Taka v Islands Engineering Consultancy Co Ltd [2021] SBHC 37; HCSI-CC 469 of 2020 (12 April 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Taka v Islands Engineering Consultancy Co. Ltd
Citation:
Date of decision:	12 April 2021
Parties:	David Taka v Islands Engineering Consultancy Company Limited, Permanent Secretary, Director-Central Project Implementation unit
Date of hearing:	31 March 2021
Court file number(s):	469 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, I will enter summary judgment for the government. Government be removed as second and third defendants in this case. This claim is dismissed. I exercise discretion not to order cost against claimant. Alternatively, I grant leave for claimant to file an amended claim against first defendant only – provided he could recognise the contract, his tribal member Jeffrey Umai, executed with first defendant. Alternative leave order will run for a month only. If not pursued in a month, the claim will be dismissed altogether.
Representation:	Mr. D. Taka-Claimant-In Person Ms. P. Rofeta for Defendant
Catchwords:
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 469 of 2020

BETWEEN

DAVID TAKA
(Representing the Ferasagwali Tribe)
Claimant

AND:

ISLANDS ENGINEERING CONSULTANCY COMPANY LIMITED
First Defendant

AND:

PERMANENT SECRETARY
(Ministry of Infrastructure Development)
Second Defendant

AND:

DIRECTOR CENTRAL PROJECT IMPLEMENTATION UNIT
(Ministry of Infrastructure and Development)
Third Defendant

Date of Hearing: 31 March 2021
Date of Ruling: 12 April 2021

Mr. D. Taka- In Person
Ms. P. Rofeta for Defendant

RULING ON APPLICATIONS FOR DEFAULT JUDGMENT AND SUMMARY JUDGMENT

Keniapisia; PJ

1. Claimant’s claim filed on 15/09/2020 seeks declaratory reliefs for ownership of Ferasagwali Customary Land, situated in East Kwara’ae, Malaita Province. To declare that claimant’s Ferasagwali tribe, is the owner in custom of Ferasagwali Customary Land (“FCL”), based on various Local Court decisions, from as far back as 1943 and 1986. The declaratory reliefs sought are against government institutions (second and third defendants) and a company (first defendant). That is a rather strange thing to do. Claimant cannot seek declaratory ownership reliefs to a customary land against government institutions and a company. One can only seek such reliefs against tribes and or individuals. For only tribes and or individuals can claim against each other for ownership of customary lands in Solomon Islands. Claimant could be forgiven because he is a lay person and may not know the technicalities of the law and civil litigation. The claim disclosed no reasonable cause of action, because the reliefs sought are not tenable against the said institutions. Consequently, I cannot enter default judgment. Default judgment is declined.
2. Second and third defendants engaged the first defendant as contractor, to do road works and maintenance (“road works”) on the East Malaita road. First defendant took gravel from claimant’s FCL to use on the road works. Claimant is suing all three defendants for payments in respect of 4,800 gravel loads, which first defendant took from FCL, to use on the road works. Amount claimed is not quantified and so is unknown.
3. First defendant did not file a defence. Second and third defendants filed defence. And say that they were not responsible to pay any royalty monies to claimant or his FCL tribal group. Second and third defendants say that they did not enter into any contract with claimant’s tribe for the gravel taken from FCL. Instead second and third defendants say first defendant was the one who entered into a contract with claimant’s tribe to take gravel from FCL.
4. And in applying for summary judgment, second and third defendants disclosed the contract made between first defendant and claimant’s tribe for the gravel taken from FCL. The contract is exhibited at MQ1 of the sworn statement by Mike Qaqara filed on 20/10/2020. In disclosing the contract, counsel Rofeta submitted that the claim against second and third defendants has no reasonable prospect of succeeding. Hence the application for summary judgment, filed on 17/12/2020. I will enter summary judgment only, if there are no issues for trial, between claimant and second and third defendants.
5. I asked Mr Taka, what is the basis for his claim against second and third defendants? His answer was: “The government paid for gravel used on road works in their vicinity to other adjacent tribal groups. And so it is only fair that government also pay for their gravel taken by first defendant for the road works”.
6. Mr Taka then disclosed agreements under which government paid for gravel to other adjacent tribes and individuals. One such agreement could be seen in Mr Taka’s sworn statement filed 29/03/2021^[1]. The contract was for gravel taken from Kwarifau Land, Fausasa Gravel Source, East Malaita. The concerned land is a registered parcel. And government signed with the people concerned to take gravel from the registered land on or around 27/12/2013.
7. I asked Mr Taka, if he had signed any similar contract with the government for the gravel taken from FCL. Mr Taka says, he is still negotiating with Mike Qaqara, on behalf of the government.
8. The above is enough to make the finding and conclusion that claimant has no basis to sue government for the gravel taken from FCL. The evidence government relied on showed the first defendant was the one who entered into a contract with FCL tribal member Mr Jeffrey Umai on 31/11/2013, to extract gravel from FCL. Mr. Taka disputed the contract and says that Jeffrey Umai had no authority to sign the contract on behalf of FCL tribal group. And government cannot take advantage of the contract. Mr. Taka however concede that Jeffery Umai is from his FCL tribal group. But would not accept the contract as binding on FCL tribe.
9. I can also make the finding and conclusion that the claim against government is weak and has no prospect of succeeding, because there is no contractual basis for the claim. Mr Taka is still negotiating with the government. Ultimately, in the absence of a binding contract, between claimant and second and third defendants, there is no cause of action and there is no issue for trial, between the same parties.
10. Accordingly, I will enter summary judgment for the government. In doing that I will order that the government be removed as second and third defendants in this case. And that will be the end of this claim, because claimant does not recognise the agreement his tribal member Mr Jeffery Umai entered into with the first defendant. This claim is dismissed. And claimant is sent away to continue his negotiation with the government. I exercise discretion not to order cost against claimant. I feel claimant as a lay person does not really know the legal impediments to his claim. He could really be forgiven - for he knows not what he does. Alternatively, I grant leave for claimant to file an amended claim against first defendant only – provided he could recognise the contract, his tribal member Jeffrey Umai, executed with first defendant. Alternative leave order will run for a month only. If not pursued in a month, the claim will be dismissed altogether.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See Exhibit DT 2.