Takofilia v Agira [2013] SBHC 130; HCSI-CC 124 of 2013 (13 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

MARK TAKOFILIA
(representing himself & members of Afu'o customary
landowning group of Baegu, Malaita Province)
Claimant

AND:

AGIRA & PETER GERE
(representing themselves, their families and inhabitants
of Waroe settlement, Baegu, Malaita Province)
1st Defendants

AND:

CORNELIUS KETEAU, FRED BETERE and NIUSI KENEI
(representing themselves, their families and inhabitants
of Antioch settlement, Baegu, Malaita Province)
2nd Defendants

AND:

KETEAU NIUKWAI and SARE SAMY
(representing themselves, their families and inhabitants
of Kafobulu settlement, Baegu, Malaita Province)
3rd Defendant

AND:

SUALU, TIMO and WAITINGI
(representing themselves, their families and inhabitants
of Zion settlement, Baegu, Malaita Province)
4th Defendant

AND:

GANIOMEA and SESENI GANIOMEA
(representing themselves, their families and inhabitants
of Ganiomea settlement, Baegu, Malaita Province)
5th Defendant

AND:

MICHAEL AU
Applicant

M. Tagini for the Applicant and all the defendants.
L. Ramo for the claimant/respondent.

Date of hearing: 28 August 2013
Date of Judgment: 13 September 2013

RULING

Apaniai, PJ:

Introduction.

1. On 24 April 2013, the claimant, Mark Takofilia ("respondent"), filed a claim against five people representing five families whom he claims are trespassing on his tribal land known as Afu'o customary land ("Afu'o land").
   
2. These five people are Agira and Peter Gere ("1st Defendants") whose families have settled at Waroe settlement; Cornelius Keteau, Fred Betere and Niusi Kenei ("2nd Defendants") whose families have settled at Antioch settlement; Keteau Niukwai and Sare Samy ("3rd Defendants") whose families have settled at Kafobulu settlement; Sualu, Timo and Waitingi ("4th Defendants") whose families have settled at Zion settlement; and, Ganiomea and Seseni Ganiomea ("5th Defendants") whose families have settled at Ganiomea settlement.
   
3. The respondent claims that the 5 settlements, namely, Waroe settlement, Antioch settlement, Kafobulu settlement, Zion settlement and Ganiomea settlement, are inside the boundaries of the Afu'o land and he wants the five families either removed or, if not, then orders be made restraining them from intimidating him or interfering with his use of the Afu'o land. He also seeks a further order restraining the defendants from carrying out any development inside Afu'o land without his consent.
   
4. The respondent has filed the claim in his capacity as a representative of himself and the members of the Afu'o tribe, which owns the Afu'o land.
   

The application.

5. The applicant, Michael Au ("applicant") now comes to court seeking an order that he be joined as 6th defendant in these proceedings. He cited Rules 3.5 and 3.6 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") as authority for the application.
   
6. Rule 3.5 empowers the court to make an order for a person to become a party if the person's presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceedings. The Rule also provides that a person who does not consent to be added as a claimant shall be added as a defendant.
   
7. Rule 3.6 authorises a person affected by a proceeding to apply to the court for an order that he be made a party to the proceedings.
   
8. Where Rule 3.5 is raised, the question which naturally arises is whether or not the presence of the applicant as a party is necessary to enable the court make a fair and effective decision in the proceedings. As for Rule 3.6, the question is whether the applicant is a person affected by the proceedings.
   
9. These Rules are introduced with the objective of enabling the courts deal with cases justly with minimum delay and expense by addressing the real issues in the proceedings. It is with that objective in mind that the framers of the Rules have given the courts wide discretion when deciding whether or not to allow persons to join as parties in proceedings[1]. Needless to say, the more parties there are to a case, the more expensive and lengthy the case will be. It is therefore in the interest of justice that cases should have as few parties as possible.
   
10. So, the question in this application is whether the presence of the applicant as a party is necessary to enable the court make a fair and effective decision in the proceedings or, to put it another way, will the court be unable to fairly and effectively decide the issues in this case in the absence of the applicant?
    

The issues.

11. It will be seen that one of the main issues in this case is whether the five settlements mentioned above lie inside the Afu'o land. The applicant says they are not while the respondent says they are. Sadly, the applicant and the respondent are connected to the same tribe, which owns the land. So, if the applicant is joined as a party, will his presence assist the court to fairly and effectively determine the boundary issue?
    
12. Unfortunately, I cannot see how the applicant's presence as a party will assist the court fairly and effectively decide that boundary issue. It is clear from the 1964 decision that the boundary of Afu'o land has not been decided in that case. There is nothing in the judgment or decree of the local court that clearly demarcated the boundary of Afu'o land. As such, the boundary of Afu'o land is still an issue but it is an issue, which this court has no jurisdiction to decide. It is an issue for the chiefs and the local court to determine. I do not think the joinder of the applicant in these proceedings in this court will be of any assistance in determining this issue.
    
13. Another main issue in this case, and one raised by this application, is whether the respondent is entitled, or has the mandate of the Afu'o tribe, to represent the tribe in these proceedings or to bring this action at all. The applicant says the respondent is not entitled to represent the tribe or to take up this case at all because he is a matrilineal member of the Afu'o tribe. The respondent, on the other hand, says that he is a patrilineal member of the tribe and that he is entitled, and has the mandate, to represent tribe because he is the grandson of Iluga who was the plaintiff in the 1964 case and one of the two persons adjudged by that case as the "head of the Afu'o customary land". This further raises the issue whether the respondent is a matrilineal or patrilineal member of the Afu'o tribe. The 1964 case has not settled these issues, which means that these are issues, which should be brought before the chiefs and the local court. I cannot therefore see how the joinder of the applicant in these proceedings before this court will be of any benefit in solving those issues.
    
14. Accordingly, this application must be dismissed. However, dismissing the application in itself will not solve the complicated issues raised in these proceedings. I have therefore decided, in the interest of justice, to make the following orders and directions in relation to these proceedings:-
    

[1] That this application is dismissed.

[2] That the applicant shall pay costs of the respondent in this application to be taxed if not agreed.

[3] That the issue of the boundary of Afu'o land be brought before the appropriate forum for determination.

[4] That the issue whether the respondent is a patrilineal or matrilineal member of the Afu'o tribe be also brought before the appropriate forum for determination.

[5] That, pending the determination of the issues referred to in paragraphs [3] and [4], these proceedings shall be adjourned generally with liberty to apply on 7 days' notice.

THE COURT

_________________________
James Apaniai
Puisne Judge

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^[1] See Rules 1.3 and 1.4, Solomon Island Courts (Civil Procedure) Rules 2007.