SMM Solomon Ltd v Attorney General [2013] SBHC 152; HCSI-CC 258 of 2011 (24 October 2013)

HIGH COURT OF SOLOMON ISLANDS
(Brown J)

Civil Case No. 258 of 2011

SMM SOLOMON LIMITED AND ALFRED JOLO
(Representing the trustees and members of the Anika Thai Clan)

AND

WILLIE DENIMANA AND HUGO BUGORO
(representing the trustees and members of the Thavia clan)

AND

HENRY VASULA RAOGA
(representing the trustees and members of the Vihuvanagi tribe)
AND BEN SALUSU (representing the trustees and members of the Vihuvunagi tribe in respect of the Chogea and Beajong land areas within Takata)

AND

MAFA PAGU representing the trustees and members of the Thogokama tribe)

AND

PAUL FOTAMANA (representing the trustees and members of the Veronica Lona Clan)

–V-

THE ATTORNEY GENERAL (representing The Minerals Board AND THE ATTORNEY GENERAL (representing the Minister for Mines, Energy and Rural Electrification AND THE COMMISSIONER OF LANDS AND THE REGISTRAR OF TITLES AND PACIFIC INVESTMENT AND DEVELOPMENT LIMITED AND AXIOM KB LIMITED AND ROBERT MALO, FRANCIS SELO, LEONARD BAVA, REV. WILSON MAPURU AND ELLIOT CORTEZ AND THE ATTORNEY GENERAL AND BY ORIGINAL ACTION AND BUGOTU MINERALS LIMITED AND THE ATTORNEY GENERAL (representing the Director of Mines) AND THE ATTORNEY GENERAL

Date of Hearing: 24 October 2013
Date of Ruling: 24 October 2013

1st - 7th Claimant – Mr J Sullivan QC
Mr R Kingmele

1st – 4th & 8th Defendant – Mr S. Banuve
The Solicitor General

5th Defendant – No Appearance

6th Defendant – Mr R. Lilley QC
Mr J. Carter
Mr D. Keane
Mr M. Pitakaka

7th Defendant – Mr F. Waleilia
Mr D. Nimepo

For the Cross Claimants, Bugotu Minerals Ltd – Mr T. Matthews
Mr W. Togamae

Rules of the High Court – r.3.42 – Proof in custom of claimant trustees so named to act in a representative capacity – application of a party seeking court order to provide proof – before further steps.

Practice and Procedure – order for proof of capacity to act as trustee or representative of customary land – whether necessary before or during trial when late application – nature of evidence required going to the issue

Held:

(1) where there is some evidence of the right of customary trustees or representatives to act and the right is queried late in the contested proceeding, just before trial, it is a proper exercise of discretion under the Rules to direct that all the evidence going to the right should be considered in the course of the trial and not as a preliminary issue before trial.

(2) Both the claimants and the 7th defendants need prove their rights to act by evidence on trial since both claim through custom.

(3) Where the question of representation becomes an issue, the court has a discretion to dispense with strict compliance with the rule to ensure all the evidence is heard in the course of the trial.

Cases cited:

Alex v- Kova (2010) SBHC64
Pa'asi v- Heo'au (2008) SBHC59
Mindu v- Hiva (2007) SBHC 165
Hiva v- Mindu CA-CAC 13 of 2008

Ruling by Commissioner

I propose to deal with that application under r. 3.42. Now, Axiom, the sixth defendant, claims an interest as lessee in particular land described in a perpetual estate register for parcel 130.004.1. It has sought orders in terms of r. 3.42 of the High Court Rules requiring proof in custom of the rights of the claimant trustees so named to act in such a representative capacity.

Since the land description of the perpetual estate parcel may also encompass all or part of the respective claimants' clan or tribal lands, Axiom has an interest sufficient to support this application.

The rule says,

3.42, "Any person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing the community, line or group that the Court on the application of any party or on its own initiative may require that person to provide proof of their entitlement in custom to act as such a representative before any further step in the proceedings may take place."

Her Ladyship Izuako J in Pa'asi v Hero'au [2008] SBHC 59 said,

"In traditional societies or communities such as those in the Solomon Islands and elsewhere where customs as described above are recognised in the law, what then may entitle a person in custom to represent or speak for or on behalf of a community or tribe or line? There can be no dispute that the position held by the person within the community is critical to determining such entitlement. This position may be conferred by circumstances of birth, by achievement within the community or by blood ties, or indeed by all three."

That statement concerning determination of such entitlement is one such approach. I do not necessarily agree that the three determinants are conclusive. There needs to be clear evidence that the tribal clan acknowledge and support that right to represent contemporaneously with the matter or thing which has brought about the need for representation.

Such evidence may be direct or inferred from previous acts or statements, documents, inferences to be drawn from circumstances (but not conjecture) and judicial notice (applying the facts that are so notorious that they are not the subject of dispute amongst reasonable persons). It may be termed the "Everybody knows" rule.

The inferred evidence may also, while not in the sense contemporaneous (in that a right to represent was age old), be related to a failure to speak out when opportunity occurs where circumstance would suggest that objection should be taken at a particular juncture.

Rule 3.42 goes some way to addressing a particular problem where some clans or tribes, and Malaita comes to mind, treated such information or knowledge as secret or personal to themselves and only at the last would divulge the proper spokesperson. This is the problem which Mr Lilley QC addressed at the latter part of his submissions.

Mr Lilley QC, for Axiom, referred me to Goldsbrough J's comments on r.3.42 in the case of Alex v Kova [2010] SBHC 64. That case turns on its particular facts. In this case before me I am not in a position to find facts, since I haven't heard all the evidence. Goldsbrough J said, after he had recounted the exchange with counsel,

"In these circumstances the applicant cannot and has not shown that he represents his tribe. He has demonstrated that he may be qualified to speak for that part of his tribe which supports him and no more. That is not the same as required under rule 3.42. To that extent the case cannot proceed on that basis (of purported representation)."

For in this case all the evidence and argument is yet to come. Mr Lilley further says, the case before me falls squarely within Goldsbrough J's observations. I disagree for the reasons I've given. Only during the hearing did my former brother Judge realise the predicament. That said, however, it does go to illustrate the need to be satisfied purported representation is properly based in custom and not mere conjecture or assertion. That at least can be taken from Alex v Kova, and that warning is repeated in r.3.42, although with the proviso that proof is required before any further step in the proceedings may be taken.

Obviously, then, r.3.42 may be seen as a threshold question when raised before trial, and a reflection of the proof required, in any event, at trial.

Here, I take it from both counsels' concession, that I may waive strict compliance with that latter part of the rule so that the evidence of proof may fall to be determined in the trial. This is to enable the trial to proceed without increasing delay and duplicity of argument about rights to represent. Without the concession, surely the claimants would need to split their case to deal with the threshold question, a question only raised some five days before the case was due to commence. It was always an issue, on the pleadings, yet only now has it been raised as a threshold question, and only on Tuesday has the concession been made which will allow the question to revert to one for general consideration on trial.

Before the concession, Mr. Sullivan QC was at pains to point out various matters which confirmed or went to prove particular claimants' rights to claim representative status: (1) the third claimants - Willie Denimana and Hugo Bugoro - pursuant to order of the Chief Justice on the 1st of July 2013; and (2) fourth claimant, Henry Raoga, again pursuant to that order of the Chief Justice after hearing; (3) the true nature of the relationship between the fifth claimant, Ben Salusu, and one of the seventh defendants, Wilson Mapuru, which concerns the devolution of the authority of Joseph Bengere, and subsequently, the claim to represent by Wilson Mapuru that clan of Ben Salusu of the Chogea Beajong, while Wilson Mapuru is of another clan; (4) that Robert Malo's authority was through Joel Malo, who earlier had authority to represent Veronica Lona clan for a specific purpose, but that such authority did not now enable him to speak for Veronica Lona (the seventh claimant, Paul Fotamana) in relation to its land, for he also is of another tribe; and (5) so far as the Anika Thai's representative, Alfred Jolo is concerned, firstly, none of the seventh defendants claim membership of the Anika Thai (the second claimant) while yet denying Anika Thai's claim to primary ownership over a significant portion of the disputed land.

Mr Sullivan points to documents by one Manadika in support of Alfred Jolo. Mr Lilley claims the statements are oath helping, if I understand him correctly. All of the foregoing, one to five, is evidentiary material going to proof. Whether conclusive or not remains to be seen.

The representative capacity of the third and fourth claimants was not contested in the Chief Justice hearing. In that case, Axiom was, and it seems, not an active participant. There is no concession, in these circumstances, that proper representatives were named by the Chief Justice, although there was no appeal and it was not raised. The Court of Appeal, on two occasions, had the claimants before it without cavil of Axiom and, on both occasions, the Court opined that the argument as to the land question should be heard. Again the Court of Appeal cannot be said to have decided on the representation issue, for that wasn't argued. It remains a live question for the trial.

Now, clearly, it will be, since Mr Sullivan has been left in no doubt that assertions, if they so be, are identified by Axiom's team about representative capacity and those assertions will not be uncontested. Of course, the same may be said of the seventh defendants.

On Tuesday morning, 23 October, when Mr Lilley was addressing me with respect to his application, he tendered, over the objection of Mr Sullivan, a document disclosed by SMMS as T001.008.0201. This was an internal memo dated 11 January 2011 from Mr Otchi to Mr Kudo. Having looked at the document, I allowed the tender since, on its face, it may be argued (as Mr.Lilley did) SMMS was concerned by the need to fix particular persons sympathetic to SMMs cause as representatives and that it showed a willingness to interfere with the bureaucratic process. A particular instance that appeared from the memo spoke of trustee of the Leonard Bava Thavia clan.

In fact, the Chief Justice later heard argument and, in his long reasons for judgment, named Willie Denimana and Hugo Bugoro as representing the trustees and members of the Thavia clan. So while the memo (which also deals with others) may name the Thavia, subsequently the Chief Justice heard argument from the contesting landowners and clan members themselves and made his findings. The memo probably is relevant to show SMMs concern about particular representatives and its proposed dealings with them, while clearly reflecting the company's commercial imperatives. I allowed it to be read.

How else parties ask me to treat this document must await the trial, but it does, since Mr Lilley's manner when addressing was somewhat prurient, perhaps throw light on the comments of Chetwynd J where, when dealing with the injunction application on 19 September 2011, said, at paragraph 5,

"The seventh defendants rely on a land acquisition process which commenced in 1992 and completed sometime shortly thereafter was appealed to the Magistrates Court, which decision, in turn, was appealed to the High Court. There is a real question as to whether those persons who were eventually registered as owners were those persons identified in the land acquisition process. However, there is another even more fundamental concern which arises. Whilst it is borne in mind that a detailed examination of the strength of the evidence is not required in this application, it has to be observed the claimant landowners in civil case 258 of 2011 and the claimant in 296 of 2011 have a very strong case in regard to the land issue. That view is based on the comments of Kabui J in the case of Jack Sipiosa v Acquisition Officer and Or."

So then the first part of this quoted passage raises the issue of the proper process in the land acquisition by which the seventh defendants the registered owners in terms of the Land and Titles Act, and the second part, "the fundamental concern," addresses the "purpose" for that registration.

Now, dealing with the proper process issue, that involved the seventh defendants whose claim to be registered also related to their standing in their tribes and clans. The seventh defendants, reading from the FAFA claim of the first claimant at paragraph 49, by a document entitled, "Vesting Order" dated 11 February 2011, were named as owners of the perpetual estate in Kolosori land. The vesting order, sub-para (a) stated, inter alia, that (i) the Commissioner was satisfied that sections 61, 62, 64 and 65 (62, 63, 65, and 66) of the LT Act had been complied with - (ii) the acquisition officer had determined that Robert Malo, Francis Selo, Leonard Bava, Reverend Wilson Mapuru and Elliot Cortez are the rightful owners to lease Kolosori land and to receive rent on behalf of KHL - (iii) there had been no appeal against that determination - and (b) purported to order that Kolosori land be vested in the seventh defendants for and on behalf of KHL free from all other interests.

In its claim, SMMS seeks to defeat by declaration and quashing order, that Vesting Order. That issue obviously is the standing of the seventh defendants to seek the Vesting Order made on the 11th of February 2011. Mr Matthews and Mr Togamae, counsel for the cross-claimant, adopt Mr Sullivan's argument. They went further, however, to say in paragraph 17 of their submissions that, "Customary land entails rights in rem and not in personam." The Torrens system regulates the latter only – it cannot create what does not exist." They then referred me to Goldsbrough J's reasons in Mindu v. Hiva [2007] SBHC 165 and the reasons on appeal, where on the facts of Hiva's case, the Appeal Court pointed to the failure to consult the customary landowners about the registration in 2008 (Hiva v. Mindu CA-CAC 13 of 2008 (23 July 2008). These arguments may well be raised before me again in the hearing.

Mr Lilley says these matters concerning standing and the right to represent are proper concerns of both SMMS and Axiom and I might say the seventh defendants. Mr Lilley does not want later claimants to come out of the woodwork. It stands to reason then that I might, in the interest of justice on my own initiative, require similar proofs of the seventh defendants. But should I make the order, since on a proper reading of Kova's case, the issue of who may properly represent in custom is always alive during trial and the point may be taken at the conclusion of the claimant's case or the defendant's case in reply. I have already touched on the nature of the evidence which may go to such proof, although I do not wish to be restrictive. In my discretion I dispense with strict compliance with Rule 3.42 and no longer require proof before trial.

Mr Sullivan says there's no need for the order and accepts the burden of proof at the trial. Mr Lilley says the basis of his application is that,
"The evidence that was there was insufficient and we want proof otherwise the claim should be dismissed. That was the basis that we ran it on, so he can put on further evidence and if that's not sufficient, then your Lordship should dismiss the claim."

I come back to the evidentiary manner in which proof in custom to act as a representative is required and say that it is not sensible in this case to have a trial within a trial on that issue. The evidence needs to be considered as a whole. As I have said, there is some evidence to which Mr Sullivan has pointed.

Both counsel accept the burden remains during the trial. If my order requires further action by pleadings or statements, then I will deal with it at that time, notwithstanding my view on the proper construction of Kova's case, I make an order in terms of r.3.42 excepting the last part (excluding the word "before" and those words which follow).

That order shall include the seventh defendants since their claim to registration arises through custom. I accept that the applicant has shown it is entitled in this case to seek such an order and it is a proper exercise of my discretion to grant. This should not be read to mean I accept Axiom's proposition that there is no proof apparent.

THE COURT