Misitana v Asanao Forest Management Ltd [2013] SBHC 140; HCSI-CC 421 of 2011 (4 October 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

REDLEY MISITANA

First Claimant

(representing Gwaunamanu tribe)

AND:

FRANCIS JORDAN LAFUIA & SIMON

Second Claimants

RAMOSAEA

(representing Fulaiano tribe)

AND:

ASANAO FOREST MANAGEMENT LTD

First Defendant

AND:

DAIDO (SI) LTD

Second Defendant

AND:

ANDREW LOBOI

Third Defendant

AND:

JOSEPH FANETA SIRA

Fourth Defendant

AND:

SIMON RAMOIFAI

Fifth Defendant

Date of Hearing: 11 September 2013
Date of Judgment: 4 October 2013

Mr. D. Marahare for the First to Fifth Defendants/Applicants
Mr. D. Tigulu for the First and Second Claimants/Respondents

RULING

Apaniai, PJ:

1. This is an application by the First to Fifth Defendants ("Applicants") for a stay of these proceedings pending the hearing by the Malaita local court of a dispute referred to it by the Third, Fourth and Fifth Defendants regarding the ownership of the Gwaunamanu customary land and Fulaiano customary land in East Fataleka, Malaita Province.
   
2. The dispute about the ownership of the Gwaunamanu customary land and Fulaiano customary land came before the East Fataleka House of Chiefs ("Chiefs") on the 10th and 11th October 2012. After hearing evidence, the chiefs awarded the ownerships of Gwaunamanu customary land and Fulaiano customary land to Redley Misitana and Francis Jordan Lafuia ("Respondents") respectively.
   
3. The Applicants, not being satisfied with the Chiefs' decision, referred the dispute further to the Malaita local court on or about 27th May 2013. On the basis of this referral, the Applicants now come to court seeking a stay pending the local court decision.
   
4. The Respondents have conceded that there is a valid referral before the Malaita local court, however, they argued that this court has no jurisdiction to grant a stay because there is nothing in the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") providing for stay of proceedings. In addition, they also say the court has not inherent jurisdiction to grant stay of proceedings.
   
5. I agree that there is nothing in the Rules that provide for stay of "proceedings" although there are provisions for stay of "execution of judgments and orders"[1]. Staying proceedings and staying execution of judgments or orders are not necessarily the same thing although in various judgments of this court the two terms have been used interchangeably. In Smalley v Robey & Co Ltd[2], Holroyd Pearce, LJ, described the word "proceeding" by saying:
   

"... Proceedings are intended by these rules to be the day-to-day steps in the action, not merely the cause of action on which they rest. The wording of the RSC Ord. 70 r. 2 confirms me in the view that the proceedings means the day-to-day steps in the action, since that provides that the proceedings can cure themselves of irregularity by delay, in the sense that the other party cannot rely on an irregularity unless making complaint within reasonable time".

6. Halsbury Laws of England defines "proceedings" as follows:
   

"... The term proceedings, which is sometimes used in the singular and sometimes in the plural, both in statutes and in the Rules of the Supreme Court, is frequently used to describe an action or other cause or matter or to denote a step in an action, cause or matter, and obviously has the latter meaning in such phrases as proceeding in any cause or matter. On the other hand, when used alone, whether in the singular or in the plural, it bears the meaning of action and should be constructed with or as including an action..."

7. Having said that, I cannot agree that this court has no inherent jurisdiction to order stay of "proceedings" in appropriate cases. The court's inherent power to do justice in proceedings before it is implicit in Rule 1.11 (b) of the Rules where the court is given the power to give whatever directions are necessary to ensure the matter is determined justly. In my view, doing justice in a case includes staying "proceedings" where the circumstances justify.
   
8. In the present case, the respondents are claiming damages for trespass in Gwaunamanu customary land and Fulaiano customary land. In claims for trespass, ownership of the land or property trespassed upon is an inevitable issue in the case. The Chiefs have made a decision awarding the ownership of the disputed customary lands to the respondents on 10th and 11th October 2012. The applicants, not being satisfied with the Chiefs' decision, have referred the dispute to the Malaita local court. The dispute is still pending before the Malaita local court.
   
9. That means the issue of the ownership of the Gwaunamanu customary land and Fulaiano customary land has not yet been finally settled. If no order is made to stay the proceedings, the respondents would be entitled to proceed with their claim for damages for trespass with the possibility that they might obtain judgment against the applicants on the basis of the Chiefs' decision which is now on appeal to the Malaita local court.
   
10. In my view, justice demands that the dispute regarding the ownership of the Gwaunamanu customary land and Fulaiano customary land be finally settled before these proceedings can continue.
    
11. It is generally accepted that where a party exercises his right of appeal against a decision of a court or tribunal, the court ought to order a stay of proceedings[3]. Accordingly, this application must be granted.
    

Orders.

12. The orders of the court are:-
    

[a] The application is granted.

[b] These proceedings are stayed pending final decision of the appropriate forums in regards to the ownership of the Gwaunamanu customary land and Fulaiano customary land.

[c] Costs in the cause.

[d] Liberty to apply on 7 days' notice.

THE COURT

_________________________
James Apaniai
Puisne Judge

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^[1] Rule 17.77, SI Courts (Civil Procedure) Rules 2007.
^[2] [1962] 1 All ER 133 at 135.
^[3] Wilson v Church (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch. D. 454.