Rizzu v Fiau [2016] SBHC 34; HCSI-CC 322 of 2014 (3 March 2016)

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

Civil Case No. 322 of 2014

BETWEEN:

JAMES RIZZU
Claimant

AND:

JIMSON FIAU
First Defendant

AND:

WILSON EVO, STEPHEN JIMMY,
BENJAMIN RENCE, JOSEPH BROW,
HOLT DANI, STANLEY LULI, HENLY KABOLO,
RENCE ITA AND LUTE SELO
Second Defendant

AND:

OMEX HOLDINGS LIMITED
Third Defendant

Date of Hearing: 3rd March 2016
Date of Ruling: 3rdMarch 2016

Mr. Iroga for the Claimant
Mr. D. Marahare for the Defendants

RULING ON APPLICATION TO STRIKE OUT THE CLAIMS AND
INTERIM ORDERS

Maina J:

Introduction

The Defendant filed an application to strike out the Category C claims filed by the Claimant on 10th November 2014 and the interim orders issued on 13th October 2014. The grounds of the application are that the claim by the Claimant is frivolous and vexatious proceedings and an abuse of the process of the Court.

Brief Background

This case relates to a registered land in Perpetual Estate in Parcel 098-0021 on Kolombangara Island Western Province. The land was formerly or originally a customary land and then converted to or was registered as Perpetual Estate Parcel 098-002-1 (Lot 2 of LR 589).

The First Defendant Jimson Fiau is currently the registered owner of Perpetual Estate Parcel 098-002-1.

The Claimant on the 10th November 2014 filed a claim and seeks the following orders:

1. Permanent injunction restraining the first, second and third Defendants by themselves, their servants, agents and others from entering the land in Perpetual Estate in Parcel 098-002-1 (Lot) for the purpose of carrying out logging operation and related activities thereon.
   
2. And order that the first Defendants provide to the Claimant by sworn statement, full account for all the proceeds of logs extracted from the land in Perpetual Estate in Parcel 098-002-1 (Lot 2) since 2011 to date.
   
3. And order that the First Defendant be removed as trustee of Parcel 098-002-1 (Lot 2) and be replaced by three representatives of the three sub tribes to be appointed by the three sub tribal members.
   

Before filing the claim, the Claimant by an ex parte application on 13th October 2014 obtained against the Defendants the interlocutory orders that restraining the first, second and third Defendants by themselves, their servants, agents and others from entering the land in Perpetual Estate in Parcel 098-002-1 (Lot 2 of LR 589) for the purpose of carrying out logging operation and related activities thereon until further orders.

Also an order that the first, second and third Defendants to full account for all the proceeds of logs extracted from the land in Perpetual Estate in Parcel 098-002-1 (Lot 2 of LR 589) and sold to be deposited in the High Court Account.

It is noted that the interim order requires the Claimant to file the claim within 14 days from the date of ex parte orders on 13th October 2014, but the claim was filed on 10th November 2014.

The Claimant says the registered land in Perpetual Estate in Parcel 098-002-1 (Lot 2 of LR 589) is owned by sub tribes of Kolombangara tribe. And notably from the claim, the concern or the disagreement by the Claimant is the sharing of the benefits i.e. royalties derived from logging activities.

For the claim the Defendants said the Claimant has no standing and takes up this matter on his personal capacity as is not authorised by the members of the sub tribe which he claim to represent.

Issues

There are two issues in this application:

1. Whether the Claimant has standing to take up this case.
   
2. Whether a claim relates to the sharing or money derived from or relates to registered land be right in law to remove as trustee of Parcel 098-002-1 (lot 2).
   

Issue 1

The First Defendants is notably registered and holds the title of the Parcel 098-002-1 (Lot 2) and for sub tribes of Kolombangara tribe. For the purpose or to take this matter further the issue of locus standi or standing is a critical matter that the Claimant must establish before this Court. Claimant must establish the standing or he is authorised by the sub tribe he claim to represent in this case.

There are features or matters with the former or originally customary land that being converted to or registered lands that there are aspects of it that are still regulated or controlled by custom practices. When it is registered land and subject to written law i.e, Lands and Titles Act that aspect of custom of owning do exist at all times despite being a registered land. And this Court if it relate to that or custom, lack the jurisdiction to deal with the custom issues.

For the parties it is important to distinguish or tell between the written laws and custom in the type as this case's situation. Although a land is registered there are matters or issues as ownership, representation and others that require proof by custom or determination before taking up a case that was converted to registered land. If a dispute on that do exist, a system is created to deal with that aspect of custom issues or matters on former customary land that is now registered under the Lands and Titles Act (Cap 133) otherwise this Court deals with only issues on points of law.

The Claimant by his sworn statement filed on 2nd October 2014 at para 3 and 4 that he represents Kolombangara tribe for which his Vile sub tribe,

First Defendant and Second Defendant's Vinia sub tribe is also a member of; and the First Defendant is the trustee of the sub tribes from Kolombangara tribe. It is on this basis or the Claimant uses as standing to bring this claim and seeks the orders of the Court.

The Defendant said that the Claimant lack the standing to represent Kolombangara tribe or Vile sub tribe. He is bringing up this case on his personal capacity as there is no evidence to show that the Vile sub tribe has given to him any authority to represent them beside what he himself said in his sworn in statement of 2nd October 2014.

It is interesting to note or evidence that Claimant, James Rizzu in another sworn statement for the case HC/CC No. 156 of 2013 which was filed on 24th May 2013 stated that he is from and member of Suvanga tribe of Kolombangara Island. This sworn statement of Claimant is exhibited in the sworn statement of Donaldson Saepio for the Defendant and field on 25th February 2015.

As noted earlier there is a boundary or line that needs to be realised in the land that involves and its history can be traced back from customarily owned to conversion or registered land under Lands and Titles Act (Cap 133). The line may assist or help out to define where custom and written law plays to determine matters or issue on former customary land with tribal nature no being or registered land. The matters of tribally owned and entitlement to represent would be regulated by custom.

And the starting point or guidance is Rule 3.42 of the Civil Procedure Rules 2007 which states:

3.42 Any 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 the 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",

Rule 3.42 of the Civil Procedure Rules requires the Court to ensure that those who are entitled in custom to represent a community, tribe, line or group have authority from the owners of the land.

This requirement is for Claimant in this case to provide a proof of his entitlement in custom to act as such a representative.

It is not disputed that registered land (Perpetual Estate in Parcel 098-002-1 (Lot 2), is tribally owned by the Vile and Vinia sub tribes.

Now to the entitlement in custom to act as such a representative of his group, Claimant James Rizzu in his sworn statement filed on 2nd October 2014, stated that he act as a representative of Kolombangara tribe for which his Vile sub tribe. However, in another case HC/CC No. 156 of 2013 Claimant James Rizzu made a sworn statement and filed on 24th of May 2013, which he stated that he is member of Suvanga tribe of Kolombangara Island.

The statements were all made by Claimant James Rizzu and are contradicting each other and that they were made by him.

It may be an offence on his part as the two sworn statements are contradicting each other but that so much raises doubt on which tribe the Claimant belongs to. There is also no evidence to indicate from the tribe members which he claims to represent or to take up this case on their behalf.

That has raise doubt to me and so I am not satisfy that Claimant James Rizzu has standing to represent the Vile sub tribe of Kolombangara tribe.

Issue 2

Whether a claim relates to the sharing or money derived from or relates to registered land be right in law to remove as trustee of Parcel 098-002-1 (Lot 2).

From the claim and documents filed in Court, the issue to remove the trustee relates the sharing of the royalty or money derived from logging activities. It is on that reason the Claimant seeks order for rectification of the trustee.

On the pleadings and document filed in Court, nothing of fraud or mistake seems to surface or allege except that he ask the Court to remove on issues or matter relates to the sharing of the royalty or money derived from logging activities.

For this issue the law is straight forward with rectification under Section 229 of the Lands and Titles Act. The High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

There is no basis to seek removal of trustee and as such it is an abuse of the process of the Court.

ORDER

1. The claim filed by the Claimant on 10th November 2014 is strike out.
   
2. An interim order obtained against the Defendant on 13th October 2014 is discharge forthwith.
   
3. Leave is granted for the First to Third Defendants to seek compensation against the Claimant for adverse effect cause as a result of the interim order granted in the proceeding on the basis of the undertaking as to damages filed on behalf of the Claimant on 2nd October 2014.
   
4. Cost of this application including the entire proceeding assessed on indemnity basis to the Defendants.
   
5. No further orders.
   

THE COURT

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