Tausuli v Heno [2014] SBHC 38; HCSI-CC 334 of 2011 (21 May 2014)

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

Civil Case No. 334 of 2011.

BETWEEN:

JOSEPH TAUSULI and NIKASIO LOHO
(For and on behalf of the Lakuli tina tribe West Guadalcanal, Guadalcanal Province)
First Claimant

AND:

MATHEW HENO and KALANI PEROLE
(For and on behalf of Haubata Tribe, West
Guadalcanal, Guadalcanal Province).
Second Claimant

AND:

ABDON PARAI, JOSEPH KESALE and
MEMORIO TANGISIKAVI
(For and on behalf of the Kikipale Tribe, West
Guadalcanal, Guadalcanal Province).
Third Claimant

AND:

DANIEL KIKILE AND JACK HANIGARO Defendant
(For and on behalf of the Laukuli Valimauvo subtribe,
West Guadalcanal, Guadalcanal Province).

Date of Submissions: 2nd May 2014.
Date of Ruling: 21st May 2014.

Ms E. Garo for first, Second and Third Claimants.
Mr M. Tagini for the Defendants.

RULING ON APPLICATION FOR SUMARY JUDGMENT.

Faukona J: An amended claim (category A) was filed on 3rd November 2011. The reliefs sought comprised a number of declaratory orders and subsequent orders. In response, a defence was filed on 30th May 2012. On 11th July 2013 this application was filed for summary judgment against the Defendants.

2. The cause which prompted application for summary judgment is a personal assessment by the Claimant who believes that the defendants' defence does not have any real prospect of defending the Claimant's claim -Rule 9.57. By virtue of Rule 9.64 the court must be satisfied that the Defendant has no arguable defence to the claim. Hence, there is no need for a trial; the court must give summary judgment to the applicant.

3. The starting point for consideration is a critical assessment of the Claimant's claim. The Claimants are saying that the customary lands claimed by the Defendants as comprised talalu 1, 2 and 3 are not located within ward 1 (Tandai Ward) and Ward 2 (Saghalu ward) but are located in ward 3 (Savulei ward). That assertion was supported by the judgment of Guadalcanal Customary Land Appeal Court, which clearly indicated that the appeal before them concerned lands located within Wards 1 and 2. Therefore, talalu lands claimed by the Defendants were situated outside of vaturanga area, hence not covered by 1982 timber rights processes.

4. In consequence of the timber rights processes, BK Maurice and Sons Limited were issued with felling licence in respect of laukili, kidipale, kakau and haubata tribes. Dalsol Company Limited was contracted to conduct logging operations. When the license expired Kalahaki timbers limited was granted extension to operate logging.

5 Not at any time, the Defendants lodged a claim against the Claimants or appealed against any of the determinations. It was then that the defendants filed the claim in Civil Case No. 431 of 2007.

The Defence:

6. The words used in the Rules are that there is no arguable defence to the claim or no real prospect of defending the claim. To determine whether there is or no real prospect of defending a claim the court has to examine the defence closely.

7. Ms Garo submits that the Defendants' right of ownership to talalu lands 1, 2 and 3 premised on the determination of Geana Area Council in 1994. That determination was appealed against and quashed. Beside that, the Defendants' also rely on Chiefs determination on 26th June 1984.

8. Apart from that, the Defendants alluded that this case raises the same issues pleaded previously in Civil Case 431 of 2007, with same sworn statements, which had been dismissed by Justice Chetwynd, therefore is an abuse of process. Further to that, the Defendants' claim of ownership over talalu 1, 2 and 3 as they were grantors of timber rights over those lands as determined by Geana Area Council in 1994, may perhaps be a belief before the appeal which eventually must come to an end.

9. On 3rd may 2011, an application was filed by the Claimants in an attempt to be joined as party to Civil Case No. 431 of 2007 but their application was dismissed.

10. The Defendants reiterated that the Claimants cannot interfere with Civil Case 431 of 2007 with their new claim. The 15 blocks of land within talalu 1, 2 and 3 had been adjudicated in Civil Case 431 of 2007 and now reached enforcement stage.

The issues:

11. Ms Garo in her submissions advances three issues that this Court ought to deal with. I guess those three areas according to her may have attract no viable defence and hence does not have any real prospect of defending the claim. The issues are whether or not the Geana Area Council determination on 16th November 1994 was quashed and not a final determination of timber rights. Secondly is whether the Savulei and Saghalu House of Chiefs determination on 26th June 1984 is a falsified document. And lastly whether that House of Chiefs determination is enforceable under the Local Court Act.

12. Ms Garo as appear from her written submissions, paragraph 5, seem to put the Court on strict sense that should the Court determine issue in favour of the Claimants then the application for summary judgment be granted accordingly. I do not think the Rules of the Court favours that sort of approach. Application in this nature normally is determined on the basis of unfettered discretion of the Court, depending on the assessment of the strength of the defence, and of course other circumstances surround the case. This approach in my opinion is fair and I will adopt. Essentially, I will divert from the suggestion Ms Garo seems to favour.

Geana Area council Determination:

13. The issues raised by Ms Garo for determination are similar in meaning and tone with reliefs 1, 2 and 5 sought in the substantive claim. Perhaps the motive is probably to reinforce a parallel determination. However, I'm afraid and reminded myself the task am called to do is to assess the state of the defence and its strength and whether it has prospect to defend the claim. If it is so bad of course, a summary judgment is inevitable. For time being, it would be misconceived and premature to decide on the facts that support the relief sought in the substantive claim.

14. The argument on this issue is that, at that time when the Defendants obtained the interim orders on 20th November 2007, there was nonexistence of a valid determination of the Geana Area council by virtue of the quashing order by the CLAC. Ms Garo went to the extent to proof by sworn statements of the quashing order.

15. I think the records had spoken. Mr. Tagini agrees if the Area Council determination was quashed, it was quashed, the records say it all. What else more needed to be proved? The problem here is the issue of land ownership is a live issue including the boundaries and locations of the lands. A map attached to the amended claim indicated different locations with a small portion of commonality at the centre in relation to talalu lands 1, 2 and 3 as presented in Civil Case No. 431 of 2007, and as in Form II determination in 1997.

16. A point to note is that it is not necessary for someone to be equipped with a determination of Area Council before he can obtain ex-parte orders. An assertion of right of ownership in custom is sufficient to ground an application for interim injunctive orders. This is necessary in situation where logging encroached into customary land not being part of the concession area. An asserted landowner may apply to Court for injunctive orders.

17. The High Court Case No. 431 2007 concern with damages for trespass and conversion of trees. Above all the orders granted were because the Defendant had failed to comply with certain orders of the Court.

18. When arguments premised on that issue that the Court was misled and misinformed, I wonder in what way? Since my seven years on the bench, I have never noted at any one time the Court refused to grant orders after acknowledging the Defendant failed to comply with Court Orders. It is a simple case and consumed least of time and can be disposed of in fifteen minutes.

Chiefs determination (26th June 1984):

19. The second and the third issue are more or less connected. Arguments irrespective of Savulei and Saghalu Chiefs determination on 26th June 1984, has been one of dominant issue since the inception of the dispute between the parties. The allegation is that the written document that contain the Chiefs determination was a falsified document and hence unenforceable under the Local Court Act. As such could not be accepted as genuine on the face of it.

20. Again this is another issue which the Claimants belief that there is no defence or sloppy defence to rebut the allegations. Ms Garo submits that the purported chiefs' determination held no names of parties; who is the Claimant and who is the defendant. She further questions if the Defendants had obtained the decision on 26th June 1984, they would have produced to the High Court in Civil Case No. 431 of 2007 at the first instance on 16th November 2007. However, that was done 6 months and 10 days after the case was filed and they had obtained the orders on 20th November 2007.

Mr Tagini submits that the issue of Chiefs' determination had been raised in previous proceedings and determinations had been made to that effect. I noted from Ms Garo's submissions that she relies on sworn statements to proof the point from six deponents who deposed sworn statements filed in 2009, 2 years before filing of this proceedings. That implicates to me that those sworn statements relied on were used in previous proceedings and that concurs with Mr Tagini's submissions.

21. In civil Case No. 431 of 2001 the Claimants filed an interpleader application. However, Justice Chetwynd made it clear on paragraph 2 that the Applicants were simply repeating what had been argued before, that Defendants were not the true owners of all the lands. Reference was also made to Timber Rights hearing in 1982. The important aspect of that judgment is part of paragraph 2 which I now quote;

"There was the obligatory reference to the fraudulent decision by the Chiefs". This was a rehash of the issues dealt with by Goldsbrough J in April 2010. His decision was confirmed by a single judge of the Court of appeal and then by full Court. His Lordship made it plain those present proceedings concerned a, ... decision made under the Timber and Forest Resources Utilisation legislation in 1994 by an Area Council and subsequent decision of the Commissioner of Forest. Those proceedings are not the subject of challenge and those decisions whether they were made in error or not, are not open to debate in 2010".

22. If debate on the same issues closed in 2010, are they opened now? Or do I have jurisdiction to entertain same issues that had already been debated, now on the floor of this Court in 2014? I must refuse and accept Mr Tagini's submission on this point.

23. To give justice to this issue, let me in brief outline my opinion after I have studied the Chiefs determination in depth. I agree with Ms Garo that there were no mention of names of disputing parties and no identification as to who are the Claimant and defendant. However, it appears to me the document purported to contain the Chiefs determination was more in the nature of report. There are instances where tribes would like to have record of their history. Before they can be recorded, someone as experts or chiefs as in this case, be present to listen. At the end of the day the expert or Chiefs either affirm, criticise or disapprove the submissions. It is not a kind of formal litigation where parties identified, but is like a one sided hearing; a common practise now familiar by the Chiefs.

24. The point is that those documents are private and belongs to that particular tribe. Should such report leaked to others whose rights and interest may be affected, then a formal Chief proceedings be convened or if not a reference case be referred to the Local Court. I don't think the Local court has power to enforce a chief's decision. A Chiefs decision is evidence to ground referral to the Local Court.

25. Of course, there are occasions where such documents are produced to foot a claim in formal proceedings as Timber Rights hearing and even in Courts. On the other hand it can be treated as a driving force to have the dispute formally proceeded in the proper Chiefs hearing or reference to the Local Court by an affected party.

26. The effect of the Chiefs' determination on the initial orders were minimal or none at all. The orders were granted before the Chiefs determination came into existence. The fraud that was alleged to have committed in framing the determination had been dealt with by Chetwynd J in the above quote, an exponent of the Courts stand on the issue. Nothing much can be expected from this Court. Further to that, Justice Goldsbrough on paragraph 1 when dealing with application to set aside stated that the application to set aside either judgment is the same ground of fraud, and the allegation of fraud in each instance is the same. On paragraph 10 His Lordship said that the use of such decision, which may or may not have been made, that is a question for trial not this application, amounts to fraud.

Land ownership, boundaries and location:

27. The issue of customary landownership has been raised and rehash once again. So as the issue of boundaries and location of lands. The arguments that there were two different documents produced in respect of the same lands but in different location. That I noted in the map attached to the amended claim. However, it is an issue to be dealt with by a rightful forum and not in the High Court. However, there is perhaps some tendency that the lands located in 1994 Timber Rights hearing are extended into Ward 3. Extension of land boundaries and claims of assertion of ownership are Common features in land dispute in this country. But there are avenues provided by law where such dispute could refer to and be dealt with accordingly.

29. Apart from assessing the Defendant's prospect of defending the case Ms Garo advance a massive submissions which extend to cover many issues most of which are not relevant at this stage, but at trial or in other appropriate avenue. Some issues had been dealt with in previous proceedings, and they have been adjudicated upon by the Courts. Other issues as res judicata are totally irrelevant to deal with at this stage. The same can be said in relation to making an order affecting an order made by a Court in other proceedings. This particular issue would be left for argument at trial. Then at the conclusion fraud dominates again.

30. It would appear from Ms Garo's submissions she seem to treat her application as a trial of the claim. Many issues and arguments advance could have been left for trial.

31. One thing I noted is that before the Claimants filed this claim on 3rd November 2011, their interest had been advanced in Civil Case No. 431 of 2007 on the application to set aside heard by Justice Goldsbrough and application for interpleader heard by Chetwynd J. Common features are Geana Area Council determination of 16th November which was quashed on appeal to CLAC, Chief's determination on 26th June 1984, fraud that alleged ownership, boundaries and locations. When this claim finally filed there was nothing new, some old issues emerged again.

32. Lastly, Let me just say that all these cases could have been avoided should the Defendants and their Solicitors simply complied with directive orders of the Court in the initial proceedings. What may now require is justice, but justice has its own limitations guided by the Rules of court and law. Having said that I therefore dismissed the application for Summary judgment.

Orders:

1. Application for Summary Judgment dismissed.

2. Cost of application borne by the Claimants.

The Court.