Maungasua v Greenhill Company Ltd [2015] SBHC 52; HCSI-CC 282 of 2014 (15 June 2015)

THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 282 of 2014

BETWEEN:

VEXY PAUTANGATA MAUNGASUA
(Representing Honohono tribe)
Claimant

AND:

GREEN HILL COMPANY LIMITED
First Defendant

AND:

JOHN PATUIKA and NICKLY SIBOLO TAUNGAIKA
(Representing the Sigiabagu tribe of Rennel)
Second Defendant

AND:

SAMLIMSAN (SI) LIMITED
Third Defendant

AND:

AMOS CAMPANY LIMITED
Fourth Defendant

AND:

KIEN HU PAU (PAU KIEW HU) NGIE AI PAU,
(PAU NGIE ALI), AMOS TEIKA and REX SOAIKA
Fifth Defendant

Date of Hearing: 13th May 2015
Date of Ruling: 15th June 2015.

Mr N. Laurere for the Claimant
Mr J. Apaniai for the First and Second Defendants

RULING ON APPLICATION TO STRIKE OUT

Faukona PJ: The original claim was filed by the Claimant on 27th August 2014. An amended Claim was filed on 11th December 2014. Reliefs sought remain the same despite the amendments, and they are in terms of permanent injunction, order to account of all logs extracted from honohono customary land and an order for damages for trespass and of course costs.

2 This application was filed by the first and the second Defendants on 16th February 2015 to strike out the claim on the grounds of no locus standi, discloses no reasonable cause of action or is otherwise frivolous and vexatious. Also an order to set aside the ex-parte restraining orders of 11th December 2014 on the ground of no disclosures. And to set aside the amended claim on the ground that leave to amend has not been obtained.

Brief back ground facts:

3. Before any logging operation penetrated Rennell Island there was a local court case held on the 20th September, 1978. The parties were Bezor Tevegi Vs Edriel Teikaige. The local court decision was in favour of Edriel Teikaige. Bezor Tevegi appealed to the Central Islands Customary land Appeal Court (CICLAC) but was dismissed on 7th May 1982. The lands involved in that case were ten (10) including honohono customary lands.

4. On 15th March 2010, the West Rennell Council of Chiefs (WRCC) heard a dispute over hunuta customary land. The parties were James Teikaugua V Timotheus Ngatonga and Sibolo Taungaika. The decision was made on 20th May 2014 according to the Unaccepted Settlement Form annexed as Exh. "PH 1" to Pautaganta's sworn statement filed on 27th August 2014.

5. On 28th May 2014 the Claimant referred the case to the Local Court. He had paid the necessary fees, filed the unaccepted settlement form but had not filed a statement as required by section 12 (3) of Local Court Act.

6. There was a timber rights hearing conducted by Rennel Bellona Provincial Executive (RBPE) on 31st August 2012 in respect of first Defendant's Form 1 application. The concession area concern ten (10) customary lands including sigiabagu customary land. After deliberations the Provincial Executive made its determination on 7th December 2012 identifying twelve (12) grantors and thirteen (13) additional trustees as persons lawfully able and entitled to grant timber rights. Against that determination there were seven appeals to the customary land Appeal court but were all dismissed on 6th November 2013.

7. Eventually felling licence No. A101231 was issued to the first Defendant on 3rd July 2014, covering a concession area that includes ten (10) customary lands namely, sigiabagu, tegagimabogo, nivua, taupii, ogohoou, henu'aso, labagase and teana and tegegemaha'a.

8. It was alleged that on or about 8th May 2014, the Defendants entered honohono customary land and conducted logging activities by construction of access road through bonohono customary land and extracted logs as they progressed.

Land ownership claims:

9. The Claimant says he owns honohono customary land by virtue of the Local Court decision on 20th September 1978 and Customary Land Appeal Court decision on 7th May 1982. The Claimant also states that hutuna customary land is part of honohono customary land. In other words hutuna customary land is within the bigger honohono customary land.

10. It was hutuna customary land that the Chiefs determined its ownership against Mr. James Teikaugua. Mr Teikaugua then referred the case to the Local Court. The current Claimant is the son of Edriel Teikaige who won hunuhunu customary land in 1978 and on appeal in 1982. The Claimant is also directly link to James Teikaugua in geneology who lost hunuta land in the Chiefs hearing on 20th Nay 2014. There is a map Exh. "PH4" attached to Pautangata's sworn statement filed on 27th August 2014 which the Claimant relies on to identify honohono customary land.

11. The Second Defendants claim they were not a party to the Local Court and CLAC in 1978 and 1982 respectively, in respect of honohono land. At the chiefs hearing in 2010 they were represented by Timotheus Ngatogna whose favour the Chiefs determined. The Second Defendants also claim that honohona customary land is a plot of land inside hutuna land and hutuna is a larger plot of land situated inside the main sigiabagu customary land. Therefore honohono and hutuna are part and partial of the said sigiabagu customary land.

12. There are arguments by Counsels as to whether there is a form of action pleaded in respect of hutuna customary land. Counsel for the Defendants submits nothing, however, counsel for the Claimant argues in the affirmative.

13. Quite subtle is the approach by the parties in rebutting one another in this particular issue. Whilst the Claimant is saying one thing the Defendants are saying the opposite.

14. The way the Claimant constructed his case is styled in a fashion that though hunuta customary land is not actually mention specifically in the relief sought, it was stated and pleaded in paragraph (1) and (11) in the statement of case that hunuta customary land is part of honohono customary land, therefore any form of entry into honohono land will also affect hutuna land. Honohono land has gone through a court case, as well as hutuna land before the Chiefs. With map attached (see para 10 above) identification of the land is not a major problem to the Claimant.

15. If I am to apply a balance view that honohono land is within hunuta land and which is part of larger land called sigiabagu land which is under the concession area. It would appear quite reasonable that bigger portion of land outside of honohono which is hunuta, is not bound by, or included under the Court decisions in 1978 and 1982. Therefore there is no legal obstacle thwarting the second Defendants from being litigating in the Council of Chiefs. On the other hand basing on the Claimant's claim there would be questions raised why the case was reopened as hanuta land is within honohono land which had already being covered by a Court decisions. Was it been proved that Timotheus Ngatanga and Sibolo Taungaika are not related to Bezor Tevegi a losing party in two previous court cases, therefore not bound by those decisions?

16. It is crystalline clear that the claim by the parties in regards to the issue of landownership is a serious issue which ought to be determined by a rightful forum, at the right time. Meantime I can confidentially rule that there is pleading in respect of hutuna land; as such there is cause of action to be determined. I am comforted by the map sited above which does give some hint in relation to the claim by the Claimant.

Referral to Local Court:

17. The argument on this issue circles around S.12 (3) of Local Court Act. The subsection specifically refers to the party who lodged a referral in the Local Court "shall" file a written statement setting out the extent to which the decision is made and reasons for not accepting the decision. The written statement is an additional to other requirement stated in the subsection.

18. It would appear that there is no dispute as to the non-filing of the written statement by the Claimants. However, the reason advances by the Counsel is because the decision of the Chiefs was made known to the Claimant after passing of four years and two months. With such delay the decision becomes controversial and questionable and says was formulated in anticipation of the timber rights hearing and that Mr Teikaugua and Mr Ngatonga have personal interests in the outcome of the case which is fraudulent.

19. I noted Mr. Apaniai has persisted that S.12 (3) is expressed in mandatory term and should no written statement is filed will render the referral fatal. I agree that is a correct version of the law. In Veno V Jino[1] the Court of Appeal held that failure to lodge with the Local Court "written statement" is fatal to the referral. Mr Apaniai refers to paragraph 22 of the judgment.

20. My personal opinion after reading of what the Court of Appeal said is that, there was a Chiefs hearing. The decision was in favour of the respondents. Instead the appellants invoked the jurisdiction of the Local Court; the respondents did, and filed a referral and paid the court fee and filed Form 1. There was no written statement filed. In paragraph 20 the Court stated,

"We think it is inexcusable that the respondents had no interest in seeking a decision of the Local Court that would overturn or qualify the decision that they already had in their favour from the Councils of Chiefs.

21. The Court of Appeal was not sure what was intended by the lodgement of the Form 1 and payment of fee. Gather from the judgment of the Court of Appeal, I am of the view that the Respondent's intention was to delay, to block the appellants from filing a referral to invoke the jurisdiction of the Local Court. Should privilege is permitted the appellants would ensure the case is heard in the Local Court as soon as possible. The Court also noted that the respondents had not intended to undertake a proceeding in the Local Court is made clear by their failure to comply with sub. Section 12 (3).

22. The Court of Appeal also noted in paragraph 16 that the Local court Act does not provide for commencement of proceeding, in order to reduce formalities and permit its function to be invoked by persons who need its assistance to indicate their rights but who may completely unfamiliar with Court proceedings and might baffle or frustrated by bureaucratic proceedings.

23. This raises a very significant question, how many ordinary Solomon Islands out there in the communities know the court proceedings, able to read, and able to write a written statement as required in S.12 (3) of the Local Court Act. I feel that our lowly educated people and illiterate citizens should not be allowed to suffer legal consequence of who they are in their education background. We cannot change them. Most, if not 100% of the Chiefs hearings are conducted in rural communities and involved people in the rural areas who may have no slightest knowledge of the Local Court Act and where to be located. The first and perhaps the person expected to convey first hand advice is the Local Court Clerk. Did he ever give any advice to the person filling this reference case that he needed to file a written statement in the quality required under the Act? There is no evidence available or even to suggest proper advice is given.

24. This brings us to another point in respect to service of the referral documents. Practically the procedure in the Local Court is not the same as in the High Court. Normally it is an obligation after filing of the referral documents the Local Court Clerk must acknowledge receipt; at the same time inform the other party on the referral for his information. It is not the case equated with the High Court proceeding, that the person filing the referral to serve the documents on the other party, it is the task left for the Local Court Clerk.

25. On another term, the Local Court Act does not provided for time bar or time limit to file the documents under S. 12 (2) and (3) of the act. All we can familiar with is that the referral must be filed within reasonable time. The Chiefs' decision (according to Form 1 filed by the Claimant) was dated 20th May 2014 and the referral was filed on 28th May 2014, eight days after. The Claimant's party quick response shows their intention to invoke the jurisdiction of the Local Court. They did not sit on their rights but mean business is business. To rule against the Claimant on this ground is a grave injustice.

26. Whilst on the issue of the appropriate Form 1 to be filed, I noted there are two Form 1's which exhibited by the parties. Form 1 (Exh GS 10) relied on by the second Defendants is not a replication of the original Form 1 normally used in Local Courts. The structure is different and appears as an orchestrated one. The date supposed to be entered in the proper form is a date the Chiefs delivered their decision and not the date of hearing as appeared in the Form 1 the Defendants rely on.

27. The Form 1 relies on by the Claimant appears to be in Form LC Civil 3 that is normally used for referring a case to the Local Court by an aggrieved party. The date in the form is 20/5/2014 which is probably the date of the decision. There was a stamp and a common seal of the Chiefs attached to it.

28. In any event both forms have problems. They were filled up by the parties themselves, a task which should have been done by the panel of Chiefs who heard the dispute and then signed. In this case both forms were signed by the chiefs. In that instance, it would appear the Chiefs can sign anything that presented to them; whether it's genuine and authentic or not? I am of the view that the Chiefs could have done better in the task assigned to them.

29. From the forms I could able to verify that the decision was delayed for four years and two months before the Claimant and party actually received a copy. I think that is grave delay, in ordinate and unreasonable delay. Such delay is susceptible and open to criticism, suspicion and unacceptable in all form and standard. By delaying delivery of the decision to the concern party, deprived that party of his rights to know the decision as soon as possible. Justice delay is justice denied.

The principle of res-judicata and privity

30. It has never been the case of the Claimant to lodge an argument premise on the principle of res-judicata and privity. There is nothing sought in the relief and nothing in the asserted facts in support. It appears the Claimant is not concern about this issue. That can be impliedly perceived from the fact that a portion of the land hunuta being within honohono land was permitted and was heard and determined by the Council of Chiefs.

31. Taken from the perspective of the second Defendants, according to their claim, hunuta land is a bigger portion outside of honohono land which is free and can be subject to litigation. That eventually was heard and determined by the Council of Chiefs. I do not seem to see this issue is a real issue for litigation and must be abandoned accordingly.

32. From those reasons Mr Apaniai has submitted and called on this Court to determine dismissing the claim. I think to do that now would give injustice to the case. It is better to consider the whole entire arguments in its entirety, in respect to pleadings and facts before determining a rightful conclusion.

Whether Honohono and Hutuna customary lands are part of the concession area.

33. I have discussed the claims by the parties which appear to be contrary to each other. It is not new, however, it is expected. Almost in practical senses parties advance their claims and activities premise on their claim of right to customary land. It is difficult to divert the other because they would rather firm on their claims.

34. In this case the second Defendants say sigiabagu is an overall land that covers both honohono and hutunal. Sigiabagu customary land is part of the concession which was indicated in the application and determination. The Claimant denies it and says they have a map of honohono "Exh PH4" which shows the boundaries of the land, and perhaps the same land which had gone through judicial litigation in 1978 and 1982. And both honohono or hunuta lands were not mentioned in the application and in the determination by Provincial Executive.

35. The problem encountered by the timber rights processes is that the yellow map as identified in the file or red as referred to by the Provincial Executive has no boundaries and identification of the concession area. There were no boundaries of any land drawn according to eleven customary lands stated in the determination or nine (9) lands as in the Felling Licence No. A101231, two were missing. In any case there was no specific implication or drawn boundaries of each land in the concession area and map. Therefore by identifying and determining twelve (12) grantors and thirteen (13) additional trustees, which particular land they have rights and eligible to grant timber rights. The Executive determination should specifically verify that a particular grantor or grantors have rights to grant timber in one particular customary land out of the eleven or nine customary lands which are being part of the concession area. There appears nothing of that sort was done.

36. It would appear (as I read the minutes of the Provincial Executive) that a blank determination with unidentified customary lands with some concession allowing other landowners to identify their lands later and brought to the consent of the licensee. In my view is incorrect. It would have been better to include how many pockets of land within the whole concession, identify each with boundaries, and then identify landowners who own those pockets of lands and have their names as persons entitled to grant timber rights in the whole block of land. If one person is identified for one whole customary land, then how fairly would he manage the affairs and proceeds which others are entitled to and not him solely.

37. If Gad Saomuku was identified to grant timber rights over sigiabagu which comprised of honohono, hunata and may be others, did he ever realised that honohono had been to Count before. It is not a question of privity that he was not bound by the previous decision, so that he could commence another Court proceeding, but he cannot bulldoze his way into someone's land who had won in the Court. Even on the land that there was a reference case been filed. The dispute over landownership had yet to be settled and heard by the rightful forum. There ought to be some kind of consciousness and respect and do the right thing. It is not an issue this Court ought to decide now whether honohono or hunuta is within the concession area. That question involves location of the land, and boundaries of those lands. It is a question to be decided by the rightful forum, before one can able to know whether those two lands were in the concession area or not. This leads us to the next sub-heading amended claim.

Amended claim:

89. There was a joint application for joinder and variation of the interim injunctive relief. The application was filed on 2nd December 2014, roughly more than two months after the first injunctive orders were granted. The application was to join the third to fifth Defendants as parties in this case. The crux of the application for variation was merely to include new Defendants and be obliged like the original ones in terms of Orders 3 and 4. That is variation to the injunctive orders. Then of course the claim ought to be amended to include new parties as joinders. That can only be done by R 3.4 and R3.5. The fact is that the Defendants had been served with the original orders on 11th September 2014. Having being served, their presence is necessary as a party, to enable the Court make a fair and effective decision in the proceeding.

39. In this case there was no leave applied for and no leave granted. The Claimant was being swallowed up by the idea that once variation orders were made by adding new Defendants, it would affect the claim automatically. I do not think that is the case here. A proper application for joinder has to be filed and prosecuted fairly. Therefore an automatic amendment to the claim cannot be done from grant of variation orders, which is a variation to the injunctive orders only. A claim upholds the substantive issues in which to amend it leave must be granted.

Contempt proceedings:

40. On the issue of contempt proceedings, there is no need to go round the bend. The injunctive orders were obtained prior to the application for contempt. The Court was made aware of it at the hearing of the application for variation and joinder. It would appear the application was filed after the first original injunctive orders were breached. I do not seem to concede with the assertion that it was one of the grounds which the Court had relied on to grant injunctive orders that cannot be the case.

Summary:

41. From what I have elaborated in this ruling, I find there is cause of action in respect of hunuta customary land which the Court must hear at trial. Apart from that, there is also the issue of trespass. In the recent case of Norman V Mugaba Atoll[2], the Court of Appeal stated that the issue of trespass is sufficient to ground injunction orders. In this case trespass is almost inevitable, a strong allegation, because part of land upon which trespass was alleged had already been decided by the formal Court.

42. As far as hunuta customary land is concerned, a referral had been filed in appropriate Local Court. This Court must exercise its jurisdiction to maintain the status quo, by allowing the Local Court to proceed and determine the issue of landownership which is currently before it.

43. The most appropriate decision, is to maintain the injunctive orders, but must set aside the amended claim for reason of being flawed for not complying with the rules to sought leave at first instance before any amendment can be done, most necessarily an application for joinder.

Orders:

1. Refuse to strike out the claim.

2. The interim injunctive orders of 11th September 2014 will continue reinforce.

3. The amended claim is set aside with the liberty to reinstate on notice of ten days.

4. The Claimant must file a proper application for joinder within ten days.

5. Cost in the cause.

The Court.

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^[1] [2006] SBCA 22; CA-CAC of 2004 (12 April 2006)
^[2] (2015) SICA-CAC NO.02 of 2015 (24 April 2015).