Tausuli v Kikile [2014] SBHC 85; HCSI-CC 334 of 2011 (2 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

CIVIL CASE NO. 334 OF 2011

BETWEEN:

JOSEPH TAUSULI and NIKASIO LONO
(For and on behalf of the Laukuili Tina Tribe, West Guadalcanal, Guadalcanal Province)
First Claimants

AND:

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

AND:

ABDON PARAI, JOSEPH KESALE and MEMORION TANGISIKAVI
(For and on behalf of Kidibale tribe, West Guadalcanal, Guadalcanal Province)
Third Claimants

AND:

DANIEL KIKILE AND JACK HANIGARO
(For an on behalf of the Laukuili tribe, West Guadalcanal, Guadalcanal Province)
Defendants

Date of Hearing: 2nd May 2014
Date of Ruling: 22nd September 2014

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

RULING ON APPLICATION TO STRIKE OUT

Faukona J: On 2nd May 2014, there were counter applications heard by the Court. The Claimants' application was for summary judgment and the Defendants' application was to strike out the claim. The application for summary judgment had been determined on 21st May 2014, whilst the application to strike out was overlooked, now it has been done.

2. The application to strike out premise on the usual legal principles set out by Rule 9.75 that the proceedings are frivolous and vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of Court processes. Any of those common cause for early exit present in the claim, the Court has to strike out the claim at an early stage.

3. The prime argument in support of the application is that this case raises the same issues previously raised in Civil Case No 431 of 2007 and relies on the same sworn statements. There were two cases. One deals with the application to set aside and the other deals with assessment of damages. In both cases they were dismissed by Justices Goldsbrough and Chetwynd therefore is an abuse of process.

4. In determining the application certain paragraphs of my ruling on 21st May, 2014, concerning application for Summary judgment, is referred to. In fact, most of the issues are common subject to both applications.

5. From submissions it would appear the issues that were raised in previous proceeding has been raised in this case. That includes Geana Area Council determination and purported Chiefs determination on 26th June 1984. It is a clear case at the time when the Defendants obtained judgment in default on 20th June 1984, there was nonexistence of a valid determination of the Area Council by virtue of quashing order by CLAC on appeal. In respect of the Chiefs determination, I agree that it was not a chiefs determination but a report. It is not a formal litigation where parties are identified, but a one sided hearing; a common practise now familiar by the Chiefs. This is purposely to prompt an interested party to call for formal chiefs hearing, or if not a reference case be filed with the appropriate Local Court.

6. The Claimants see proper to capitalise on what they view as irregularities to support their allegation of fraud. They averred that the Court on 20th November 2007 was misled and misinformed of the two determinations, hence granted the default judgment.

7. 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 rights of ownership in custom is sufficient ground to foot an application for interim injunctive orders. This is necessary where logging operation encroached into customary land, which is not part of the concession area.

8. In the end, what matters is raising the same issue again grounded on allegation of fraud, which had been raised previously and were dismissed. Further to that, Ms Garo relies on sworn statements to proof the point from six deponents who deposed sworn statements filed in 2009, two years before filing of this proceeding. That is a clear implication that the sworn statements relied on were used in previous proceedings. This was affirmed by Justice Chetwynd in Civil Case No. 43 of 2001 which he stated in paragraph 2.

" There was the obligatory references to the fraudulent decision by the Chiefs. This was to rehash of the issues dealt with by Goldsbrough J in April 2010. His decision was confirmed by 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 Forests. 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"

9. Goldsbrough J when dealing with the application to set aside stated in paragraph one (1) 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. Again, the same allegation of fraud is raised here in this case.

10. Further still the issue of landownership has also been raised together with boundaries and location of lands. The argument is that there were two different documents produced in respect of the same lands but in different locations. These are issues, which can be dealt with by the right forum in a proper avenue provided for by law.

11. To conclude, before the Claimants filed this claims their interest had already been advanced in Civil Case No. 431 of 2007 on their application to set aside heard by Justice Goldsborough, and application for interpleader heard by Chetwynd J. Common features in those proceedings are Geana Area Council determination on 16th November 1994 which was quashed on appeal by CLAC, the Chiefs determination on 26th June 1984, fraud that alleged ownership, boundaries and location of those lands known as talalu 1,2 and 3. When this claim was finally filed, there was nothing new. In fact, the Claimants are repeating the same old issues for determination which had been raised and considered and determinations had been made. To resurrect the already determinant issues again is an abuse of Court process and I must refuse to accept.

12. Lastly, the issue of customary land ownership is a live issue, including boundaries and locations. Parties need to acknowledge their rights and access to legal avenues provided by law to litigate their rights to customary land.

Orders:

1. Application to strike out granted.

2. Cost been awarded in the first ruling as both application were composite and heard at the same time.

The Court.