] where His Lordship Kabui J at page 3 approved the views expressed by Delvin J in the case of Amon V Raphael Tuck and Sons Ltd,[2] stated,

"The only reason which makes it necessary to make a person party to an action is that he should be bound by the result of the action, and the question to be settled, therefore must be a question in the action which cannot effectively and completely settle unless he is a party".

11. The question to ask is, has the Applicants are persons affected by the proceeding? Their claim of ownership of the two blocks arose from the customary land tenure system adopted in Central parara. And that claim has never been dislodged by any shred of evidence, nor was an alternative ownership proposed.

12. Interestingly the second part of Devlin J's decision puts the issue on path. From the evidence it is clear without reservation, that the Applicants own the two blocks. Therefore to do away with those from being participated in the question of assessment of damages cannot be effectively and completely settled. They have to be involved and participate in the assessment of damages.

13. I therefore perceived that application for substitution is not relevant at all, and hereby grant order for Applicants be joinder in this proceeding.

Orders:

1. Application for Substitution dismissed.

2. Application for joinder of Applicants allowed and therefore joined as second Claimants.

3. Cost in the cause.

The Court.

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^[1] HC Civil Case No. 55 of 2000.
^[2] [1956] 1 All ER, 273