Lapo v Ngavole [2014] SBHC 36; HCSI-CC 288 of 2012 (19 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(MWANESALUA J)

CC. NO: 288 of 2012

BETWEEN:

SHEPARD LAPO
Claimant
(Representing Kopi Tribe)

AND:

SAMUEL NGAVOLE AND CLAN
First Defendant

AND:

NAHUM NGAVOLE AND CLAN
Second Defendant

AND:

SAVA AND CLAN
Third Defendant

Date of Ruling: 19 May 2014

Mr Hiele for the Claimant
Mr Pitakaka for the Defendants

RULING

MWANESALUA J:

1. This is an application by the Defendants for the following orders:

1. The Claimant's claim filed on 30th August 2012, be strike out pursuant to Rule 9.75 (a), (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007;

2. Claimant pay the Defendant's costs and incidental to this application, including, if thought fit, costs on an indemnity basis;

3. In the interim, the claimant, members, invitees and supporters of Kapi tribe shall be restrained by injunctions not to be interfered with the quite enjoyment of the first Defendant in respect of Sulolo land and the Second and Third Defendants in respect of Lopa Land until it is respectively finally determined through the normal process in the appropriate forums vested with competent jurisdiction to deal with customary ownership; and

4. Such further orders as the Court thinks fit.

2. The Claimant filed his claim on 30th August 2012 seeking the following orders:

1. An order that the first Defendant, his immediate family members, relatives, and clan, vacate Patubelo Village, on Sulolo Land, Choiseul Province not later than 1 December, 2012.

2. An order that the Second Defendant, his immediate family members, relatives, and clan, vacate Kio Village on the same.

3. An order that the third Defendant, her immediate family members, relatives, and clan, the Sava Clan, be restrained from any further trespassing onto and conduct gardening or harvesting from Sulolo Land;

4. An order that the First and Second Defendants by themselves, their family members, dependents, relatives, or tribal members, remove all their properties from the same not later than 1 December, 2012.

5. An order to restrain all Defendants, their family members, dependents, relatives and tribal members from entering, residing, harvesting and carrying out further development activities on Sulolo land.

6. Costs.

7. Any such orders that the Court may deem fit.

3. The Claimant represents the Kapi tribe of Choiseul Province. He claims that his tribe owns Sulolo customary land which stretches from Lulua in land to the seashore at Patubelo Village. He asserts that there are old tabu, grave, village and cremating sites belonging to his tribe on the Land. In addition, there are food gardens, nut trees and members of his tribe still living on the land.

4. He asserts that Patubelo and Kio Villages in which the First and the Second Defendants live respectively are situated within Sulolo Land. He further asserts that whilst the Third Defendant is residing outside of the Land, the Third Defendant occasionally trespassed on the Land to make vegetable gardens and harvest bush materials.

5. The First Defendant lives at Patubelo Village and is a member of the Suvelo tribe. The second Defendant had passed away who was a member of the Puibangara tribe. The third Defendant has also passed away as well, and a members of the Puibangara tribe as well. Her authorised representative in this case is John Meva Leketo.

6. The application by the Defendants to strike out the Claimant's claim is made on the grounds that:

(a) the proceedings are frivolous and vexatious;

(b) no reasonable cause of action is disclosed; and

(c) the proceedings are an abuse of the process of the Court.

7. This claim is an application for orders. It is classified as a category A proceeding, which includes, a Customary Land Claim, as in this case, as provided under Rule 2.14 (a) of the Rules.

8. The Claimant based his claim on the decision regarding Sulolo Land by Deputy Commissioner, Western Solomons on 21 August, 1946. In that decision, it was held that Lapo owns the Sulolo Land for all time. The Land stretches from Lulua in land to the beach. It boundaries had been drawn with names of tabu places and villages included.

9. In view of this decision, this Court will refuse to strike out the Claimant's claim, as it is not frivolous, vexatious, disclose no cause of action and an abuse of the process of the Court. The case should therefore be listed before a civil judge for mention. Costs in the cause.

THE COURT