Naomane v Paewa [2019] SBHC 88; HCSI-CC 142 of 2018 (2 December 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Naomane v Paewa
Citation:
Date of decision:	2 December 2019
Parties:	Nigel Naomane, Stephen Ahimarere and Philip Naomane Hasiau; Jerry Raro, Gabriel karahu, James Karahu, and Simon Erehuru v Kasiano Paewa, Leonia Siorau, Mark Inifiri, Mathias Sutahi, Lawrence Rovua, PR. Thomas Tareoha, Adrian Ninipua, Pio Tamausu, and Felix Ramohia ,Attorney General
Date of hearing:	30 September 2019
Court file number(s):	142 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	Application to set aside the claim is hereby dismissed with costs payable to the first and second Claimants on indemnity basis The Court therefore grant summary judgment against the first Defendant and grant all the reliefs sought in the application against them.
Representation:	Mr. R dive for the First and Second Claimants Mr. j Iroga for the First Defendant Mr. A Poa for the Second to the Fourth Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s61 (1), 64 (b), 65 (d) Civil Procedure Rule 9.57
Cases cited:	Liliau v Tora [2007] SBHC 25

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 142 of 2018

NIGEL NAOMANE, STEPHEN AHIMARERE AND PHILIP NAOMANE HASIAU
(Representing themselves as landowners of Makira Customary Land)
First Claimant

JERRY RARO, GABRIEL KARAHU, JAMES KARAHU AND SIMON EREHURU
(Registered Trustees of PN 722-004-1)
Second Claimant

V

KASIANO PAEWA, LEONIA SIORAU, MARK INIFIRI, MATHIAS SUTAHI, LAWRENCE ROVUA, PR. THOMAS TAREOHA, ADRIAN NINIPUA, PIO TAMAUSU AND FELIX RAMOHIA
First Defendant

ATTORNEY GENERAL
(Representing the Ministry of Communication and Aviation)
Second Defendant

ATTORNEY GENERAL
(Representing the Minister of Infrastructure Development)
Third Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Fourth Defendant

Date of Submissions: 30 September 2019
Date of Ruling: 2 December 2019

Mr. R Dive for the First and second Claimants
Mr. J Iroga for the First Defendant
Mr. A Poa for the Second to Fourth Defendants

RULING ON APPLICATION FOR SUMMARY JUDGMENT AND APPLICATION TO STRIKE OUT

Faukona, PJ: There are two applications consented to be heard together. The first application is for summary judgment filed by the Claimants on 18^th June 2019. The second application was filed by the Defendants (2) to (4), on 17^th June 2019, to strike out the claim.

2. A claim in category B was filed by the Claimants on 7^th May 2018. The first Defendants had filed their defense on 25^th May 2018. The 2nd to 4^th Defendants had filed their defense on 5^th February 2019.

Background History.

3. On 17^th July 1998, the Guadalcanal Customary Land Appeal Court (GCLAC) heard an appeal filed by Mr. Kasiano, the first named first Defendant, against the Guadalcanal Local Court decision in land case NO. 3/1996.
4. The issue in that case was a claim over 1½ acres of land being part of Marau airport and run way.
5. In the Local Court Mr. Kasiano claimed 1½ acres of land through his forefather Chief Vesale. Subsequently, the GCLAC concluded that all the customary evidence was against Mr. Christian Karahu whose brother is one of the second Claimants in the current case.
6. The GCLAC therefore concluded that the Local Court was wrong and hence allowed the appeal, and awarded the 1½ acres as part of the land from aimahe to waimaea belong to Mr. Kasiano Paewa. The court also suggested that Mr Paewa to instruct a lawyer to institute a proceeding in the High Court to rectify the registration of one and half acres of land.
7. In 1998 Mr. Christian Karahu appealed the decision of the GCLAC to the High Court. On 5^th February 1999, the High Court in its judgment found the GCLAC did not have jurisdiction to determine ownership of LR 568 or PN: 222-004-1 as it was a registered land. The High Court therefore set aside the decision of GCLAC and quashed the decision of Local Court.
8. After the High judgment, there was no decision of any Court for that matter, in favor of any of the parties that stood the time until 2011 when the Ministry of Communication and Aviation upgraded Marau Airstrip.
9. The status of the airstrip at that time was that, the northern end was a registered land in the names of the second Claimants, the middle portion was registered in the name of the Commissioner of lands and the Southern end was the customary land which the Ministry proposed an extension of the airstrip for 80 meters.
10. In 2011 there was an agreement reached by concern groups including the Claimants and the Defendants that work on the extension of the airstrip to proceed with proper acquisition of the land later, and compensation paid for damages on the extension work.
11. In 2011 the extension work of the airstrip was completed and by 2015 the fourth Defendant produced two (2) reports of the damages done as a result of the work.
12. In January 2016 the first Defendants received SBD$1,806,500.00 for the damages resulting from the extension work on the airstrip, including rental and premium for PE No. 222-004-1.
13. On a date in November 2015, a Deed of Settlement and Release was endorsed by the Ministry of Communication and Aviation, the Ministry of Infrastructure Development and the first Defendants. The first named Defendant of the first Defendants endorsed on behalf of the first Defendants. That document affirmed the release of the sum of $1,806,500.00 payable to the first Defendants for compensation of damages for the extension work of the airstrip.
14. On 17^th April 2016, a Chief’s Panel decided the land of which the extension work took place, and awarded the right of ownership to the first named second Claimants. To date there was no referral case file in the appropriate Local Court against that determination by the first Defendants.

Application to strike out the claim.

15. The application to strike out the claim was filed by the 2^nd, 3^rd and 4^th Defendants. The legal basis for such application is to dismiss or strike out the Claim for being frivolous, or vexatious, or that it does not disclose any reasonable cause of action, or that it is an abuse of process - rule 9.75.
16. The 2^nd to the 4^th Defendants basically rely on clause 1 of the Deed which parties agreed that pakearivu tribe which the sum of $1,806,500.00 paid to, shall indemnify the Solomon Islands Government of any loss, damages, demands, actions or suit which may arise subsequent to the execution of the Deed; and should any third party claim arises from the claim; pakearivu tribe will be responsible for the claim.
17. By operation of the clause, the Solomon Islands Government had utilized it as a fortress or a shield to pass the buck, and liability upon the first Defendants. Literal conscience will dictate the Government’s reliance on such clause is acting as irresponsible authority, not mindful of the background which subsequently gave rise to the Deed of Settlement.
18. There is no evidence that provides which tribe is entitled to receive the compensation money. Any compensation money paid in respective to damages or usages of customary land, the landowners must first be well identified. The common practice acceptable is that, there should be a Court decision or a decision of a land tribunal at hand in favor of a party, of which there was no appeal pending. That should determine eligibility to receive such compensation money.
19. The Government and the first Defendants cannot rely on the GCLAC decision. That decision was set aside and the Local Court decision was quashed by the High Court on 5^th February 1999. From then on, the first Defendants’ claim was not supported by any decision of the Court.
20. What could have been the acceptable process was through the land acquisition proceeding. In the current case there was none. Therefore the payment of the compensation money to the first Defendants was not supported by any evidence or documentation related to land ownership. Indeed as such is questionable, and the source from which the Government obtaining assistance to pay the compensation money is mischief and cannot be verified.
21. A bold stand is that the Government, D2 to D4 cannot rely on the clause as it may prejudice the first Defendants’ case whilst the Government is enjoying protection under clause 1. It manifested an arrogant behavior and disrespectful to purported landowners. I therefore must dismiss the application to strike out the claim.

Application for Summary Judgment.

22. This application was filed by the claimants on 15^th June 2019, to summarily dismiss the defense filed by the firs Defendant on 25^th May 2018, defense filed by the 2^nd, and 3^rd and 4^th Defendants on 17^th June 2019.
23. The application was filed under Rule 9.57 which states, “The Claimant may apply to the Court for a Summary judgment where the defendant has filed a response or a defense but the Claimant believes the defendant does not have any real prospect of defending the Claimant’s claim.
24. However, the belief formed by the Claimant under Rule 9.57 is subject to the operation of R 15.12.23, that any claim brought against the Crown, the Claimant shall not be entitled to summary judgment without trial. Therefore the question to pause, is application for summary judgment, though fully contested, is not a trial process? I would think so, because the word trial denotes trial of the substantive issue and not trial in an interlocutory application.
25. Therefore, my approach to the application is twofold. One is an application to dismiss the first Defendants case and the other is an application to dismiss the 2^nd to the 4^th Defendants case that are represented by the Attorney-General.
26. In such application, the common denominator is the law, and I quote from the case of Liliau V Tora^[1];
    • “Where a defense has disclosed or provide some facts, though weak which the Court may determine at trial, is not a ground for issuing summary judgment. Unless the defense is devoid of all merit or cannot possibly counter-man the claim”.
27. Apparently D2-4 by relying on R. 15.12.23, are exempted from R 9-57 premise on point of law including the operation of clause (1) of the Deed of Settlement and Release.
28. I have dealt with Clause 1 in the D2-4’s application to strike out. Suffice to say the Clause had barred the Crown from being sued for any related issue concerning payment of compensation. But rather utilized as a shield to deplore liability upon the poor purported landowners. By executing the Deed the landowners agreed to suffer any consequences arise out of it. In doing so, indemnify the Attorney-General from being liable, even though it was a major player right up to its conclusion. That is a sad affair which needs rethinking that all participatory parties to the Deed must equally be rewarded or suffered whether for good or not.
29. In respect to Rule 15.12.23, I must agree to the rule which is self-explanatory with sufficient clarity. There is no need to venture defining it again which is already well and self-defined.
30. Therefore, all that needs to be done is to dismiss the application for summary judgment against the 2^nd to the 4^th Defendants. I can foresee the latter effects of this, but that’s what the Attorney-General of this country wants to see.
31. In respect to the application against the first Defendants who rely on certain facts entrenched in their defense filed on 5^th February 2019, and supporting sworn statements.
32. The first point noted is that they seem to agree with Clause (1) of the Deed of Settlement and Release. In doing so accepted wholly to indemnify the government in any suit in respect of loss, damages and demands which may arise out of the document they executed.
33. Again by accepting that, agree to meet any claim or demands by the third party without the government being involved as part of it although the government is an equally participated party in executing the Deed. I do not think the first Defendants are properly advised or instructed on this. Rather than using legal language, the rest of the first Defendants, not the Government any more, should, or even where the third party successfully sued the parties to the Deed of Settlement. The first Defendants by all means now accept liability without any assistance from the government at all. The clause is a killer one which the Government use to safe guard or protect itself from liability and allow the first Defendants to carry on the burden. It’s a sad story any way.
34. The second fact concerns the decision of the GCLAC. The sworn statement deposed by Lawrence Rovua on 12^th July 2018 still maintain reliance on the decision, asserting that first and second Claimants are blood relatives of the losing party in the GCLAC. And by re-litigating the same issue is vexatious and frivolous.
35. The same sentiment was alluded to by Mr. Kasiano in his sworn statement deposed on 1^st August 2018, in relying on the GCLAC decision, and asserting that the Claimants are members of a losing party. However, he further adds that the Chiefs decision on 17^th April 2016 carried error in custom and law. He seems to affirm that because the GCLAC decision was in their favor hence successfully negotiated compensation claim from Government in 2016.
36. What the first Defendants must acknowledged is that the decision by the GCLAC on 17^th July 1998 was appealed and was set aside and the decision of the Local Court quashed by the High Court, on 5^th February 1999. Therefore, it becomes null and void and should not be relied on. The case was completed and finished, no decision remain standing after the High Court decision. To rely on an elusive decision which was never existed is an error or human misconception. Hence cannot be used for current and for all other purposes.
37. It appears the first Defendants are not well versed with the law principal of res-judicata. The principle cannot apply in a situation where the previous decision was set aside and quashed and no decision in existence.
38. On the issue of the Chiefs decision, that is a valid decision. From the Judgment of the High Court on 5^th February 1999 there was no decision by any land Courts or Chiefs tribunal in existence and in favor of any one, until the Chief decision on 17^th April 2017. It was not a decision made in error in custom or law, but the only decision that stood the ages until today. Despite being described as erroneous there was no referral filed with an appropriate Local Court by the first Defendants. In that instance the decision is valid and current for all purposes.
39. On the question of compensation money ($1,806,500.00) paid to the first Defendants was in fact paid without any legal basis. The extension of 80 meters of the Southern end of the Marau airstrip was undoubtedly a development into customary land. No money should be paid to any purported customary landowners unless the acquisition process is finally accomplished.
40. Worst still the compensation money was paid after the valuation reports on the issue of trespassed and damages on the customary land. I noted as well that the reports were consented to and the valuation of damages being assessed. However, that does not mean that assessment figure be paid to any tribe without the acquisition process. That process must first be resumed to identify who are the landowners, and are entitled to receive compensation money or to lease the land to Government for public purposes and use, see Sections 61 (1), 64 (b) and 65 (d) of Land and Titles Act.
41. There is no such process and determination done. There is no one identified in the determination by my acquisition process as to persons who have the rights to sell or lease the land and receive the purchase or lease money – S. 64 (b) of the Land and Titles Act.
42. Therefore it is rather a dubious act, just to pay compensation money without identifying or proving who the rightful customary land owners are. Proof must be by way of acquisition process and determination, or by a decision of the Chiefs or a land Court in favor of a party, only then that party is entitled to receive compensation money.
43. This whole entire saga can only be reduced to valid decision that is, the Chiefs decision on 17^th April 2016, and nothing more. Previous Local Court decision had been quashed, previous Customary Land Appeal Court decision was set aside by the High Court on 5^th February 1999.
44. The only logical thing to decide now is that the compensation money was paid to the wrong people, people who have no tribunal on Court decision in their favour. This therefore, questions the negotiations done with the government of the day. Whether the agreement materialized by the Deed of Settlement was for the benefit of the parties or not. In my humble perception the events were riddled with speculations and mischief which cannot be relied upon as valid payment of compensation.
45. I must therefore grant summary judgment against the first Defendants and grant all the reliefs sought in the application against them.

Orders.

1. Application to set aside the Claim is hereby dismissed with costs payable to the Claimants (1) and (2) on indemnity basis.
2. Refuse to grant application for summary judgment against the Defendants (2) and (3) and (4) without costs awarded.
3. Grant order for summary judgment against the first Defendant with costs payable to the Claimants (1) and (2) on indemnity basis.
4. Orders granting reliefs (1) and (3) in the application.
5. Refuse to grant orders (2) in the reliefs, that has to be determine later.
6. Refuse to grant orders for pecuniary loss of 50% against the second, third and fourth Defendants.
7. Grant order for pecuniary loss against the first Defendants in 50%.

The Court.

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^[1] [2007] SBHC 25; HCSI-CC 407 of 2015 (25 April 2017)