Tozaka v Bolopoe Corporation [2018] SBHC 65; HCSI-CC 01 of 2017 (11 June 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tozaka v Bolopoe Corporation
Citation:
Date of decision:	11 June2018
Parties:	Milner Tozaka, Marlon Kuve v Bolopoe Corporation, Xian Lin (SI) Timber Company Limited
Date of hearing:	26 March 2018
Court file number(s):	01 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	Application for determination of preliminary point of law is hereby dismissed. Cost incidental to this application is to be paid to the Claimant by the Defendants.
Representation:	Mr Kaihuna for the First and Second Defendants No appearance for the Claimant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 12.11, Local Court Act (Cap.10). Civil Procedure Rule 3.43.
Cases cited:	Muna V Billy and others.

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case 1 of 2017

MILER TOZAKA
First Claimant
(Representing his Landowning group of reresare Tribe of Vella la Vella)

MARLON KUVE
Second Claimant

BOLOPOE CORPORATION
First Defendant

XIAN LIN (SIS) TIMBER COMPANY LIMITED
Second Defendant

Date of Hearing: 26 March 2018
Date of Ruling: 11 June 2018

Mr. Kaihuna for the First and Second Defendants
No appearance for the Claimant

RULING ON PRELIMINARY POINTS OF LAW.

Faukona, PJ: A claim in category A was filed on 31st of January 2017. The claim focused on allegations of trespass and damage onto reresare and barekasi customary lands.

2. Having a claim on foot provided a pivotal legal foundation upon which the Claimants obtained restraining orders which were granted on 13th January 2017.
3. On 10th February 2017, the first and second Defendants filed their joint defence.
4. On 19th October 2017, the first and second Defendants filed this application based on preliminary points of law to summarily dismissed the claim and discharge the injunctive orders, see authority of R12.11. It would appear the application was filed after the Court made its ruling on inter-parte hearing on 30th May 2017. In that same ruling the court also dismissed the application by the Defendants to strike out the claim.
5. On 26th March 2018, the day set for hearing of this application, no Counsel for Light Lawyers was available to defend this application. In other words the Counsel on record Mr Nimepo was not available to represent the Claimants. In that instance the Court proceeded to hear the submissions from the Counsel representing the first and the second Defendants only.
6. A day later, on 27th March 2018, I noted the Counsel for the Claimants had filed a letter purported to attach a copy of a written submissions. Unfortunately there was no copy of any written submissions on file. However I decided it would be fair to deal with the application in full because the first named Clamant had responded to the application and had filed sworn statements in support.

Issues:

7. There are two legal issues raised by this application. One is in respect of none referral of JADO House of Chiefs’ decision to an appropriate Local Court. And secondly in regards to the issue of standing or locus standi by the first Claimant.

Referring of Chiefs’ decision to appropriate Local Court:

8. The lamentation expressed here is that the Claimants had failed to file a referral case against JADO House of Chief determination delivered on 14th January 2013, to an appropriate Local Court.
9. The argument is that the decision was given five (5) years ago, and since then the Claimants have taken no reasonable steps to refer the matter to an appropriate Local Court. Therefore by legal implication that decision continue to be effective and binds parties to it. Generally that is the applicable law.
10. In confronting the issue head on, without being in-sincerity, is the fact that the process is undoubtedly entrenched in the Local Court Act (Cap.10). Unfortunately that legislation has failed to provide time line for filing of a referral case to an appropriate Local Court. However there are processes provided in the legislation in which a party in whose favour the decision was made can utilise.
11. Practically the legal obligation as often is, that a party to a proceeding abides by the decision of the Court in respect of that proceeding. For instance in the case of Muna V Billy and others.
12. In any event, to apply the ratio of a case flatly without acknowledging the circumstances of that particular case may render the ratio inapplicable.
13. In this case there is indeed a conflict of determination by the JADO House of Chiefs and the Local Court decision in 1994. The Counsel for the Defendants argue, because the Claimants had failed to refer a case to the Local Court, their legal basis to file this cause of action is fluidity by virtue of being bound by the JADO House of chief decision.
14. This same issue was raised by the same parties in their application to strike out the claim. I have succinctly dealt with in paragraphs 24 – 29 in my ruling on 30th May 2017. To rehearse again is a duplication of words. Suffice to say reresare customary land lies adjacent to bolopoe customary land and both shared one common boundary.
15. In 1994 the Local Court determined the overall boundaries of reresare land. It was defined as between oula river mouth to sulukokaipa along the coast. The JADO House of Chiefs in 2013 decided the boundary was at Sielo River. The problem I encounter is that it is difficult to ascertain the boundaries since no proper map was disclosed to show the boundaries. 2 maps disclosed do not indicate where Oula River is, where sulokokaipa is and where Sielo River is. Their locations are not identified in any of the maps. Identifications will assist by indicating the extend of the land and at what location the act of trespass was done. In a claim for trespass boundaries of a customary land must be clear and well defined. If not a trial is necessary to further investigate into the truth?
16. So far as the second Claimant is concerned I had strike out his claim and it’s up to him what next he should do or prefer to do.
17. One reason I noted from evidence why the Claimants could not able to file a referral case in the Local Court because the Chairman of the JADO House of Chiefs refused to sign the unacceptable settlement form.

Standing by the first Claimant:

18. The issue of standing had been raised in the previous Defendants application to strike out the claim which I had dismissed on 30th May 2017. For some unknown reasons this was raised again.
19. My approach to this issue cannot be changed. Should I do, precedent will definitely be perceived as inconsistent and is treated as rogue law. I expect Counsels to be well versed with my reasons for decision from paragraph 47 – 53 of my previous ruling. In this ruling I stand by those reasons which I had narrated in those paragraphs.
20. It ought to be noted that one fundamental point in those paragraphs was the enthronement of Mr. Johnathan Dive. That process of enthronement had significantly impacted a change of responsibilities from Mr Lagobe, the former Chief, to Mr Dive, the enthronement Chief. This traditional handover was special and unique without any formal proclamation, appreciation and thank you.
21. In any event, it was contemplated a peaceful transition will materialise and a hand over, if any, will harmonize a peaceful co-existence. There was no such occasion ever encouraged.
22. The hallmark of this derivative enthronement process is to disqualify Mr Lagobe customarily of assuming no power to authorise the first Claimant to represent reresare tribe, hence fall short of the requirements of R3.43.
23. Unfortunately, circumstances may have changed. There was a note Exh. DWN 1 dated 9th March 2018, by Chief Dive himself supporting the Claimant in the coming timber rights hearing in Gizo. It is unclear whether the Chief only supported the first Claimant on that occasion, or had diverted support completely. In any course, a Chief who had all along denied authorizing the first Claimant to institute this proceedings, disqualifying him, as not having standing under R3-43 eventually changed mind to support first Claimant in his intention to do further logging, has in my opinion, weaken his support for the Defendants. It could be perceived as relinquishing his favour in one hand and re-engaging in a new relationship in another. His inconsistency in evidence had added flavour to the Claimant’s case, whilst in a motion gradually envisaged departure from the Defendants.
24. The Counsel for the Defendants in his conclusion addressed that with the two strong bullet points, supported by the fact that the claim by the second Claimant had been struck out on 30th May 2017, the injunctive orders granted by the Court on 13th January 2017 be discharged accordingly.
25. I am afraid since the boundaries between reresare customary land and bolopoe customary land are not well defined, it would be unprecedented to resume to an early discharge.
26. The two maps attached or exhibited by both parties are maps of annual harvesting plan by the second Defendant. There are no traditional names of rivers, or any feature that will indicate a boundary. There is line mark bald and thin but without any names describing a boundary or river between the customary lands.
27. I acknowledge the injunctive orders had been in place for little more than a year now. However, with the above reasons I am reluctant to discharge as yet.
28. Another and a major reason which determines this entire application is that it is a duplication of the application to strike out which this Court had dismissed on 30th May 2017. The same issues raised previously are raised again in this application. A legal stand point is that to rehearse or rejuvenate the same issues under a different process and rule cannot charge the result. In fact it is an abuse of Court process which this Court must not entertain. I must therefore dismiss this application with costs.

Orders:

1. Application for determination of preliminary point of law is hereby dismissed.
2. Cost incidental to this application is to be paid to the Claimant by the Defendants.
   

THE COURT