Wapua v Tana [2014] SBHC 121; HCSI-CC 495 of 2011 (10 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOHN MAELASI WAPUA
(representing the trustees of Naqogonarafa
Customary land and members of his family)
Claimant.

AND:

CHARLES WANISIMAWETANA
(representing the members of the family of Geoffrey
Nimanima and his clan)
1st Defendant

AND:

MRS. MAY RASINI
(representing her family and clan).
2nd Defendant.

AND:

ALBAN TAOQOROA
(representing the members of the family of Simon
Peter Reresimae and his clan).
3rd Defendant.

For the claimant: M. Ipo

For the 2nd Defendant: D. Marahare

No appearance for the 1st and 3rd Defendants.

Date of hearing: 21 July 2014

Date of judgment: 10 September 2014.

RULING

Apaniai PJ

Introduction.

1. This is an application by the 2nd defendant to strike out this proceeding on the ground that the claim discloses no reasonable cause of action.
   

Legal principles.

2. In Read v Brown[1], the term "cause of action" is defined as every fact which it would be necessary for the claimant to prove, if traversed, in order to support his right to the remedy sought.
   
3. In Lowa v Akipe[2], it was said that a cause of action consists of two components. First, there must be a right which is given by law and the violation of the right. This is the form of action. The second is that the pleadings must disclose all the necessary facts which give rise to the form of action. Where damages have been suffered without the violation of any right, there is no cause of action.
   
4. Where a claim discloses no cause of action, it is not in the interest of justice that time and money should be wasted in pursuing the case further. The case should be dismissed at the initial stage of the proceeding.
   
5. However, striking out a claim and dismissing a case summarily is a drastic action and should done only in cases where it is very clear that the claim is baseless and so hopeless as to be described as abuse of process[3]. That means as long as the statement, or the particulars, of the claim disclose some cause of action, or raise some question fit to be decided by the court, the mere fact that the case is weak and not likely to succeed is no ground for striking it out[4].
   
6. In determining the issue whether a reasonable cause of action is disclosed, the court looks only at the form of action and considers whether the facts asserted in the statement of the case give rise to the form of action. In other words, the court will assume that the asserted facts are true and then decide whether there is a viable case against the defendant for the relief sought[5]. Where the asserted facts do not support the relief sought, there is no cause of action.
   

Remedies sought.

7. Having said that, I now turn to the remedies sought in this claim and the facts asserted.
   
8. In the claim, the claimant seeks the following remedies:-
   

[a] against the 3rd defendant, their servants, agents and members of their clan, an order that he remove the custom house built inside Naqogonarafa;

[b] against all the defendants, their servants, agents and members of their clans, a permanent injunction restraining them from entering Naqogonarafa and felling or removing any trees there from or milling timber therein;

[c] against all the defendants, their servants, agents and members of their clans, a permanent injunction restraining them from disturbing, interfering with, obstructing or threatening the claimant and the members of his clan in the exercise of their right to fell, remove and mill trees within Naqogonarafa;

[d] damages against all the defendants for trespass and conversion of trees in Naqogonarafa in such amount not exceeding $60,000.00; and, Costs.

Facts asserted.

9. The facts asserted to found the claim can be summarised as follows.
   
10. The claimant alleges that he is an authorised representative of the trustees of the Naqogonarafa customary landowners. Naqogonarafa customary land ("Naqogonarafa") is situated in Santa Ana of Makira Ulawa Province.
    
11. The claimant says that Naqogonarafa is part and parcel of a larger customary land known as Maroborahu customary land ("Maroborahu") the boundary (or "spearline") of which has been defined in land case No. 1/71 ("Case No. 1/71"), heard by the Native Court in 1971, as from Niu Kirifia to Wapasurua. He says that Maroborahu was won by Malachi Qoniara ("Qoniara") against Jeffrey Nimanima ("Nimanima") in Case No. 1/71 - a case heard by the Native Court in 1971. He says that an appeal by Nimanima against that decision in Native Land Case No. 19 of 1973 was rejected by the High Court.
    
12. The claimant further says that Qoniara, who died in 2008, was his uncle and that he and his family are members of Qoniara's line. He says that the 1st and 2nd defendants and the members of their families are from Nimanima's line. He says Nimanima is from the Gafe clan and therefore the 1st and 2nd defendants are also from the Gafe clan.
    
13. As regards the 3rd defendant, the claimant says that the 3rd defendant is from the Mwa clan and represents the family of Simon Peter Reresimae ("Reresimae") who was also a member of the Mwa clan. He admits that the 3rd defendant was not a party to Case No. 1/71 but is fully aware of the decision in Case No. 1/71 that Qoniara and his line are the owners of Maroborahu and, hence, Naqogonarafa.
    
14. The claimant alleges that in 2008, the 1st and 2nd defendants have milled trees from Naqogonarafa into timber and had sold the timber to the Santa Ana primary school without his consent or that of his clan.
    
15. The claimant also alleges that in 2008, the 1st defendant had also milled trees from Naqogonarafa into timber and had sold the timber to the Anglican church in Santa Ana without his consent or the consent of his clan.
    
16. The claimant further alleges that in January 2010, the 3rd defendant had built a custom house inside Naqogonarafa without his consent or that of his clan. He says, however, that the 3rd defendants have now stopped construction of the house as a result of objections from him and his clan.
    
17. The claimant also alleges that in December 2010, the 1st and 2nd defendants have damaged timber milled by the claimant and his clan from trees felled inside Naqogonarafa.
    
18. Furthermore, the claimant alleges that in January 2011, Mr. Waofa, son of the 2nd defendant, had entered into Naqogonarafa and had marked his name on trees in Naqogonarafa which is an indication that he( Waofa) owns the trees.
    
19. Finally, the claimant alleges that the 1st and 2nd defendants are planning to enter Naqogonarafa for the purpose of milling timber.
    
20. As a result of these actions by the 1st, 2nd and 3rd defendants, the claimant has filed this claim seeking the remedies stated above.
    

Decision and orders.

21. Assuming that the asserted facts are true, do they disclose a viable case against the 1st, 2nd and 3rd defendants for the reliefs sought? I think they do against the 1st and 2nd defendants. I do not think the claim is baseless and so hopeless as to be described as abuse of process to justify terminating it summarily against the 1st and 2nd defendants. I am satisfied there is a viable case against the 1st and 2nd defendants.
    
22. It follows, therefore, that this application must be dismissed and that the 2nd defendant pays the costs of the claimant on standard basis to be taxed if not agreed.
    
23. Unfortunately, I cannot say the same against the 3rd defendant. There is no case in which the claimant has been awarded any judgment against the 3rd defendant in connection with Naqogonarafa or the main Maroborahu customary land. The fact that the 3rd defendant is fully aware of the decision in Case No. 1/71 which allegedly awarded judgment in favour of Qoniara and his line as owners of Maroborahu and, hence, Naqogonarafa, does not necessarily mean that they are bound by that judgment. Decisions of ownership relating to customary land are judgments in personam. They do not bind persons or tribes who are not parties to the case in relation to which the judgment was give. Furthermore, the High Court has no jurisdiction to determine ownership of customary land. It follows that the claim against the 3rd defendant must fail. The claimant is to pay the costs of the 3rd defendant on standard basis to be taxed if not agreed.
    
24. Orders accordingly.
    

THE COURT

J. Apaniai
Puisne Judge

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^[1] (1888) 22 QBD 128).
^[2] [1991] PNGLR 265 (7 August 1991).
^[3] Steward Tatalu –v- Elison Lifuasi & Alban Leaga – cc. No. 146 of 1996.
^[4] Reef Pacific Trading Ltd & Others –v- Thomas T. Kama – cc. 56 of 1996
^[5] Earthmovers (Solomons) Ltd (trading as Pacific Timbers) –v- Samuel Thao & Others (trading as Aola Timber Exports Agency) – cc. No. 65 of 1997.