Jaiki v Huhugu [2013] SBHC 28; HCSI-CC 500 of 11 (2 April 2013)

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

Civil Case No. 500 of 2011.

BETWEEN:

MARTIN JAIKI, CHARLES LEVI,
NOLLEN JOLO and DAVID HARPER
(Representing Vihuvunagi Gualo Tribe).
Claimant

AND:

CASPER HUHUGU, THOMAS TAVEKE and
THOMPSON TAVEIKE (Trading under
Loguhuhu Community Milling).
1st Defendant

AND:

CHUNG SOL COMPANY LIMITED
2nd Defendant

AND:

CHIEF BEN MANELEGUA
3rd Defendant
(Representing Vihuvunagi Bengere Tribe).

Date of Hearing: 13th March 2013.
Date of Ruling: 2nd April 2013.

Mr G. Suri for the Claimant
Mr D. Nimepo for 1st and 2nd Defendants
Mr G.Fa'aitoa for 3rd Defendant

RULING.

Faukona J: This is an application for setting aside of orders made by this Court on 25th July 2012 and that, Orders made by Chetwynd J, be restored and be reinforced. The orders made on 28th July 2012, were in the following effect;

(b) to refer a land dispute to the Chiefs.

(c) to lift the previous Court injunction.

2. On the outset the orders were made not following the normal judicial process which the Judge took time to consider and finally decide. As it appear from order format, reflects that orders were conscientiously agreed upon by the parties through their legal representatives. As such the submissions do not require research followed by an ultimate ruling. The format structure of the orders precludes any such, hence cannot be argued that the Judge fail to consider that there was a Chiefs hearing determination disclosed in the exhibits.

3. The consent orders by the parties does not require further perusal of material but was a call for endorsement and perfection at the end thereof.

4. The argument advanced by Mr Suri that at the time the orders were made, or even immediately prior to it, the Claimants were not present and there was no consultation with them and no instructions obtained. The Consequent of which was prejudicial to them which contradict the previous orders perfected by Chetwynd J. Those orders of Chetwynd J refer to, does not have lead up or reference to date. I could only assume was one which contains restraining the Defendants from dealing with the subject matter, the timbers.

5. The argument that there being no evidence to support this application is swallowing and holds nothing. The written submissions by Mr Suri clearly indicate that the Claimants/Applicants will rely on sworn statement by Mr Jaiki filed on 28/8/2012 and other sworn statements filed before that.

6. The issue of non-presence is an excuse upon which the Defendant's Counsel argues is of no validation. As long as the legal representative present require no attendance by the party. In this case non-attendance is associated or link with the fact that the Claimants were not aware of the date of submissions and had not given instruction prior to that. Whilst I agree that parties do not necessary attend hearings except where notice of cross examination is filed, which they are required to attend. Attendance is one issue; however, most significant is giving instruction to a legal representative. In this course the Claimant denies giving instructions before the submissions were made which consequently resulted in orders being made. I think counsels should be cautious and vigilant to put priority of their clients first before any other thing. Once a solicitor/client relationship is created the Solicitor is obliged to serve his client with uttermost good faith and honesty. Instructions must first be obtained before indulged in proceedings which may result in determination by the Court.

7. The order that the case be referred to the appropriate house of chiefs to be heard was a miss-direction by the Counsels. It's now transparent that the Bugotu house of Chiefs had determined the customary land ownership between the 1st Defendants with another clan in 1986. The 1st Defendant had lost that case and since then had not refer any case to the appropriate Local Court.

8. Mischievously the Claimant, the 1st Defendant and the 3rd Defendant still wish to argue rights over that land which had already been won by someone. Of course, it binds on 1st Defendant only, but the clan which won by the Chiefs determination had the better right than all of them. If the Claimant is blood related to Asa Ageage there should be evidence by way of sworn statement from Asa Ageage to confirm such relationship. In the interim the Vihuvunagi clan has always be the second name. There is nothing on the material. Whether the Claimants are the same clan as Asa Ageage that has to be verified by evidence.

9. Apparently, as it may, the Claimants, 1st Defendant and the 3rd Defendant has to sort themselves out with Asa Ageage the person who by the Chiefs determination had won.

10. My perception of the situation generally is quite complicated. It is complicated because Asa Ageage the person who won by the chiefs determination is not a party to this case. Had he been included the case would have less complication.

11. Amidst the complication and having taken cognisance of the authority in Aerolift case[1], I therefore set aside Orders of 25th August 2012.

Injuncted timbers by Court:

12. The second order being order 2 which this application to set aside is concerned. That order was a variation from previous order by Chetwynd J to sell the timbers and proceeds to pay into joint trust account.

13. The argument by Mr Suri is that there was no instruction from his clients to former Solicitor before soliciting somewhat a consent order which the Court perfected on 28th August, 2012. I have reiterated fully on solicitor client relationship in paragraph 5 above, and there is no need to repeat the same. Except to say the Claimants maintain their stance not sale the timbers. Their letter on 7th February 2012 affirmed that.

14. With the complication stage this case has now reached, I am of the view that Orders 2 be set aside as well allowing previous order by Chetwynd J to continue take precedent. Whilst that may be so, the parties have to sort themselves out in the right forum to deal with the issue of customary ownership of the land where timber milling had taken place.

15. Having said that I therefore made the following orders.

Orders:

1. That orders made by this Court on 28th July, 2012, be set aside and that the orders made by Chetwynd J be restored and be enforced.

2. Order declaring that the finding of Bugotu House of Chiefs made in 1986 in respect of kilehi-salavo land is naturally binding on the 1st Defendant.

3. Order to declare the issue that the Claimants belong to the same Clan as Asa Ageage is refuse on two grounds, (1) it is a question the Chiefs will determine and not this Courts, (2) there being no evidence to prove so.

4. Cost in the cause.

The Court.

---

^[1] [2001] SBHC 144, HC – CC 387 of 1995.