Ialaua v Ruba [2016] SBHC 208; HCSI-CC 174 of 2014 (23 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

FREDDIE IALAUA, CHARLES AUMANU, PAUL BOBBY FARUFIA AND LEDLEY OFATA
1^st Claimant

ANDREW AKOMANA
2^nd Claimant

AND:

CHANIEL RUBA

Defendant

Mr. D. Marahare for claimant
Mr. L. Kwana for defendant

Date of Hearing: 18 October 2016
Date of Judgment: 23 November 2016

Application to strike out Claim for damages for trespass and ancillary claim for Permanent injunction

Brown J:

Reasons for decision

Once again this case follows an ex parte injunctive order given on the 23 June 2014 restraining the defendant, Chaniel Ruba from entering or felling trees on Onebala land [except Busuana’ama/Sinafolo customary land as defined in the Malaita CLAC decision CC 59/80]. As well, proceeds of logs felled were to be sold and proceeds paid into a solicitors trust account until trial or further order, and the defendant was to remove his Machinery from Onebala Customary land.

The ex parte order has continued in effect until today, although it was not until 11 March 2015, that a Claim (Category A) was filed, seeking “damages for trespass to land against the defendant”, and as well, a permanent injunction. I have read the written submissions, both of DNS & Partners, for the claimants and Honiara Attorneys-at-law, for the defendant and have addressed the arguments raised.

By statement of case in support of the claim the 2^nd claimant asserts ownership over Onebala customary land on the basis of a Council of Chiefs decision given on 3 December 2008.

The 1^st claimant “include a good number of persons from Kwaisuliniu community (who) has purchased small blocks of land from the 2^nd claimant. Those blocks of land are outside of the Busuana’ama/Sinafolo customary land now owned by Mr. Rongosulia, a member of the Kwaisuliniu community”.

The Statement of case then purports to explain the defendants’ mistaken claim to Busuana’ama/Sinafolo land (and mistaken reliance on the Malaita CLAC decision in 1981) since the defendant’s father, namely Francis Gwalogwau had sold the land to the Kwaisuliniu community soon after the CLAC decision in 1981.

Whether the purported explanation is in fact true or whether it justifies the imposition of the ex parte injunction and further consideration of the Claim is a matter for determination on the evidence before the Court.

For the defendant, by statement filed 15 July 2016, says that Onebala customary land never existed. Only Busuana’ama Anotafa Sinafolo land. The issue about Onebala customary land may be determined by looking at the material on which the 2^nd claimant relies in his statement filed 6 June 2014.
By decision given on the 3 December 2008, on Mr. Andrew Akomana’s complaint naming Channiel Kwalagau defendant, before the Council of Chiefs, the Record shows the argument to be disputation over boundaries, for as recounted by the defendant, the boundary claimed “passes right through Anotafa customary land”.
The judgment or decision by the Chiefs, made plain that the boundary claimed by Andrew Akomana remained customary boundaries. To quote from the decision, the penultimate paragraph:-
“Any registered plot, any previous legal court decision or order, any sales of land either customary or legally shall not be affected or removed by this settlement”
So there is no presumption about ownership, rather the chiefs were concerned with “Customary boundaries” and boundaries inclusive of primary or secondary rights [usufructary, or rights of occupation or gardening] of customary ownership.
On the 20 August 1981, following an appeal from the finding of the Local Court (given on the 26 September 1980) that:-
“Francis is the owner of Busuanaama Sinafolo tribal. Martin Fiolo must enjoy using the land but with Francis Kwalagwau’s direction since he is interested in the land only because he has been cultivating the land together with Francis line. All parcel of lands given before this case and the properties inside them must be returned the properties of those concerned. But that new projects must be done slowly by seeking permission from Francis Kwalagwau the genuine men of Busuanaama Anotafa Sinafolo land.” the CLAC on the 20 August 1981 dismissed an appeal by Gabriel Kelomae and his line.

The CLAC decreed:-
“Appeal dismissed. The Respondent Francis Kwalagwan and his line have the better right of ownership to the Busuana’ama/Sinofolo land, as shown by Exhibit “B”. The appellant Gabriel Kelomae and his line may continue to use their existing properties and projects in the land, but may not carry out any replanting or extensions without the permission of the respondent.”

By exhibit “A” to that decree, a map showed the land affected by Rongosulia’s coconut plantation and cattle Project, to be Anotafa Land.

Francis Gwalogwau (Kwalagwan) was the defendant’s father, (now deceased) by admission of the 2^nd claimant, in paragraph 6 of his original statement in support filed on the 6 June 2014. In that statement, at paragraph’s 1 & 2, he claims ownership of Onebala land by virtue of the Council of Chiefs finding of the 3 December 2008.

As I have shown, the Chief’s made no such finding on ownership, rather preferring to base their findings on “Customary boundaries” which are referable to primary and secondary [or usufructary] interests in land.

Those interests are dealt with in the earlier decision of the Chiefs, up-held on appeal on the 20 August 1981. While that appeal was by Gabriel Kelomae, it did determine ownership, for Francis Kwalagwau was found to have the better right of ownership. Certainly there was claim by Andrew Akomana by his father at that time before the Chiefs, in terms of Andrew Akomana’s later claim that “on the 20 August 1981, the CLAC granted ownership of small parcel on Onebala customary land known as Busuana’ama/Sinafolo parcel to Francis Kwalogau”. In fact, his father Martin Fiolo (who claimed) was the losing party. Such assertion wholly mistakes the decision for no mention of the Onebala tribe owning Busuana’ama/Sinafolo land is recorded in the CLAC decision nor the Chief’s decision preceding it.

I find that the 2^nd claimant’s assertion to ownership to be without basis in fact and designed to obfuscate the real effect of the decisions and mislead the Court when it was concerned with the application for the ex parte injunction. Any application of that nature need be made with full and frank disclosure and not in terms which misapprehend the facts. Any interest of the 1^st claimants flow from that of the 2^nd claimant and have no basis in law or fact reliant upon customary law, sufficient to ouster the primary ownership interest of the defendant. The 1^st claimants consequently have no standing to bring these proceedings.

The issue raised by the application to dismiss was the right to represent claimed by the 2^nd claimant, and to institute these proceedings “on behalf of the Onebala tribe.”
Representative right in these circumstances must arise through accepted customary means, whether universal decision of tribal members, appointment by the Chief or clan leader or in a way apparent and binding on the tribe. Such is not apparent in these proceedings, for his alleged authority is denied absolutely by the Onebala Tribal Trust Board (Incorporated). That evidence is to be seen from the letter by the Board to Global Lawyers dated 8 July 2014. It is interesting that copies were sent to the Registrar of this Court, the defendant and to the CID-Police.
There is no evidence sufficient to refute this denial of authority.

There is consequently evidence to refute the presumption by the 2^nd claimant that he had authority to institute these proceedings, and in accordance with R.3.42 further proceedings should be stayed.

There is, however, evidence to show no reasonable cause of action for damages for trespass exists. The reasons, above, support the assertion the proceedings should be dismissed for no reasonable cause of action is disclosed, the 2^nd claimant’s rights are subject to those of the defendants.

The proceedings are accordingly dismissed pursuant to R.9.75 (b)&(c). The undertaking as to damages is still extant. I will hear argument on the quantum, if any, sought.

The 1^st and 2^nd claimants shall pay the defendants costs.
The ex parte injunctive orders are discharged.
Any moneys held in the solicitors trust accounts shall be accounted for to the defendant.

__________________
BROWN J

(DNS & Partners) Lawyers for First claimant
(DNS & Partners) Lawyers for Second claimant

And

(Honiara Attorneys-at-Law) Lawyers for Defendant