Lifuasi v Solomon Telekom Company Ltd [2015] SBHC 119; HCSI-CC 302 of 2014 (16 February 2015)

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

Civil Case No. 302 of 2014

BETWEEN:

ELISION LIFUASI
Claimant

AND:

SOLOMON TELEKOM COMPANY LIMITED
Defendant

AND:

ARIEL DAMI ALUMAELANA, MARLON SUILIFI - Applicants
WILSON MIDAU, MICHAEL MAERONGO AND
MIKE SELAGA
(Trustee representing Maru'u Customary Land)

Date of Hearing: 16th February 2015
Date of Ruling: 16th February 2015

L. Puhimana for the Applicant and all the Defendants
L. Ramo for the Claimant/Respondent

RULING

Maina J:

Introduction

The Defendant Solomon Telekom Company Limited with the applicant filed an application for the applicant to be joined as 2nd Defendant in this case. The application is made Rules 3.5 and 3.6 of the Solomon Island Courts Civil Procedure Rules 2007 ("Rules").

Brief Background

The Claimant, Elision Lifuasi ("respondent"), filed a claim against the Defendant of claim for damages for trespass to be assessed and order that Defendant enter into agreement for payment of land rental to the Claimant in respect to the Defendant's telecommunication tower on Biluki portion of Maru'u customary land and such payment to be backdated to October 2009.

The Claimant claim that at all material time Claimant is the owner of the portion Maru'u customary land known as Biluki situation in North Malaita.

The Application

The applicants were party to MOU for the erection of the tower with the First Defendant on the concern portion of customary land and that arrangement and process was affected by the ruling on the appeal at the Magistrate Court.

The Defendant's counsel Mr. Puhimana also acting for the Applicant applied to the Court seeking an order for the applicant to be joined as 2nd Defendant in this case. He made reference to Rules 3.5 and 3.6 of the Civil Procedure Rules as authority for the application.

Rule 3.5 gives powers to the Court to make an order for a person to become a party if the person's presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceedings. And Rule 3.6 provides for a person affected by a proceeding to apply to the Court for an order that he be made a party to the proceedings.

By the requirement of the rules, the Court is to look on matters as whether or not the presence of the applicant as a party is necessary to enable the Court makes a fair and effective decision in the proceedings. And as required by Rule 3.6, whether the applicant is a person affected by the proceedings.

In fact these Rules gives or enables the Courts to deal with cases justly with minimum delay and expense by addressing the real issues in the proceedings and for the interest of justice that case should have as few parties as possible.

So, the question in this application is whether the presence of the applicant as a party is necessary to enable the Court makes a fair and effective decide in the proceedings or, to put it another way or will the court be unable to fairly and effectively decide the issues in this case in the absence of the applicant.

The Issue

The issue is whether the presence of the applicant as a party with the claim relates of land ownership would assist in deciding the claim against the Defendant.

The applicant says it is so as they were party to the MOU with the Defendant but the claim say no as the MOU relates to the acquisition which the Magistrate court quashed on appeal and direction for fresh acquisition. It is noted that to date no fresh application has taken place.

Now if the applicant is joined as a party, will his presence assist the Court to fairly and effectively determine the claim for damages for trespass?

(i) when the claimant's claim relates to issue of land ownership and that issue not yet determined by a fresh acquisition as directed by the Magistrate's court,

(ii) the fact that Claimant's claim against First Defendant is base to the land ownership,

(iii) this Court lack the jurisdiction on matters relates to land ownership which the applicant's basis to be a party;

For the above it may be so or that the applicants will assist to fairly and effectively determine the claim for damages for trespass on the fact that they are party to the MOU that allow the building of the tower on the land and relates to the Claimant's claim in this case. The applicant was also a party to the acquisition which the Magistrate Court had quashed and ordered a fresh acquisition but has not taken place.

The concern of the applicant on matters relates to land ownership that subject to a fresh acquisition as ordered by the Magistrate or otherwise for the chiefs and the local court to determine.

On that basis it is my view the applicant for joinder in the proceedings in this Court will be of assistance in determining the issues in the Claimant's claim and accordingly the joinder order sought is granted to the applicant.

ORDER

1. The applicant is joint as second Defendant in this case.
   
2. That a fresh acquisition is ordered by the Magistrate's Court to be undertaken immediately.
   
3. That pending the fresh acquisition the proceedings on the matters in this case shall be adjourned generally with liberty to apply on 7 days notice.
   
4. Cost in the cause.
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge