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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
FAUKONA J:
CC: NO. 423 OF 2014
BETWEEN:
SILAS MILIKADA
First Claimant
(Representing the landowners of Porepore, Hirihove and Matiu Islands)
AND:
JP ENTERPRISES LIMITED
Second Claimant
AND:
OCEANIA TRADING COMPANY
Third Claimant
AND:
SNYDER RINI
Defendant
Date of Hearing: 29th May 2015
Date of Judgment: 13th August 2015.
Mr J. Apaniai for the Claimants
Mr C. Hapa for the Defendant
RULING ON APPLICATION FOR SUMMARY JUDGMENT
FAUKONA PJ: This is an application purposely to achieve Summary Judgment pursuant to Rules 2.8, 2.9 and 7.5, and was filed by the Claimants on 1st April, 2015. The application arose out of a claim in Category C filed by the Claimants on 15th January, 2015.
2. The application seeks six remedies. The first is that the amended application filed on 2n January 2015 be vacated. The rest are two declaratory orders and two consequential orders, and of course, costs.
Background Facts
3. There is a dispute between the first Claimant and the Defendant over the ownership of porepore and hirihove islands commenced way back in 1993. It started after the Commissioner of Forests issued a Milling Licence No. TIM 3/159 to the First Claimant with a permit to export round logs.
4. About July 1994, the First Claimant commenced felling and extraction of logs on porepore island. The Defendant responded by filing a Civil Case No. 247 of 1994.
5. Whilst the case was still pending, the First Claimant went through the timber rights processes and obtained determination in his favour on 26th September 1995. The Defendant then appealed to the Western Customary Land Appeal Court (WCLAC) on 25th October, 1995. Since then, the WCLAC is yet to hear the appeal until now of which 19 years had already passed.
6. The dispute over customary ownership of porepore and hirihove islands was referred to the Marovo Council of Chiefs. The determination was in favour of the First Claimant. The Defendant as an aggrieved party referred the case to Marovo Local Court 1996. Since then, the Local Court has not heard the referral case for the last 18 or so years.
The Claimants' Case
7. The Claimants' case is a persuasion to invoke the inherent power of the Court to declare the referral filed by the Claimant on 18th June 1996 against the decision by the Marovo Chiefs dated 26th March 1996 as null and void and of no effect due to lapse of time and delay in prosecuting the referral, and the failure by the Claimant to diligently pursuing the referral. The same call and reasons are relied on in regards to the appeal filed by the Defendant on 25th October 1995 to (WCLAC) against the Marovo Area Council determination on 25th September 1995 which awarded the timber rights over porepore and hirihove islands to the first Claimant, is null and void due to lapse of time and delay in prosecuting the appeal, and failure to diligently pursue the appeal.
8. In consequent to paragraph 9, the court hereby grant orders sought in paragraphs A, B, C and D of the Claim.
The Defendant's Case
9. The Defendant's case basically focussed on the issue of customary land dispute, an issue fall outside of the High Court jurisdiction. Its jurisdiction is limited to aiding lower courts in dealing with matters of custom before them.
10. The Defendant denies solely responsible for the delay. He points out that the warrant establishing the Marovo Local Court came into force on 1st July, 1986. Later, it was cancelled in 2008 and substituted with warrant establishing New Georgia Local Court, thereby extending the jurisdiction of New Georgia Local Court to cover Marovo area. Since 1986, the Marovo Local Court did not conduct any sitting at all. He also relies on frequent checking the Magistrate's Office in Gizo whenever he arrived there. He also checked by inquiring through letter. Ultimately, denied the timber rights processes as invalid and the Felling licence issued is also invalid.
Contingent Issues
11. The Defendant relies on the issue of warrant establishing the Marovo Local Court, which was revoked and substituted with a warrant establishing the New Georgia Local Court as an excuse for contributory delay. That has no merit at all and I must refuse to acknowledge. To capitalise on that as an excuse for failing to prosecute the case is a misconception of the truth.
12. In any event, should there be changes occurred, does not mean Marovo Area in the Western Province was without a Local Court, even at one moment. The truth of the matter is that the Marovo Local Court is always at function and generally administered by the Resident Magistrate based in Gizo. The reason for being the contributing cause for inaction and delay cannot be accepted.
13. It appears the Claimant is capitalising on this point to extend determination to include defence and counter claim and grant of default or Summary judgment against the Defendants. The declaratory and consequential orders sought as reliefs, appears as preliminary matters. Should the Claimants are successful; the Defendant's case should be flawed instantly. Therefore, there is no need to grant any default or summary judgment, suffice to say, striking out the defence is sufficient and proper course of relief to seek. Despite attempt to shoot two birds with one stone, I see relevant to confine to the substance of the application. In any event, I will briefly touch on the timber rights process later.
Jurisdiction of the High Court
14. The Counsel advocate for the Defendant submits that the declarations sought to invoke the jurisdiction of the High Court premised on the issue of custom, which the High Court lacks jurisdiction to entertain. In order to uphold that view as valid and righteous, the Counsel refers to multiple authorities to substantiate his allusions. Finally concluded that the High Court does not have "unlimited original jurisdiction" as stipulated in Section 77(1) of the Constitution.
15. The paradigm which forms the basis of that argument is acknowledged that the High Court has aiding jurisdiction in matters connected to ownership of customary land. Likewise, it is clear, the jurisdictional empowerment is purposely to aid the lower courts which have jurisdiction to deal with such issues which the High Court lacks jurisdiction. However, I doubt, as a matter of generality, that High Court has jurisdiction labelled by the Counsel as unlimited original jurisdiction. Section 77 (1) of the Constitution does not contain the word "original" added to unlimited jurisdiction. It only advocates unlimited jurisdiction.
16. In any event, the grounds upon which the Claimants grounded their application were based on delay and inaction. The question is, are those issues falling outside of the High Court jurisdiction? Can it be said that the issue of delay and inaction are issues which can be best left for the Local and Customary Land Appeal Courts to hear and determine. I do not think the Local Court and the Customary Land Appeal Court have jurisdiction to deal with the issues of delay and inaction. At the same time, I do not think that the Claimants' application grounded on the jurisdictional framework alluded by Law. I appreciate Mr Hapa's submissions which went on length supported by authority reflect on the High Court jurisdiction in aiding the lower courts determining the customary issue. In assisting the lower courts, the common jurisdiction is grant of interlocutory orders in terms of injunctions. No such relief was sought in this application. Nonetheless, I noted there is relief sought for consequential order to permanently injunct the Defendant thereby reinforcing relief C in the claim.
17. Apparently, the bulk of Mr Hapa's submissions focussed on the aiding jurisdiction of the High Court. Perceivably that is absolutely outside of the gist of the Claimants' application. The High Court has unlimited jurisdiction and inherent power to grant any relief, remedy any mischief, and grant any normative judgments.
18. A starting point to deal with the issue of delay and inaction is reference to Rule 1.3, which stipulates that the over-riding objective of these Rules is to enable the Courts to deal with the case justly with minimum delay and expense. These rules are very important; they offer guidelines to a practical sense so that the Court will deal with all civil matters expeditiously, without any party being prejudiced from the management and conduct of the case
19. Rule 9.71, the Court may strike out a proceeding if the Claimant does not take steps in a proceeding that are required by these rules to ensure the proceeding continues. Rule 9.72 (d) the Court may strike out a proceeding without notice, if there has been no step taken in the proceedings for 12 months. Which Court does the Rule refer to? No doubt it is the High Court. From the authority of the Rules, the High Court has jurisdiction to strike out proceeding in these circumstances.
20. In this case, the appeal filed by the Defendant in the WCLAC against Area Council determination is still pending for the last 19 years and 10 months and the referral case which the Defendant referred to the Local Court against the Marovo Chiefs determination is still pending for the last 18 years. Are those facts reveal normality in any Court processes, I doubt. The delay and inaction is abnormal, extra-ordinary and inordinate in all logical thinking.
21. I do not accept the Defendant's checking by letter on 17th April, 2012, the first ever after filing the two cases. That was more than a decade after the Appeal and Referral had been lodged. The second check was on 10th March, 2015 after the Claimant had filed this case. It is an absolute unacceptable approach and attitude. Both cases had been pending for long enough. The Rules have stated the guidelines to abide with.
22. Time lapse shows the Defendant is not serious in pursuing his Referral and Appeal. After filing those cases then sat back without attempting to push for a hearing date, is an abuse of process. In the case of Goldsmith –v- Sperrings[1], Lord Denning define abuse of Court process as follows:
"In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or exert pressure so as to achieve an improper end.......Sometimes abuse can be shown by the very steps being taken in the Courts. At other times, the abuse can only be shown by extrinsic evidence that the legal process is being used for an improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used. If it is done for the purpose of exerting pressure so as to achieve an end which is improper in itself, then it is wrong known to the Law. It had abused because it had been taken "to effect an object not within the scope of the process.........the process was enforced for an ulterior purpose".
23. Indeed the Defendant had capitalised on the cases to frustrate the operations of the Claimants. That is a clear show of the process being abused. The same reason was raised in CC: 427/94 in 2012. The Registrar found that was so and struck out the case. In this case, the length of delay and inaction is clearly an abuse of process used to achieve an end which is improper in itself and which is a wrong condemned by law. Therefore the referral and appeal ought to be struck out.
Challenge to timber rights process
24. The challenge to timber rights process whether it is valid or not is an issue raised in the defence and counter claim. To consider defence and counter-claim in this application meaning the claim must be taken on board in order to fairly analyse the evidence. To consider the evidence would mean making a determination on the substance of the Claim. I am supposed to make a decision confine to the application alone that has not been the case; I was dragged to consider the substance matter. In any event, I will briefly touch on timber rights agreement.
25. The argument circles around the allegation that there was no timber rights hearing therefore render the timber rights agreement void, hence fatal to the licence.
26. There is material evidence that establish there was a timber rights hearing conducted on 26th February, 2014 and a determination in Form 2 was endorsed on 28th February 2014, See Exh. MS7 attached to first Claimant's sworn statement deposed on 9th December, 2014. A certificate of No Appeal was certified by the Resident Magistrate, Western, on 1st April, 2014, See Exh. MS9 of the same sworn statement. That simply implicate the Defendant had not filed any Appeal to the Western Customary Land Appeal Court against that determination.
27. After the determination by the Provincial Executive and Certificate of No Appeal was filed, there was a timber rights agreement executed by the Second Claimant and the Customary Landowners. The Defendant was not a party to that timber rights agreement therefore has no standing (locus standi) to challenge the validity of the timber rights agreement. He is a stranger. The persons who are entitled to raise issues regarding any alleged breach are the parties to the agreement. The essence of the doctrine of privity of contract is the idea that only those who are parties to the contract have rights under it; to enforce or sue or be sued. It boils down to a fundamental fact that the Defendant is not a party to the agreement therefore cannot challenge the timber rights processes and timber rights agreement, he is a stranger.
28. In all the circumstances which I have considered in this case, it is wise, logic and prudent to grant the relief sought in the application with costs.
ORDERS:
Order declaring that the referral filed by the Defendant in the Local Court on 18th June 1996 against the decision of Marovo Council of Chiefs dated 26th March 1996, be struck out and treated as null and void and is of no effect due to lapse of time and delay in prosecuting the Referral and/or failure to diligently pursue the referral.
THE COURT
[1] (1977) 1 /WLR 478
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