Soro v Pou [2015] SBHC 11; HCSI-CC 252 of 2014 (2 April 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 252 of 2014

BETWEEN:

CHARLES SORO
(Representing Himself and the various Landowners of various portions of the Lands within Pugu Land)
1st Claimants

AND:

CENTRAL PROVINCIAL EXECUTIVE
2nd Claimants

AND:

GEORGE POU
1st Defendant

AND:

HYBRID RESOURCES LTD
2nd Defendant

AND:

EVERWIND COMPANY LTD
3rd Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
4th Defendant

Date of Ruling: 25th March 2015

Balea S for the Claimants
Rano W for the 1st & 2nd Defendants

RULING ON APPLICATION TO STRIKE OUT

Maina J:

Introduction

This is an application by the Defendants to strike out the ex parte interim order made by this Court restraining the Defendants from carrying out logging operation and related activities within Pugu customary land on Gela Islands Central Province.

The Law

Rule 9.75 of the Civil Procedure Rules requires the applicant to manifestly proof on the balance of probability that the case is frivolous and vexatious, it has no reasonable chance to succeed and is an abuse of Court process.

Further, the Court has such power to strike out or discharge orders but it is discretionary. This principal is well accepted in this jurisdiction and as discussed by His Lordship Palmer ACJ in the case of Tikani v Motui [2001] SBHC 151: HC-CC 29 of 2001 [25 October 2011] on page 1 paragraph 7, when he said:

"the Courts' power to strike out or discharge such orders is discretionary and the Court would have to determine if there is cause of action. It would not only be looking at the evidence but also the pleadings and in particular, the statement of claim if discloses cause of action or raises the question fit to be decided by trial. If no evidence is adduced and no pleading is filed it will not assist the Court to determine if there is cause of action".

In all the respect, it is particularly the claim that would assist the Court to determine if there is cause of action.

Counsel for the Defendant under rule 26.6 of the Civil Procedure Rules applied that time to hear this application be abridged to a date earlier than 11th September 2014; however, this application was heard after the date.

Brief Background

The Defendant was determined by the Second Claimant as the persons entitled to granted timber rights over Larger Pupu customary land, inclusive of Betinialu, Sarisiripa and Tanivaviku on 16th August 2012. The determination was not appealed against by the Claimant.

On 12th August 2014 the Claimant was granted interim orders restraining the first, second and third Defendants from carrying out logging operation and related activities within Pugu, Binu and Bolilau customary land.

In the interlocutory injunction was also an order for the Claimant to file a claim within 14 days.

On the 22nd August 2014, the Defendants applied to strike out, set aside or vary the interlocutory order on the basis that Claimant Mr. Soro lacks the legal standing to represent other landowners. The cases he has with the chiefs and Courts were dealt with and, the timber right process had been done for the concerned land with no appeal from the Claimant.

Issues

There are two related issues:

1. No claim was filed within 14 days as directed by the Court and even to this period and the question is whether an attempt by the Claimant to seek further extension of time to file the claim should be granted to him.
   
2. Whether the Claimant is entitle to represent the landowners of other portions of customary land within in the area of Pugu customary land.
   

Issue 1

Claim and extension of time

A claim discloses the gist or substance of the Claimants' case, orders sought and importantly to assist the judge to determine with evidence if there is cause of action with this type of application.

For this case there is no claim filed within the period of 14 days as directed by Court but at the hearing of this case, counsel for Claimant seek for the extension the time to file the claim.

Counsel Balea for the Claimant when he sought the extension of time said that now the Claimant has failed to file the claim within the 14 days, rule 7.9 of the Civil Procedure Rule should apply and he asked the Court for the extension of time to file the claim.

The interim order was granted on 11th August 2014 and perfected on 12th August 2014. After the lapsed of 14 days, no application for extension of time to file the claim was made to this Court. Counsel at the hearing of the application uses this opportunity for the purpose, but he did not give any reasons for the delay.

An extension of time to file a claim is not automatic as counsel for the Claimant seem to imply but by an application and leave of the Court. With this matter applicant have not made any attempt to seek extension of time.

I do not think the situation of this case as suggested by the counsel for the Claimant warrant any grant for extension of time to file the claim.

Therefore, leave for extension of time to file the claim is refused.

Issue 2

Legal standing and proof of entitlement in custom

An issue on legal standing of the Claimant is raised on the fact that the ex parte order restrained the Defendants from carrying out logging on the land area of Pugu all (inclusive of Betinialu and Sarisiripa, Binu and Bolilau) customary lands.

Counsel for Defendants submitted that there is no claim filed by the Claimant in Court and the connection or link associating with the land areas in which the ex parte order cover cannot be sorted out or is hard to tell. And the order generally covers Pugu land but the chiefs and Courts had already dealt with Claimant's portion on Pugu land with his land being described as lesser Pugu.

Counsel for Defendants submitted that the Court was misled in the application for interlocutory orders.

The Claimant's interest on the area of Pugu land relates to lesser Pugu land but the current activities are on larger Pugu, Betinialu and Sarisiripa lands.

The Claimant's interest on the area of Pugu land has been sorted out and documents with the Court shows the followings:

• the Boli House of Chiefs decision 1999 which described Claimant Soro's landownership at Pugu land and boundaries as "from the rocky area at Saupou go towards to Naliabulovi going up to Tolunatete",
  
• Ownership and boundaries confirmed by the Ngella Local Court in land case no. 7 of 1999,
  
• the land was described by Kabui J in Pou v Soro HC-CC of 452 of 2004 as Lesser Pugu land.
  
• Claimant Soro referred the Pugu land – Large Pugu land to Boli House of chiefs in 2004 and the chiefs declared the Defendant Pou is the owner of Large Pugu land and further pursued with these actions.
  
• Claimant Soro further referred the dispute Neglla Local Court in land case no. 2 of 2004 but the Court upheld the decision of the Boli House of Chiefs.
  
• He sought the judicial review in HC/CC No. 173 of 2011 to quash the decision of Ngella Local Court but the claim was struck out.
  
• Claimants also appealed to the Central Islands Customary Land Appeal Court but the appeal was dismissed.
  
• Notice of appeal against the Central Islands Customary Land Appeal Court's dismissal was filed given HCC/CC No. 230 of 2013 and since then without any pleadings. It is dormant or in an inactive state due to part of counsel for Claimant. Counsel Balea filed this notice of appeal on his own undertaking or personal capacity when he was with Michael Pitakaka's Legal Firm. He left MP legal firm and abandoned the case and moved to ASG legal firm. When with his new firm he tried to use the case as one of the grounds to continue the interim injunction.
  
• Recently counsel Michael Pitakaka applied to the Court to strike out the case HCC/CC No. 230 of 2013 from his firm's name. The order sought was granted to him or his firm's name has been removed for this case.
  
• From the papers with court, counsel Balea has recently joined up with another legal firm, which would place abandoned case HCC/CC No. 230 of 2013 at worse dormant situation.
  

The later part of the above facts among others reflects the inability of the counsel for the Claimant or caused confusion to himself and his clients. Just filing a notice of appeal with no pleadings as to date precisely reflects that inability on part of the counsel or otherwise just a description of frivolous and vexatious in this case. Counsel for the Claimant's act and behaviours with his client manifestly proves on the balance of probability that the case is frivolous and vexatious. And accordingly I do rule as such.

On the representation, counsel for Claimant in his submission said that his client represents himself and the various landowners within Pugu land and they gave him the right to stand for them or the legal standing.

He relied on the sworn statement of the Claimant filed on 14th October 2014 and a letter to Registrar of High Court with signatures of some people who claim to own portions of land at the Pugu land area. He said that letter duly authorized his client "to act on their behalf relating the various portions of within Pugu"

His argument is also reflected in the heading of the notice he filed for the ex parte application for interim orders and applicant parties, which the Court granted the interim orders.

The first applicant party appears as "Charles Soro (Representing himself and the various Landowners of various portions of the lands within Pugu Land) – 1st Claimants"

With that, the Claimant appears for himself and a claim to represent landowners of other portions of land.

To represent or stand for a group in the dispute on customary land that person must proof that he is entitle to stand for the concerned landowners.

Rule 3.24 of the Solomon Islands (Civil Procedure) Rules 2007 provides:

"A person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing a community, line or group, but the Court, on the application of any party, or on its own initiative, may require that person to provide proof of their entitlement in custom to act as such a representative before any further step in the proceeding may take place".

By this provision, a proof of entitlement in custom would involve prove of being or among the tribal, clan or group landowners with traditional leadership i.e. chief and elder or appointed to represent them in the dispute. Failure to do so, the Court should not allow that person to act for them.

The letter on the 14th October 2014 to the Registrar of High Court with the signatures of individual persons who claim to be landowners is being claim by the claimant as the proof his entitlement in custom to act as such a representative for the landowners within Pugu land. The letter does not provide any proof in custom for the Claimant to represent landowners or other portions of land than offer of support to the Claimant's action.

Rule 3.42 of the Solomon Islands (Civil Procedure) Rules require a proof in custom but in this case, the Claimant has not done so. And I rule that Claimant Mr. Soro cannot represent the landowners of other portions in Pugu land and in this case.

And further, there is no claim that would disclose the cause of action or raises the question fit to be decided by trial and the evidence do not loom any chance of success.

With the facts pleaded, unable to determine cause of action, no issue to be tried and no likelihood that the Claimant would succeed, it is my view that ex parte interim order made on 11th August 2014 should not subsist any more but must go.

I am satisfied with the application and therefore I grant the order to strike out the interim orders made by this Court on 11th August 2014.

ORDERS

1. Leave for extension of time to file the claim is refused.
   
2. The ex parte interim order made on 11th August 2014 and perfected and sealed on 12th August 2014 is struck out.
   
3. The 1st and 2nd Claimants shall pay the costs of the Defendant on standard basis to be taxed if not agreed.
   

THE COURT

Justice Leonard R Maina
Puisne Judge