Beni v Karena Heights Ltd [2019] SBHC 73; HCSI-CC 261 of 2019 (3 October 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Beni v Karena Heights Ltd
Citation:
Date of decision:	3 October 2019
Parties:	Simon Beni v Karena Heights Limited, Elite Logging Company (SI) Limited
Date of hearing:	7 August 2019 (Last written submission filed)
Court file number(s):	261 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Accordingly, this claim is struck out with costs
Representation:	Mr. J Iroga for the Claimant Mr. P Teddy for the First and Second Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Holo v Mapo Development Company Limited [2013] SBHC 65, Bako v Rozo [2012] SBCA 2, Joe Totorea Roeroe and George Ahukeni v Taiarata Integrated Forest Development Company Limited and Bulacan Integrated Wood International Pty Limited [2000] SBHC 35, Joshua v Valahoana Company Integrated Development Company [2013] SBHC 13, Pou v Tropical Forest products [2004] SBHC 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 261 of 2019

SIMON BENI
(Duly representative of Gatoga Tribe the custom owner of Pawe Customary Land comprising of other plots of land including Goregore, Iovo, Tararimare, Tarawagu, Karena, Wau, Owo, Maniuhu, Gepa, Nangoni and Ringame)
Claimant

V

KARENA HEIGHTS LIMITED
First Defendant

ELITE LOGGING COMPANY (SI) LIMITED
Second Defendant

Date of Hearing: 7 August 2019 9 (Last written submission filed)
Date of Ruing: 3 October 2019

Mr. J Iroga for the Claimant
Mr. P Teddy for the First and Second Defendants

RULING ON APPLICATION TO STRIKE CLAIM

Keniapisia; PJ

1. Claimant filed a Category A claim on 9/5/2019. Claimant seek reliefs for trespass, damages and permanent injunction against 1st and 2nd defendants. Claimant assert ownership of Pawe customary land in East Wainoni, Makira/Ulawa Province. Claimant alleged that Pawe land is comprised of various portions of lands called: Goregore, Iovo, Tararimare, Tarawagu, Karena, Wau, Owo, Maniuhu, Gepa, Nangoni and Ringamae. Claimant premised his ownership claim on a local court decision dated 16/8/2013.
2. One of the portions of land that claimant assert ownership of is Karena. First defendant through its proprietor Mr. Thomas Bea, also claim ownership of Karena. Mr. Bea’s ownership claim of Karena land appeared more credible, because, it is based on a Local Court decision of 1992. After the dispute reached High Court in 2005, it went back to Eastern Customary Lands Appeal Court in 2007, where that court affirmed the Local Court decision of 1992, in favour Joseph Wemea, father of Mr. Thomas Bea. On the materials Joseph Wemea, succeeded against, a different party, not the claimant herein. And therefore, the decision would not be binding on claimant.
3. Claimant assert ownership of Pawe (Karena) land on the basis of Makira/Ulawa Local Court (MULC) decision of 16/8/2013^[1]. That purported decision appeared very strange for the following reasons: -
   • (i). The decision of MULC was recorded on a Government letter head – belonging to Eastern District Magistrate Court, Kira- Kira post office, Makira/Ulawa Province. A decision of the Local Court (formal courts) is not recorded on a Solomon Islands Government letter head.
   • (ii). The decision of MULC on customary land dispute contains a one page only. A decision of the Local Court that deals with customary land dispute should normally be expected to be lengthy.
   • (iii). The Local Court is presided over by a President and Justices of the Local Court. A decision of the Local Court should be signed by President and majority of the presiding Justices. Here the purported decision was signed by the President and a Court Clerk only.
   • (iv). A Local Court decision is not final without demarcation of boundary^[2]. Here the boundary of Pawe as described by claimant (comprising 11 portions of lands) is not supported under the MULC decision that claimant seek to rely on.
4. In view of the aforementioned 4 reasons, I am not convinced that this is a MULC decision on Pawe land dispute. It is a correspondence (letter) from either the Local Court or Magistrate Court; Eastern Solomon. At the last paragraph of the letter it says “...the chief decision still stands as Simon Beani still have rightful ownership on behalf of the (Gatea Tribe)”. For the claimant’s assertion to stand in this court for redress, claimant should disclose the chief’s decision referred to on Pawe land. I have not seen it.
5. It seems that claimant wants to file this case, to stop defendants from logging on Karena, whilst the dispute over Karena between claimant (Beni) and defendant (Bea) will be referred to the chiefs^[3]. But that is not proper. Mr. Beni’s ownership claim over Karena should be based on a decision of the land courts (Chiefs settlement – Local Court – Customary Lands Appeal Court). Alternatively, claimant should refer the dispute to the Chiefs as in a letter^[4] - a positive step to assert claims to Karena. And then can come to this court to invoke this court’s aiding role, to issue injunction over Karena, pending the Chief settlement of Karena dispute^[5].
6. In view of what I say in paragraph 5, claimant’s ownership claim over Karena land is a mere assertion. A mere assertion over customary land puts this court in an awkward position, because this court does not have jurisdiction to decide on customary land disputes.
7. On the other hand, Mr. Bea’s ownership claim over Karena land sits on a Local Court decision (See Eastern Customary Lands Appeal Court decision of 2007 read with Local Court decision of 1992). The said decision affirmed Thomas Bea’s ownership claim over Karena, even though not binding on Simon Beni, because the latter’s tribe was not a party. This is why Simon Beni should seek settlement of his claim before the Chiefs or Land Courts, against Thomas Bea.
8. Defendants, applied to strike the claim, under Rule 9.75 (a) – (c), saying the claim is frivolous and vexatious, disclosed no reasonable cause of action or is an abuse of court process. To say a claim is frivolous and vexatious means, the claim lacks merit and was brought for an ulterior purpose or is devoid of all merit and cannot succeed and that no reasonable person could properly conclude that the grievance is bona-fide.
9. To say a claim disclosed no reasonable cause of action, the consideration is: Whether the claim has disclosed a cause of action with some chances of success, or whether the claim has disclosed a tenable cause of action for the reliefs sought?
10. For abuse of court process; the consideration is: Whether the claim is one which no reasonable person could properly conclude that the grievance is bona-fide?
11. The well-known Tikani case, one of leading authorities on strike out, says that, if the statement of case disclosed some issues or questions fit to be tried, the mere fact that it is weak and not likely to succeed is no ground for striking. Only if the cause of action is certain to fall then the claim should be struck out. If the claim is weak due to defective pleading, court can cure through amendment. Court’s power to strike should be sparingly used in plain and obvious cases, where no amendment could cure the defect. In Sa’oghatago case, court can consider evidence under the 2007 Rules, but not a detailed and in-depth analysis, as one would do at trial.
12. In this case, there are indeed serious issues for trial. And the issues are contentious. However, the contentious issues are all centred on the one important issue of ownership of Pawe (Karena) land. Claimant claimed ownership, but with no land court decision in his favour or his tribe’s favour. Therefore his claim of ownership over Karena, is but a mere assertion only, until, he has taken positive steps to assert his title to the land. Positive steps will include referral to the appropriate forum of a dispute over Pawe/Karena. This is well settled in this court. In the case of Pou v Tropical Forestry Products^[6], the Court relevantly stated:-
    • “The principle is that before recognising standing, this High court must be satisfied the plaintiff has shown to have a decision in his favour or have had taken positive steps to assert his title to the land and not be relying on a mere assertion of ownership.” (Underlined, my own emphasis).
13. In another case this is what this Court relevantly said:-
    • “A party should not come to the High court for an interim injunction on the ground of trespass to customary land until that party had obtained a final decree of ownership between the disputing parties”^[7]
14. On the principle of standing Faukona J, upheld on appeal, relying on two earlier cases of Veno v Jino and George Pou relevantly stated:-
    • “...to secure a claim for trespass, which of course, give rise to damages, a decision in support from the land courts or the chiefs is sufficient evidence to support the claim and to ground application for inter-locutory reliefs. A mere claim of having authority...do not assist the claimant to come to this court”.^[8]
15. It follows that for claimant to have standing in this court over any claim in relation to ownership of Karena, he must be armed with a decision of the land courts or should have taken positive steps, such as referral to Chiefs for settlement. He has failed to do any of that. On the other hand, it is Thomas Bea, whose claim of ownership over Karena is sitting on a land court decision. Accordingly, claimant lacks standing. And his claim is certain to fall, because the issues raised on ownership, upon which all other reliefs depend, is an issue that this court lacks jurisdiction to adjudicate. The claim is certain to fall in the current form – a mere assertion only. And the claimant lacks standing to come to this court at present over Karena land. If claimant can come another time armed with a land court decision or has taken positive step to assert his title in custom, court can always grant interim reliefs. But not at the present time. And not on the present set of pleadings.
16. For allegations challenging the license and Timber rights acquisition process over Karena land or Pawe - a proper claim in judicial review must be pursued. Claimant pleads Pawe land is excluded^[9]. And defendants say they are not operating inside Pawe land^[10].
17. Accordingly, this claim is struck out with cost.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Exhibit BENI 1 of statement by Simon Beni filed 02/08/2019.
^[2] Holo v Mapo Development Company Limited [2013] SBHC 65; HCSI-CC 92 of 2011 (11^th June 2013).
^[3] See paragraph 4 of Beni statement filed 2/08/2019.
^[4] Bako v Rozo [2012] SBCA 2; CAC-CAC 42 of 2011 (30^th March 2012).
^[5] Well- Known Gandly Simbe Court of Appeal Decision.
^[6] [2004] SBHC 4; HCSI-CC 42 of 2004 (4^th August 2004).
^[7] Joe Totorea Roeroe and George Ahukeni v Taiarata Integrated Forest Development Company Limited and Bulacan Integrated Wood International Pty Limited [2000] SBHC 35; HCSI-CC 24 of 2000 (8^th September 2000)
^[8] Joshua v Valahoana Company Integrated Development Company [2013] SBHC 13; HCSI-CC 121 of 2013 (15^th August 2013).
^[9] Paragraph 7 of statement of claim.
^[10] See defense filed 31/05/2019.