Sogilo v Pou [2018] SBHC 47; HCSI-CC 395 of 2017 (27 April 2018)

Civil Case No. 395 of 2017

JOHN SOGILO (Claimant)

V

GEORGE POU, TROPICAL RESOURCES DEVELOPMENT CO. LTD, TRI-JAM ENTERPRISES LTD AND SUNNY HU CO. LTD (1st 2nd 3rd Defendant)

Civil Case 305 of 2015

DAVID MOA & OTHERS (Claimant)

V

GEORGER POU HYBRID RESOURCES LTD, EVERWIND COMPANY LTD, ATTORNEY GENERAL (1st 2nd 3rd defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Date of Hearing: Date of Judgment:

29th March 2018 27th April 2018

D. Marahare for claimant
W. Rano for 1^st defendant
M. Tagini for 2^nd 3^rd defendant

Application to strike out proceedings as showing no cause of action

Brown J:
This proceeding started originally has an application for contempt filed on 28 August 2017 for breach of ex parte orders given in other proceedings, cc 305 of 2015 on 5 August 2015, restraining logging activities within larger Pugu land, in particular land called Begalua, Big Ngella, Central Island Province. An ex parte interlocutory order stopping logging on the basis of the material in support sworn by one John Misini for the claimant was given by this court on 11 October 2017 and such order came before the court for further hearing interparty when the ex parte order was discharged and other orders made in relation to the proceeding.

I reproduce part of the reasons given on 23 November last when this ex parte order was discharged.

“Any ex parte order should only be for a limited period. Mr. Pou does not recall service of the order of 5 August 2015. That order has with it the right in this court to deal, by way of incarceration in jail, where contempt of the order can be shown. Since 2015, the proceedings cc 305 /2015 have languished. Any ex parte order should only be for a limited period. In 2016 the registrar of this court wrote to all practising counsel to the effect that the period may be some 14 days and that the interparty hearing following service of the order, should normally fall within that 14 day period. When I look at the order of 5 August 2015 nowhere is there provision to show when the interparty hearing is to take place. The order in those circumstances may be presumed to be in the nature of a permanent order. Where these defendants have had no opportunity to be heard on the veracity of the ex parte order, there is not only a breach of natural Justice and an abuse of the process of the court which this court may not countenance, but continuation of such an ex parte order has and will bring this court into disrepute. Today Hendy Buga an employee of Global lawyers has filed a sworn statement of service of the ex parte order of 5 August 2015 saying he served one John O, staff of Rano and Co, claimed to be the legal representatives of the first the third defendants in cc 305/ 15. That cannot be for the earlier order was obtained ex parte without any of these defendants knowing anything about the application and consequently it can have (stet) no representative pursuant to the rules, of these defendants in the proceedings. Such orders in any event, since they carry with them the risk of jail through contempt, must be served personally on those sought to be injuncted. There is no justice apparent in these proceedings, Mr. Rino says for there has been no evidence of service of the originating process, the category A claim. He says such claim expires after three months, Rule 5. 43 so provides. (There is no evidence of service of a category A claim)

The ex parte order is discharged forthwith. The category A claim seeking some $603,000 now faces an application to be struck out. When I look through the file I do not see any proof of service. This matter as I say has languished for some time the claim ceases to be valid after three months, it was filed on 21 August 2015. The proceedings in cc 305 of 2015 are struck out as showing no reasonable cause of action. The application for contempt originally filed in this proceeding is also struck out I order costs in an amount of $2000 to be paid by the claimant to the first defendant. The application to strike in cc 395 of 2017 be stood over to Thursday, 29 March 2018 at 9:30 AM for hearing.”
The defendant relies on the statement of 23^rd of November 2017 by one George Pou, a sworn statement in support of the application to strike this proceeding. I reproduce portion of his sworn statement.
“1. I am the First Defendant. Because of the need to respond to this proceeding I make a brief explanation. Here there are.
2. My involvement with the Second and Third Defendants is through log pond agreement with them. I have no logging agreement with them. Now produced and shown to me and marked “GP 1” is a true copy of the agreement.
3. Pugu Customary Land has gone through various determinations in custom. Since the disputes the Pugu Customary Land has been subject to many descriptions. The three main descriptions are Tavanare Lesser Pugu and Larger Pugu. I will use these names for purposes of clarity and convenience.
4. Lesser Pugu was first disputed in 1998 before the Boli House of Chief, the Local Court and then CLAC. I lost before the Chiefs and Local Court but won in the CLAC. I do not have with me the copy of the CLAC. I will tender it when I do have it. Now produced and shown to me and marked “GP 2” is a true copy of the said decisions.
5. Tavanare was first disputed before Boli House of Chiefs in 2005 against Mumuku. Charles Soro, John Misini and John Sogilo claimed but did not challenge me. Now produced and shown to me and marked “GP 3” is a true copy of the chiefs’ decision.
6. Larger Pugu (inclusive of Taninaviku and Begalua) was first disputed before Boli House of Chiefs in September 2004 against Soro, Sogilo and John Misini. They lost. Now produced and shown to me and marked “GP 4” is the true copy of the said decision.
7. Soro and Sogilo referred a dispute to the Local Court. Now produced and shown to me and marked “GP 5” is a true copy of the referral.
8. The Local Court sat and determined ownership. Soro appeared with John Sini. They lost. They have not appealed since or I do not have any record whether they appealed. Now produced and shown to me and marked “GP6” is a true copy of the said decision.
9. However in 2011, Mr. Soro attempted to quash the Local Court decision but due to his failure to prosecute his claim it was struck out on or about 5 December 2013. Now produced and shown to me and marked “GP 7” is a true copy of the order.”

When I read the various decisions of the house of chiefs and the local court decision following the appeal from the earlier decision of the Boli house of chiefs given in September 2004, I am satisfied that the appeal related to the claim by Charles Soro to land known as Taninaviku customary land within Pugu and that George Pou jnr on behalf of the Pugu clan of Gaubata Tribe had been found to hold such land. When I look at the map has exhibited at 8 I am satisfied the land known as Begalua falls within the larger Pugu land delineated on the map. I accept these statement that Charles Soro and John Sogilo are brothers, John Misini is the son of John Sogilio. On balance then I am satisfied the claimant has not shown proof of ownership of the subject land, Belalua. I am further satisfied the land, Begalua, falls within the greater parcel known as larger Pugu. The decision of the Sandfly house of chiefs given on 29 November 2008 in the absence of George Pou, recites that the chiefs do not hesitate to preside over the matters on the understanding that the Boli house of chiefs was completely dissolved, the whole, in 2008 by the paramount chief of Gela. Whilst the dissolution of the Boli house of chiefs may fall to be decided by the paramount chief, the findings of the earlier Boli chiefs had been taken on appeal to the local court. Since the local court accepted that Charles Soro relinquished any claim to Pugu Taninaviku allowing the local court to make the finding in favour of George Pou, while Charles Soro had made earlier claim by way of unaccepted settlement, following ownership dispute before the chiefs in 2004 and since his claim did not include Begalua rather included Tavanare [to which Charles Soro had not shown proper right, by finding of the local court] I am not satisfied the claimant has made out a case where he can be said to have status as landowner sufficient to claim damages for trespass. His rights fall to be decided as a claim in personam rather than in rem against those found to be the authorized “representatives” of larger Pugu land. Nowhere has the claimant shown his standing to have status of a res judicata.
Any such judgment may surely be accepted by “representatives” found under the timber rights process, as affording such successful group a claim to share in royalties from logging.

By statement of Samuel Balea sworn on the 10 November 2017, he deposed to the use of a Hanighau log pond by the “agents of the 1^st to 3^rd defendants with whom he left a sealed copy of the orders made on 30 October 2017 with the camp manager. I recognised the person to whom the court order was delivered as the camp manager although I could not get his name.” By sworn statement of the general manager of the 2^nd and 3^rd defendant company, John Parsad acknowledges signing a log pond agreement with George Pou for the use of Sariseke log pond area at Vura. The agreement was annexed together with a map headed Tropical Forest Product A10319 Annual Timber Harvesting Plan 2017 Central Province. The coloured map shows the position of Sariseke log pond and that of Begalua log pond and the deponent, John Parsad says the 2^nd and 3^rd defendants did not land their machineries in Hanigau log pond but in Sariseke log pond. It would seem, since John Parsad appears to accept Hanighau and Begalua to be the same pond although interchangeable names, [for he says Begalua is different from Sariseke log pond] the log ponds are at separate areas. This issue on balance of probabilities, may fall to be decided in favour of the defendants. The claimant has not sought to challenge the more precise use of the names nor the map.

The son of the applicant, John Misini by sworn statement of 6 October 2017, in support of the application for contempt, deposes;
“I confirm that the applicant, my father is one of the owners of Begalua land within larger Pugu land, Big Ngella, Central Province pursuant to Sandfly House of Chief decision dated 28 November 2008 annexed as “DM-1” to the sworn statement of David Moa filed on 15 July 2015 in civil case 305/15 between my father and others –v- 1^st respondent and others.” He then went on to speak of the ex parte restraining orders obtained in those proceedings, orders that I have dealt with elsewhere in my reasons. It is apparent the claimant relies then on the Sandfly House of Chiefs decision as affording him proof of the fact he owns Begalua land. This finding, made in the absence of George Pou who can be seen here, to rely on the decision of the local court as affording him standing in relation to large Pugu land has been I am told appealed and cannot, in the light of all this disputation, be treated as a finding, res judicata for the reasons I have earlier given. It also takes no account of the provisions of the Forest Resource and Timber Utilization Act, S. 10 where any person aggrieved by the determination of the Province following hearing with the customary landowners, to allow the application to log in respect of the land to be affected, shall within one month appeal such determination. No such appeal to the Customary Land Appeal Court would seem to have been made.

In the statement of case seeking to have this proceeding struck out the 1^st defendant has set out the various other proceedings leading to this claim. The Sandfly house of chiefs decision upon which the claimant seeks to rely is dealt with in the case as follows;
“Without the knowledge of Mr. Pou and on protest following knowledge thereof the claimant and others went on to ask the Sandfly House of Chiefs, a body outside of Pugu re-agitate the issues of ownership in November 2008. That body has no jurisdiction and in any event the issue of ownership has already been dealt with by the Boli House of Chiefs. The claimants party attended but refused to take part.”

This court may not presume to intrude into the manner in which a house of chiefs conduct their affairs. It is necessary, however, to note that the Sandfly House of Chiefs did not address the earlier finding in favour of George Pou, rather relied on the absence of a respondent in the proceedings to accept the un-contradicted story of the claimant. I have no direct evidence to determine the jurisdictional standing of the Sandfly House of Chiefs to sit on this dispute, although the 1^st defendant clearly puts the powers of the house in issue. It is for these reasons and others, in the absence of perhaps fairness as understood by courts of record, that interlocutory orders in the nature of injunction, may only be utilized in cases where such orders support such courts of record, not the House of Chiefs.^[1]

When I have regard to the reasoning in Simbe’s case, and the facts pleaded by the claimant in relation to the log shipments coupled with the facts shown in John Parsad’s statement, I am satisfied the defendant, Tropical Resource Development Co. Ltd, called “licencee” in the Sariseke log pond agreement, may be seen to be licencee holder of a logging licence [undisputed] granted under the FR & TU Act. It stands to reason, the land the subject to this dispute is land within larger Pugu and may have been excluded from logging originally or following appeal findings by the CLAC. In terms of Simbe’s case, the claimant has not exercised his rights of appeal, if aggrieved by the Province decision and having regard to the abortive proceedings by this group in this court, it is appropriate to dismiss this proceeding as it does not disclose a cause of action.

I am mindful of the need to afford litigants a fair trial and adopt the principle applied in Stead v State Government Insurance Commission^[2] a decision forming part of our adopted law.^[3] This may well be a case for contested evidence in another place and to further the disputation, for while I have touched on the factual matrix, as phrased by our Court of Appeal, it rather goes to illuminate the absence of the claimant’s standing necessarily to be shown by a binding decision of a court of record. For it is only final orders in the local court or the CLAC that may be seen to create an estoppel by judgment^[4]. In this case, as with so many others, a court should be chary of prolonging litigation where the acts of the claimant by resorting to claims for declarations rather seeks to avoid the need to follow the appropriate procedures when aggrieved by the Province’s decision affecting their claimed land. Such acts may be tantamount to abuse of process.
For these reasons I am unwilling to make declarations in terms of the Claim filed on 18 October 2017 and strike out the claim as having failed to show a cause of action. The 1^st defendants shall have their costs of the proceedings. I make no other order as to costs.

__________________
BROWN J

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^[1] Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 at para.8
^[2] (1986) 161 CLR 141
^[3] Estate Oliver Jino v Havea Majoria (Civil Appeal 15 of 2016) CAC 5 May 2017
^[4]5 Simbe’s case, [1999] SBCA 9; CA-CAC 8 of 1997