Tohuika v Soaika [2017] SBHC 44; HCSI-CC 72 of 2015 (28 April 2017)

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

Civil Case No. 72 of 2015

BETWEEN: JONATHAN TOHUIKA - 1^st Applicant
MAX TAGO - 2^nd Applicant

AND: AMOS & REX SOAIKA - 1^st Respondent
SAMLIMSAN (SI) LTD - 2^nd Respondent
GREEN HILL ENTERPRISES LTD - 3^rd Respondent
ATTORNEY GENERAL - 4^th Respondent


Date of Judgment: 28^th April 2017

Ms Ziru for 1^st & 2^nd Applicants
Mr W Rano for 1^st, 2^nd & 3^rd Respondents
Ms Lavinta for 4^th Respondents
Mr Laurere Representing Claimant in HC Cc No. 263 of 2010

RULING ON APPLICATION TO CONSOLIDATE PROCEEDINGS

Maina PJ:

Introduction

This is an application under Rules 3.10 of the Civil Procedure Rules 2007 to consolidate this case HC Cc No. 72 of 2015 with case HC Cc No. 263 of 2010.

The basis for seeking the consolidation is on the ground that the decision on either of the matters – HC Cc No. 263 of 2010 and HC Cc No. 72 of 2015 may affect all the parties as the licences held in the two concession areas also affects or concerns the applicant’s lands.

Brief Background

The 1^st Respondent in the HC Cc No. 72 of 2015 is the holder of Licence No. A101220 for Tetaungagoto land and in HC Cc No. 263 of 2010 the 1^st Respondent was also a party and a holder of License No. A10543 for Tehakamagoku land.

The Applicant filed a claim for permanent injunction, restraining and other orders against the Respondents and others from entering and felling the trees within Agohi, Gongona, Tekautae, Tapulunu, Magaateika, Tuhuni, Maaga, Teutua, Lavena, Pasongage, Baguka, Hungagei Tabupogabu, Geagu and Bapoapu customary land.

On the 2^nd April 2015 the Applicant filed an application to amend the claim. When the application to amend was still pending to be allocated a date for hearing, this application for consolidation was filed on 9^th July 2015 by way of certificate of urgency. The ground of the application to consolidate is the Applicant had discovered that the concession area purportedly granted to the 1^st Respondent under Tim. Licence No. A101220 also covered the lands belonging to them. Applicants said any decisions of either matters or the two will affect all the parties.

Issue

Whether the HC Cc No. 72 of 2015 and HC Cc No. 263 of 2010 involves the same matters and outcome of each case will affect the other?

First it is important to comprehend the position of the two cases. Briefly the Applicant’s claim and application to amend the claim in this case (HC Cc No. 72 of 2015) have been heard by the court when this application for consolidation was filed in court. For the HC Cc No. 263 of 2010, a default judgment was entered for failing to file a defence in time. The default judgment had not been set aside and on that the case is disposed.

The Law

Rules 3.10 of the Civil Procedures Rules 2007 (CRC) states that:

“3.10 The court may order that several proceedings be heard together if:

(a) The same question is involved in each proceedings; or
(b) The decision in one proceeding will affect the other; or
(c) For any other reason the court considers the proceedings should be heard together”.

The Applicant relies on the sworn statement of Max Tago on 9^th July 2015 and filed on 1^st December 2015 and so as reiterated by his Counsel in the submission.

Notably, the statement is a reproduction or same version of the applicant’s statement filed on 11^th March 2015. It briefly made reference to the chief’s determination that he is the owner of Agohi, Gongona, Tekautae and other lands. He also made reference to Central Islands Customary Land Appeal Court (CICLAC) decision of 6^th November 2013 that set aside the determination made by Rennell and Bellona Provincial Government Executive on 10^th May 2007.

In reply the counsels for the Respondents objected the application on the reasons that the HC Cc No. 72 of 2015 relate to Licence No. A101220 for Tetaungagoto land and HC Cc No. 263 of 2010 relate of Licence No. A10543 for Tehakamagoku land. On that basis the cases, the subject matters is not the same. For the latter, a default judgment was entered by the court. They opposed the application and said that in this situation the avenue available for the applicant is to apply for joiner.

Counsel Laurere who was the lawyer for the Claimant in HC Cc No. 263 of 2010 submitted that as far as he is concern there will be no hearing for his client case and asked “if it is consolidated, what will happen to our default judgment?”

The Court

The application for consolidation is based on what is described or as the applicant has put it “the decision of either of the matters from the two cases will affect all the parties in the proceedings”.

The claim filed on 2^nd April 2015 in this case (Cc 72 of 2015) is for or relate to Tetaungogoto land – Licence No. A101220. It is also noted from the documents filed in the court that the Cc 263 of 2010 is for or relate to Tehakamagoku land – Licence No. A10543 which currently has a default judgment entered for the case. Beside the latter cases has a default judgment these fact shows the two cases involved different concession areas or matters.

On part of the Applicant, he uses the decision of chiefs on the ownership of the land that he (Mr Max Tago) is the owner of Agohi, Gongona, Tekautae and others lands and the activities or the decision in this case for the concession for Tetaungagoto land – Licence No. A101220. It also will affect the parties of the Cc 263 of 2010.

However, this chief’s decision concerns the land ownerships not the timber rights issues. It is then, a land ownership matter and is not a matter in this applicant’s case.

Also with the CLAC’s decision on the series of appeal CLAC No. 06, 07, 08 and 09 of 2013 in the Renbel Provincial Executive determination the court set aside the determination of the Provincial Executive and it relates to the concession area on Tehakamagoku land.

Consolidation of cases under Rule 3.10 of the CRC cannot be usually ordered unless there are common issues of law or facts of the importance for all that should be settled at the time. This rule is discretionary and is to save costs and time; it is for the hearing of the proceedings together.

With the cases the position is that while this case is yet to be heard and judgment; a default judgment had been entered for the Cc No. 263 of 2010. The evidences also show that licences that concern the two cases relate to different concession areas or lands.

It is my view the orders sought should not be granted, therefore the application for consolidation is dismissed.

ORDER

1. Application for consolidation is dismissed.
2. Cost for this application is awarded to the Respondent
3. The matter is listed for mention 24^th May 2017.
   

THE COURT

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