Takofilia v Gere [2018] SBHC 58; HCSI-CC 124 of 2013 (13 April 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Takofilia v Gere
Citation:
Date of decision:	13 April 2018
Parties:	Mark Takofilia v Agrira and Peter Gere, Cornileus Keteau, Fred Betere and Niusi Kenei, Keteau Niukkwai and Sare Samy, Sualu, Timo and Waitingi, Ganiomea and Seseni Ganiomea.
Date of hearing:	10 November 2017 6 March 2018 ( Further Submission)
Court file number(s):	Civil Case 124 of 2013
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Claimant’s claim is strike out, with no order on cost.
Representation:	Mr. Luke Takofilia for member of Claimant Party Mr. M. Tagini for Defendants 1st to 5th
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act
Cases cited:	1 Muna –v- Billy (2003) SBHC 9; HC-CC 284 of 2001

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case Number 124 of 2013

MARK TAKOFILIA
Claimant
(Representing himself and member of the Afuo customary landowning group of Baegu, Malaita Province)

AGRIRA AND PETER GERE
First Defendant
(Representing themselves, their families and inhabitants of Waroe settlement, Baegu, Malaita Province)

CORNILEUS KETEAU, FRED BETERE AND NIUSI KENEI
Second Defendant
(Representing themselves, their families and inhabitants of Antioch Settlement, Baegu, Malaita Province)

KETEAU NIUKWAI AND SARE SAMY
Third defendant
(Representing themselves, their families and inhabitants of Kafobulu Settlement, Baegu, Malaita Province)

SUALU, TIMO NAD WAITTING
Fourth Defendant
(Representing themselves their families and inhabitants of Zion Settlement, Baegu, Malaita Province)

GANIOMEA AND SESENI GANIOMEA
Fifth Defendant
(Representing themselves their families and inhabitants of Ganiomea Settlement, Baegu, Malaita Province)

Date of Hearing: 10 November 2017 and 6 March 2018 (Further Submissions)
Date of Decision: 13 April 2018

Mr. Luke Takofilia for member of Claimant Party
Mr. M. Tagini for Defendants 1^st to 5^th

RULING ON AN APPLICATION TO STRIKE

KENIAPISIA; PJ

Introduction and Back ground

1. Claimant filed a Category C claim on 24/4/2013. Claim against Defendants 1–5 (“defendants”) is for trespass and eviction or non-interference by the defendants against the claimant in relation to Afu’o Customary Land. Defendants lived on the following villages; which claimant alleges are within the boundary of Afu’o Land: Waroe settlement, Antioch settlement, Kafobulu settlement, Zion settlement and Ganiomea settlement.
2. Claimant claims that these five settlements occupied by the defendants and their families are located inside the boundary of Afu’o Customary Land (“Afu’o land”). Claimant’s ownership claim over Afu’o land is founded on a 1964 decision of the Ata’a^[1] chiefs, to which claimant’s grandfather was the Plaintiff. This Court through Justice Apaniai in 2013, ruled that two issues of custom were not settled in the 1964 decision, that claimant relied on. First issue was boundary was not demarcated. Second was whether claimant Mr. Takofilia is of the female or male line of Afu’o tribe. Justice Apaniai then ruled that the chiefs settled these two issues in relation to the 1964 decision, before the High Court can deal with this matter further.
3. Matter was stayed since 2013, to allow the chiefs to settle the two issues of custom in relation to the 1964 case. Then on 1/5/2017, defendants armed with a chief’s decision settling the two issues; applied to have the claimant’s claim struck out under Rule 9.75; saying the claim is frivolous and vexatious and that it discloses no reasonable cause of action.

Claim that is frivolous and vexatious

4. Claim that is frivolous and vexatious is one that lacks merit and was brought for an ulterior purpose or one that no reasonable person could properly conclude that the grievance is bona fide. Initially, when the claim was filed on the basis of the 1964 chiefs’ decision, the claim can survive the tests described herein.

Claim that is disclosing no reasonable cause of action

5. Claim that discloses no reasonable cause of action is one that is with no chance of success or where no tenable cause has been disclosed for the relief sought or where the cause of action is certain to fall. The well-known Tikani case says where issues fit for trial are disclosed, the mere fact that the claim is weak is no ground for striking.

Claim on customary land Ownership

6. This Court lacked jurisdiction to deal with and decide on disputes between parties on customary land ownership. For customary land disputes, this Court will rely on evidence from the land courts (Chiefs (informal)-Local Court-Customary Land Appeal Courts and High Court on points of law only). Any one claiming customary land ownership without such evidence, the claim is a mere assertion only.
7. In this case, this Court will rely on two chiefs’ decision as evidence of ownership in regards to Afu’o land. First is the 1964 chiefs decision that claimant relied on in evidence; but which this Court earlier found fell short of describing the boundary of Afu’’o land. Secondly the recent chiefs’ decision of Baegu Council of chiefs dated 8/10/2015. This decision rectified the two issues that were outstanding in the 1964 decision (boundary description and whether claimant was from patrilineal or matrilineal side of Afu’o tribe). This was after stay orders by Justice Apaniai in year 2013.
8. Relevant to this dispute between claimant and the defendants is the 2015 chiefs’ decision which found that the 1964 Afu’o land disputed is located outside of the 5 settlements inhibited by the defendants and their families. The other major finding is claimant is born from a female line of the Afu’o tribe. There is no more issue on trespass, because the five settlements are located outside of the Afu’o land; that claimant is asserting ownership of, by virtue of the 1964 decision.
9. I repeat; in regards to Afu’o land dispute against the defendants, there is no more issue, on trespass, after the 2015 chief’s decision, which builds upon the 1964 decision. Hence claimant’s claim for trespass has no chance of success or there is no more issues for trial between the parties. Therefore the claim disclosed no reasonable cause of action.
10. Mr. Luke Takofilia appeared as a family member of the claimant, being his twin brother. His arguments ranged from objections for Counsel Makario not to act for the defendants, because he is related to them and has political interests in representing them. Court has no evidence on this. Mr. Takofilia also attacked the Baegu Chiefs Council saying it is not the appropriate forum. And that the members on the Chiefs Panel are related to Counsel Makario and that there were threats to his party’s attendance. I consider submissions by Mr. Takofilia. I can only say those are grievances that he is entitled to raise at the Local Court on a referral of the dispute. But until the 2015 decision is over turned, this Court can place reliance on that decision to dismiss this claim as not disclosing a reasonable cause of action in trespass, on customary land.

2015 Chiefs Decision recorded on a wrong Form

11. Counsel Makario produced evidence of the Baegu 2015 chiefs’ decision, which was recorded on Form I – Unaccepted Settlement, in the Schedule to the Local Court Act (Cap 19). In the ordinary and according to Muna^[2] case, this Form I will normally be lodged by a party, who is aggrieved by a chief’s decision and is referring the dispute to Local Court – Section 12 (2) of the Local Court Act (Cap 19). For this reason; I called Counsel Makario to make further oral submissions on use of the Form I and its implication to the Local Court Act provisions cited herein. Counsel concede it may be a mistake for chiefs to use the Form I to record their decision. And that may be an administrative mistake. Otherwise a chiefs hearing took place and a decision was reached. And this Court can still accept that decision as evidence of a chief’s decision.
12. Having read Muna and Veno^[3], this Court will accept the Baegu 2015 chief’s decision, though recorded on a wrong Form I. This is because unlike in Muna and Veno, the Form I herein was not produced as evidence of a referral to Local Court, by the successful party. For this dispute is yet to be referred to Local Court. What the parties here need to bear in mind is should claimant appeal to Local Court, he may have to complete an Unaccepted Settlement in the same Form I. And when that happens; it is Unaccepted Settlement (Form I) for a referral purpose under Section 12 (2) of Local Court Act (Cap 19), different from the Baegu 2015 chief’s decision used herein. This confusion will come about; if claimant make a referral to Local Court on this dispute.
13. To avoid confusion in the future, it is recommended that no chief’s panel should use Form I in the Schedule to record their decisions. I have rarely or not seen one chiefs decision recorded on Form I in my 15 years of practice. I normally see chiefs’ decisions hand written on paper or typed on paper.
14. In all that I say above, the orders of this Court are:

14.1. Claimant’s claim is strike out, with no order on cost.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Then called Ata’a Native Court.
^[2] Muna –v- Billy (2003) SBHC 9; HC-CC 284 of 2001 (11^th December 2003).
^[3] Veno –v- Jino (2006) SBCA 22; CA-CAC 002 0f 2004 (12^th April 2006).