Peoko v Bako [2019] SBHC 34; HCSI-CC 119 of 2012 (25 March 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Peoko v Bako
Citation:
Date of decision:	25 March 2019
Parties:	Edmond Hillary Peoko and Ivan Rotu Bele v Lucy Bako, Douglas Rove, Selwyn Dika, Bolton Hebala, Judah Sakiri, Dero Daniel Pitakaka, Nelson Bako, Hopkins Zea, Susan Salahiga, Ingrid Habu and Adrian Koti, George Hagela Kolae, Sarah Nule, Donald Nomi, Frank Habotu and Paul Tanavalu, MSL Imports and Exports Company, Isabella Lam Danny Lam, Attorney General; Adrian Koti Bako, MSL Imports and Exports Company Limited v Ivan Retu Bele
Date of hearing:	19 March 2018, 8 August 2018
Court file number(s):	CC 119 of 2012
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	That Court refuses to grant Default judgment filed against all the Defendants. That the claim be dismissed for the reason the Claimants have no standing, and that the claim is frivolous and vexations because the Claimants have no decision in their favour to sustain damages for trespass, therefore is an abuse of process. That Mr W. Togamae is recused from representing the Claimants in this cause of action because of conflict of interest. That interlocutory orders made on 17th February 2012 be discharged and dismissed forthwith. That cost of this application is paid by the Claimants to all the Defendants.
Representation:	Mr W. Togamae for the Claimants in HCC 119 of 2012, for the Defendants in HCC 75 of 2015 Mr W. Rano for the Bako family (some of First Defendants.),Mr F. Habotu (one of Second Defendants) Mr G. Fa’aitoa for Selwyn Dika (one of First Defendants) Mr. M. Ipo for Susan Salahiga (one of First Defendants) Mr D. Nimepo First and Second Claimants in HCC 75 of 2015. Ms Taki for Fifth Defendant in HCC 119 of 2012.
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case 119 of 2012

ENMOND HILLARY PEOKO AND IVAN ROTU BELE
Claimant
(Representing the Sinagi Laena Tribe of Barora
Fa-Pizuana land, Kia, Isabel Province)

LUCY BAKO, DOUGLAS ROVE, SELWYN
DIKA, BOLTON HEBALA, JUDAH SAKIRI, DERO
DANIEL PITAKAKA, NELSON BAKO, HOPKINS
ZEA, SUSAN SALAHIGA, INGRID HABU and ADRIAN
KOTI BAKO.
First Defendant
GEORGE HAGELA KOLAE, SARAH NULE, DONALD
NOMI, FRANK HABOTU and PAUL TANAVALU.
Second Defendant

MSL IMPORT AND EXPORT COMPANY LIMITED
Third Defendant

ISABELLA LAM, DANNY LAM
Fourth Defendant

ATTORNEY-GENERAL
(Representing the Commissioner of Forest)

Civil Case Number 75 of 2015

ADRIAN KOTI BAKO
First Claimant
(Representing his Sinagi Laena Clan of Kia, Isabel Province)

MSL IMPORTS AND EX PORTS COMPANY LIMITED
Second Claimant

IVAN RETUBELE
Defendant
(Representing himself)

Date of Hearing: 19 March 2018, 8 August 2018
Date of Ruling: 25 March 2019

Mr W. Togamae for the Claimants in HCC 119 of 2012, for the Defendants in HCC 75 of 2015
Mr W. Rano for the Bako family (some of First Defendants.), Mr F. Habotu (one of Second Defendants)
Mr G. Fa’aitoa for Selwyn Dika (one of First Defendants)
Mr. M. Ipo for Susan Salahiga (one of First Defendants)
Mr D. Nimepo First and Second Claimants in HCC 75 of 2015.
Ms. Taki for Fifth Defendant in HCC 119 of 2012.

RULING ON INTERLOCUTORY APLLICATION

Faukona, PJ: There are four applications emanated from the two cases consolidated by an order of this Court on 27^th June 2016. The Claimants’ application for Court contempt was standoff due to partial compliance with the orders of the Court. The third Defendants whom the orders were directed against undertake to pay another sum of money in due course. Therefore this Ruling does not include that application.

2. The three applications left are Claimants application for default judgment against the first to the fourth Defendants. The first Defendants application to strike out, and the second Defendants’ application to strike out.

Application for default Judgment:

3. A claim in Category A was filed on 24^th April 2012 by the Claimants in Civil Case No. 119 of 2012. At that time the original parties were the Claimants and the first Defendants. Two years and ten months later, on 24^th February 2015, the first Defendants filed an urgent application for restraining orders, including a pray for an order to declare the Claimants has no standing in law to institute this proceeding. By then the third and the fifth Defendants were included as parties probably for the sake of complete application for the restraining orders.
4. On 27^th October 2015, an amended claim was field. This time around the second and the fourth Defendants were included as parties. There was an order made on 9^th September 2015 for further interested parties to file their application for joinder by 2^nd October 2015. An application was indeed filed on 24^th November 2015 in respond to the direction orders. On 3^rd August 2016 a further amended application to add a party and leave to remove others was filed.
5. Having perused the file thoroughly, the application to add or remove others is not being heard yet.
6. Following the filing of the amended claim on 27^th October 2015, the only amended defence filed was from the second Defendants but was late by 3 months and 6 days. In fact their amended defence was filed on 2^nd February 2016. The failure had prompted the Claimants to file application for default judgment on 9^th February 2015.
7. The period running from the date of filing of the original claim (24^th April 2012) to 27^th October 2015 when the amended claim was filed was 3 years and 6 months. Should the Claimants were serious; they would have pursued aggressively to obtain a default judgment against the first Defendants as soon as possible. Nothing was done until they filed the amended claim which themselves included 2^nd Defendant to the 5^th Defendants. Inclusion of additional party was necessary when the Court accepted, hence the orders of 9^th September 2015, for interested parties for joinder (in the amended claim) to file their application for joinder within 14 days.
8. Nevertheless it is crystalline clear from the record that all the Defendants had failed to file their amended defence except for the second Defendants which was late pursuant to R.5.37 (b).
9. In the circumstances, is it necessarily relevant for the Court to consider granting default judgment against all the Defendants, including the second Defendant for being filing late amended defence?
10. From the date of filing of the amended claim and served, to 2^nd February 2016, when the said Defendants filed their late defence the Claimants had ample time to activate their application for default judgment against all the Defendants. Even immediately after the second Defendants had filed their amended defence the Claimant still had sufficient time to come to Court as early as possible and seek a default judgment.
11. The Claimants in their sloppy attitude and delay, hence, the Defendants therefore grasped the privilege to file application to strike out which now being heard together with the application for default judgment.
12. In proper reading of the fashioned applications to strike out, it appeared the Defendants’ intention was to reply to the amended claim. However, the claimants stood a good chance to utilise R.9.17, where defence is not file, or even late in filing a defence, apply to the Court for a default judgment as soon as possible. There is no need to tarry more. The further delay in doing so, will buy the Defendants a chance to file an application. The current position now is that all these applications were agreed to be heard together. Hence, the process which could have started by R9.17 and advance forward now would have to be short circuited by considering two other applications to strike out filed by the first and second Defendants.
13. Mr Ipo Counsel for Mrs Susan Salahiga (one of named 1^st Defendants) explained why the defence was filed late. He refers to the sworn statement of Mrs Salahiga filed on 13^th December 2017. On paragraph 2 she explained the application for default judgment was served upon her former Solicitors, Pitakaka Law Chambers. She was not informed of the application. The only time she knew of the amended claim was when she was shown copies of the application for default judgment, and at the same time shown the sworn statement of Mr Talu in support of the application, in November 2017. She was then asked to provide instruction.
14. After the date of service of the amended claim on her former Counsels, she somehow went to his Solicitor at Kukum several times, but was not being informed about the amended claim, or that she was requested to provide instruction to file a defence.
15. On the part of Mrs Salahiga, it is apparent her former Solicitors were at fault. I will reiterate this again when I consider the application to strike out.
16. Mr Rano who represents all the first Defendants at that time, agreed that the amended defence was file late. However, the defence contained substantial issue of ownership in custom, hence, described as meritorious defence. He further stated that when such application concern customary land Court must be very mindful when considering a default judgment.
17. From that line of argument, I am cautious and will consider submissions including the application strike out. Not forgetting Mr Ipo’s client in her application to strike out as well.
18. Notably, it is considered prudent to determine all the applications in one assessment. Therefore, I will decide on the application to default judgment within the precinct of the sandwiched applications to strike out.

Applications to strike out.

19. The first Defendants’ application to strike out has two components. One is an application to strike out premise or R3.42, and second is an application to recuse Mr Togamae from representing the Claimants for being having interest in the outcome of this case. Legal description of such interest is a conflict of interest.
20. The second application to strike out is by Mrs Susan Salahiga seemed to support the first Defendants’ applications. In both applications the question to address is one of law and not necessarily facts.
21. The requirement under R3.42 is that any person entitled in custom to represent any tribe (as in this case) to sue or be issued, require that person to proof of his entitlement in custom to act as representing that tribe before any further step in the proceeding may take place. In other words proof of being authorised or mandated is an initial step before filing of a cause of action in court.
22. I have the liberty to peruse the files thoroughly. Unfortunately I do not seem to see any letter of authorisation by the sinagi laena tribe of barora fa-pizuana authorizing the Claimants to represent their tribe in these proceedings.
23. The emphasis in R3.42 is a requisite protocol that a representative of a tribe must first obtain authorization or mandate before he is entitled in custom to represent. This must be done initially before further steps are taken. In other words, the entitlement in custom, for representation, must be first sort out before filing of a claim, otherwise all that follows is not valid.
24. I noted the argument advance by Mr Ivan Rotu in his sworn statement of 7^th August 2018 that he was the grandson of the most powerful man Mr Leonard Rotu Bele and was the biological descendent and tamagha (succeeded blood) of the late great chief Mr Leonard Rotu.
25. The fact is that he represented sinagi laena tribe of baora fa-pizuana in this court. It may seem the Claimants who are brothers preferred to represent their grandfather, which is a single individual person. Now the grandfather had demised and undoubtedly had left behind his descendants. The descendants according to culture form the butubutu, the tribe. If the Claimant should go by R3.42 then their tribe of sinagi leana of barora fa-pizuana lands must concede in a formal manner that they would represent them in these proceedings.
26. In the light of the Court of Appeal Case No. 5 of 2016, an appeal from the High Court Civil Case No. 74 of 2013, in respect of the land Kongulae water source where SI Water Authority draws water from.
27. In dismissing the High Court decision, the Court of Appeal decided that the High Court was wrong to reject Roselyn Dettke’s interest as a beneficiary in the land as a member of the kakau tribe. Further, the Court of Appeal found at the conclusion reached by the trial judge was wrong as to custom relating to representation without adequate evidence to show.
28. In the light of that decision it is necessary to upheave some evidence in relation to the Claimants representation. I do not intended to expose full facts supporting a party’s case in relation to the substantive issue but, at least some evidence in relation to representation and standing.
29. The legal interest which is a portion has been discussed above considering R3.43 and its pre-requisite requirements and I need not reiterate again.
30. In the light of the Court Appeal decision a distinction has to be drawn. The logging operation on the land which sparked these proceedings was undertaken by the first to the fourth Defendants, on lands given to them by the Claimants grandfather. Therefore the claimants, from the beginning were not beneficiaries at all. They also have their portions given by the same authority on the same island.
31. This may be distinguishable from the Court of Appeal decision because Mrs Dettki might have been a beneficiary from the rentals as being a member of kakau tribe paid by the government for the use for kongulae water source. In that instance, the Claimants interest as being a beneficiary may have standing to commence a legal litigation in the Court Avenue.
32. In the current case the Claimants claim ownership of the whole entire island as being the blood descendant of the supreme authority Mr Rotu Bele, known as tamagahi, who owned the island. That original right of ownership was never disputed. However the Defendants assert the whole entire land had been divided to individuals, clans and groups.
33. Further the Claimants rely on the Chiefs decision made in 1986. Paragraph 3, of the chiefs determination, stated that Mrs Victoria Suka was only a trustee but does not own the entire pizuana. What the claimants may have overlooked is paragraph 2 of the Chiefs decision which stated those individuals and groups who use allotted areas of land in pizuana and barora fa given by Mr Rotu, to continue to own, till and live in their respective areas. This was a traditional affirmation which the Chiefs cannot change.
34. That decision simply means that whilst clans, groups and individuals were allocated areas of land and of course Mrs Suka as well, she was the overall trustee over all the lands given to other people including her in the entire pizuana customary land. Of course she does not own those lands because they were already allocated to others, but she has trusteeship power over all those lands within the entire customary land. Apparently that decision does not assist the Claimants at all; in fact it was read in contradictory to their assertions.
35. Another decision attached was the decision of the Isabel customary land Court dated 28^th April 1999. It is important to note the parties to that dispute were Selwyn Dika as Appellant and Victoria Suka as Respondent. The Court eventually dismissed Mr Dika’s appeal and also dismissed the Local Court decision and labelled it as null and void. The reasons given were that Mr Dika had insufficient interest to file a referral to the Local Court and to appeal the Local Court decision to the CLAC. So the only decision prevails at that time was the decision by the Chiefs in 1986.
36. Again the Zabana House of Chiefs, on 18^th May 2018 adopted the 1986 decision. At paragraph (1) of their declaration stated that they did not recognize Ivan Rotu Bele’s claim of ownership over barora fa, ghaghe, ludana and pizuana customary lands, except potions of land given to his father which he excises right of claim and own like any other stakeholders as stipulated by the Chiefs’ decision in 1986.
37. The same sentiment was echoed by the Paramout Chief of Isabel Counsel of Chiefs in his declaration on 18^th May 2018, that Alfred Peoko and Ivans’ father is from etieti tribe and Ivan’s mother is from belama tribe of sigana, nagoibi in Bugotu in Isabel. Likewise is Ivan Rotu under the matrilineal system, is from belama tribe following his mother.
38. And at paragraph 2 he said. I declare that Ivan Rotu Bele, Alfred Peoko’s son, has no customary right to make claims (a) as the sinagi tribe spokesman (b) given the right to tamagha of barora fa, ghaghe, loduna and pizuana customary lands.
39. On 8^th June 2018, the Paramount Chief again further stated at paragraph 2, page 3, that zabana culture and custom, Ivan could never be a blood kinsman of Chief Lenard Rotu. In zabana culture and custom, and in the matrilineal community as zabana in Isabel, Ivan is a blood kinsman of etieti tribe which is his father’s tribe and should have inherited lands and properties from belama tribe which is his mother’s tribe. This is the real zabana custom, culture and traditions and should not be confused.
40. The Paramount Chief of Isabel, the RT. Rev. James Mason is the Head Chief of the Isabel Council of Chiefs. He is the Paramount Chief of the entire Isabel Province. He is the retired Arch Bishop of The Anglican Church. A well respected individual not only within the Anglican Church circle but throughout Solomon Islands.
41. His views are of paramount and in a more detail perspective, but supportive of the Chiefs decision of 1986.
42. With those evidence, it is clear the Claimants do not own the whole of barora fa pizuana customary lands. They do own blocks allocated to them like many clans, groups and individuals have. The identification of these blocks had been done by the Chiefs. There is evidence on file to implicate so.
43. In a claim where damages are part and partial of the reliefs, the Claimant as a requirement by law, must proof ownership of the customary land. Proof must be done by way of a decision from the chiefs or courts in his favour. In this case there was no decision by the chiefs or the Courts in favour of the Claimants in respect of the customary lands in issues. But there were decisions in favour of the defendants in particular the 1986 Chiefs decision which the Claimants wrongly interpreted. Therefore the draft defence filed by Susan Salahilga carries merit which appears to contain the entire case of the first and second Defendants.
44. Though it was filed late by six months, the merit it contains was immense. No wonder the Counsel for the Bako family, who were named among the first Defendants, supports the merits of the draft defence.
45. In that instance, I must therefore refuse to grant default judgment against all the Defendants.

Applications to strike out.

46. On the issue of the applications to strike out, there are two basis upon which the applications premise. One, that the Claimants were not authorize by the tribe which they represent to commence litigation in this court contrary to R3.42. There is no evidence to show any letter of authorisation or mandate, neither production of any minute of a meeting which the tribe agreed and appointed the Claimants to represent them in this proceeding.
47. Secondly, there is overwhelming evidence pointed to the fact that the Claimants’ claim is not supported by any decision of chief or Court to sustain the reliefs they sought. Most profoundly are the reliefs for damages and trespass.
48. In the absence of such and in the light of demand to fulfilling R3.42 I must therefore strike out the entire claim and dismissed it accordingly. It is only logic; since the claim is dismissed the application for default judgment must go with it. The Defendants have nothing defend.

Application for recusal:

49. Application for recusal was part and partial of the application filed by the Bako family of the first Defendants represented by Mr. Wilson Rano.
50. The content of the application is such that Mr Togamae represented Mr Habotu previously in Civil Case No. 371 of 2009. Mr Habotu is now one of the second Defendants. The litigation concerned Koloqilo Island with pizuana against Douglas Rove, a member of the first Defendants.
51. The content of the application is that Mr Togamae was married to Melanie, the daughter of Gad Rotu Bele, the second cousin of Mr Habotu. Melanie’s father was also allocated a portion of land within barora fa called isaisao, where Mr Togamae currently has an eco-tourism, although he denies there is no evidence to establish. However, it appears the rest of the reasons for alleging conflict of interest is not denied, although not exposed.
52. In terms of relationship of Mr Togamae’s wife there is no challenge as to its truthfulness.
53. The ownership of the eco-tourism on isaisao land was confirmed by the sworn statement of Mr Frank Habotu filed on 26^th February 2015 that it was owned by Mr Togamae.
54. On 10^th April 2018, Mr Frank Habotu filed another sworn statement which deposed affirming that Mr Togamae represents him in CC 377 of 2009 over Koloqilo portion of land within barora fa. The case was against Douglas Rove. He also confirmed the eco-tourism was established within Mr Togamae’s wife’s portion of land. Therefore he and his wife had interest in respect of that portion.
55. From those evidence, there is no doubt Mr Togamae had an interest in this case, in particular in respect of the eco-tourism established in one of the portions of land within the bigger barora fa pizuana customary land.
56. The conflict of interest also arises when one of the Defendants was represented Mr Togamae’s in a previous litigation. Now that client is one of the second Defendants involved in this dispute against the Claimant whom Mr Togamae represents. It is prudent Mt Togamae recuse himself because the interest he has in the case tantamount to conflict of interest. He must acknowledge the truth and let someone take his place.

Orders:

1. That Court refuses to grant Default judgment filed against all the Defendants.
2. That the claim be dismissed for the reason the Claimants have no standing, and that the claim is frivolous and vexations because the Claimants have no decision in their favour to sustain damages for trespass, therefore is an abuse of process.
3. That Mr W. Togamae is recused from representing the Claimants in this cause of action because of conflict of interest.
4. That interlocutory orders made on 17^th February 2012 be discharged and dismissed forthwith.
5. That cost of this application is paid by the Claimants to all the Defendants.

THE COURT
JUSTICE REX FAUKONA
PUISNE JUDGE