Sekani v Pegoa [2017] SBHC 141; HCSI-CC 209 of 2014 (26 April 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 209 of 2014

BETWEEN: POLYCARP SEKANI, ROSE TALA, HENRY LUI, PHILIP BUTO -Claimant
AND O’BRIEN DI
(Representing the Nekama Gumu sub-tribe of the Nekama tribe)

AND: ENOCH PEGOA - First Defendant

AND: BARTHOLOMEW VAVANGA - Second Defendant

AND: GUADALCANAL RESOURCES DEVELOPMENT ASSOCIATION - Third Defendant

AND: GUADALCANAL PLAINS RESOURCES DEVELOPMENT COMPANY LIMITED
- Fourth Defendant
Date of Hearing: 29^th March 2017.
Date of Ruling: 26^th April 2017.

Mr. P. Tegavota for the Claimants/Applicants.
Mr. W. Rano for the First Defendant/Respondent.
Mr. N. Laurere for the Second, Third and Fourth Defendants/Respondents.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Introduction

1. By amended application filed 1/11/2016, claimants applied for Summary Judgment (“S J”). Application for S J, is one way to bring to an early ending, a proceeding, without going to trial. Early endings to proceedings, are governed under Chapter 9 of the Rules.
2. Claimants are applying for S J on the basis of the first and second defendants’ defence. Claimants say they belief, the first and second defendants’ defence, has no real prospect of succeeding. Therefore there is no need for trial of their defences.
3. I first remind myself of the principles to apply in deciding whether or not to grant S J without a trial. The principles are in the Rules. They include: S J will not be granted if there is an issue for investigation, or if there are real issues for contention, then trial is warranted to test those issues;^[1] whether the party opposing S J has an arguable defence, or in the claimant’s perspective, the defence has no arguable defence;^[2] or in the defendant’s perspective, the claimants have no real prospect of succeeding.^[3] To succeed in an application for S J, the applicant’s case must be based on clear evidence supporting the facts pleaded in a claim or defence,^[4] as the case may be. This is why the Rule calls for the application for S J or the opposing party to file a sworn statement, verifying the facts in the claim or defence, as the case may be. Case law authorities^[5] have also applied these principles. With these principles in mind, I now consider the application for S J.

Issues for investigation at trial

4. Claimants case against first and second defendants is for replacement of trustees, financial accountability from trustees, in relation to trust funds held and administered on behalf of Nekama Kumu (Gumu), a sub-tribe of Nekama tribe. Claimants say they represent a sub-tribe of Nekama that is the beneficiary sub-tribe that should rightfully receive monetary benefits in relation to the developments taking place on 192-031-1, 192-035-2 and 192-037-2 (“the 3 plots”).
5. In a nut shell, the claim could be properly described as a claim against the first and second defendants as trustees, for breach or lack of trusteeship, for replacement of trusteeship, for accountability of trust funds and for entitlement to monetary benefits etc. Broadly a case of beneficiaries against trustees. Beneficiaries are claimants (as sub-tribe of Nekama) against Pegoa and Vavanga as trustees. These among others are issues that need to be properly investigated at trial.
6. As against the third and fourth defendants, claim is for payment of monetary benefits for the commercial agriculture plantation taking place on the 3 plots.
7. In the joint defences by the second, third and fourth defendants, they deny the existence of Nekama Gumu sub-tribe and say that only Nekama tribe is the beneficiary tribe. First defendant, on the other hand, says that Nekama Gumu sub-tribe has no exclusive beneficial right to the developmental benefits taking place on the 3 plots. And that the rightful beneficial sub-tribe is Nekama Tagativi not Nekama Gumu. And deny that the claimants’ sub-tribe have any rightful or valid claims over the 3 plots. These defences, among others, raised arguable defences and issues for real contention at trial. A trial is therefore warranted to investigate fully these contentious issues.

Substantive Issue (s) for Trial

8. In all major developmental transactions affecting the 3 plots, where it relates to Nekama tribe, there were mention of Nekama tribe only. Not Nekama Gumu or Nekama Tagativi or Nekama Coastal or Nekama Bush or any other Nekama sub-tribal descriptions. For instance, in the original acquisition; in the appeals against acquisition; or in the chiefs decision immediately following acquisition; or in the Constitution of the third defendant; or in the MOU between 4^th defendant and New Britain Oil Limited, you only see mention of Nekama tribe. Claimants do recognise the existence of the third defendant, as the commercial arm representing Nekama tribe and other tribes in the Guadalcanal plains, which are tribal members under the Constitution of the third defendant. Why is the Nekama Gumu sub-tribe or Nekama Tagativi sub-tribe emerging in year 2014? Why were they not mentioned in the 1980s, or 1990s (acquisition, acquisition appeal or chiefs decision) or in the 2000s (2004^[6] and 2008^[7])?

9. In the Constitution of the 3^rd defendant, for instance, there was definition of member tribes that mentioned Nekama tribe only, not any other Nekama sub-tribal descriptions. These two newly emerging Nekama sub-tribes, become a live issue for proper investigation at trial. In preparation for trial, these issues must be properly thrashed out at the relevant forums, not the chief’s forum only, but under the Constitution of the third defendant as well. This is the Constitution from which Nekama tribe derives its beneficial rights and interests^[8] in relation to commercial agriculture developments taking place on the 3 plots. The Constitution do recognise sub tribal clans of the 10 founding subscriber tribes^[9], to the Constitution. But who those sub-tribal clans will be; is a matter to be decided under the Constitution. Can it be a matter to be fully investigated at trial?

10. There must be a trial of the foregoing mentioned issues. But before trial, the third defendant’s Constitution dispute resolution mechanisms^[10], must be exhausted. The Nekama tribal resolution mechanisms, must be exhausted. And then any outstanding legal issues can be dealt with in this Court. Other filtering process are still available and not yet fully exhausted. I also noted from oral submissions that the claimants have now been paid some money/benefits. All may not be that gloomy. There may still be room for dialogue. Even the chief’s forum; there are real disputes over which is the appropriate chiefs panel. Another contentious issue for full investigation at trial under the relevant Local Court Act (Cap 19).

11. Orders of the Court are:

11.1. Application for summary judgment is declined with costs.

11.2. Before trial; parties must demonstrate that other existing organisational and tribal dispute resolution mechanisms are exhausted.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Rule 9.66.
^[2] Rule 9.64 (a).
^[3] Rule 9.61 (b).
^[4] Rule 9.59 (a) or 9.61 (a).
^[5] See the cases of John Brown & Others –v- New World Ltd, cc 66/2013 and Solomon Islands Home Finance Ltd –v- Jack Kaota & Another, cc259/2012.
^[6] 2004 was the MOU between New Britain Oil Limited and the fourth defendant.
^[7] 2008 was the Constitution for the formation of third defendant.
^[8] See meaning of “Member Tribes” under the Schedule of 3^rd defendant’s Constitution; which mentioned Nekama tribe.
^[9] One of the 10 founding subscriber tribe members is Nekama tribe.
^[10] See objective 3 (f) of the 3^rd defendant’s Constitution.