Akohiria v Meie [2021] SBHC 80; HCSI-CC 332 of 2019 (9 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Akohiria v Meie
Citation:
Date of decision:	9 July 2021
Parties:	Vincent Akohiria and Geoff Kaka v Samuel Meie, Fr. Johnson Honihuiouou, Gibson Anatararu, Dick Anasimae, Selwyn Sahupeine, SHA Timber and Construction Ltd
Date of hearing:	24 March 2014
Court file number(s):	332 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Application for injunctive interim orders refused. 2. Application to strike out the claim refused. 3. Claim is to be adjourned generally until the House of Chiefs determines the issue of ownership of the customary portion of the land. After the decision a party may restore the case by notice within 14 days. 4. Any House of Chiefs within the Constitutional boundary of Small Malaita can preside over the case. 5. And the parties must agree to that particular house of Chiefs. If Hauwariwari house of chief is agreed upon let that be done. 6. Parties must equally meet the expenses of the Chiefs sitting interms of allowances, transport and accommodation. No one party should meet the entire expenses. 7. The House of Chiefs (whatever) is here by ordered to hear the issue of ownership of the land within 4 months from the date of this ruling. 8. Cost is awarded to the Defendants at 60% on standard basis. 9. Adjourn to 12th August 2021.
Representation:	Mr. Ipo for the Claimant Mr. A. Hou for 1st to 6th Defendants
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 332 of 2019

BETWEEN

VINCENT AKOHIRIA AND GEOFF KAKA
(Representing Saroasi tribe of Mall Malaita, Malaita Province)
Claimants

AND:

SAMUEL MEIE
(Representing Manusuliie of Small Malaita, Malaita Province)
First Defendant

AND:

FR. JOHNSON HONIHUIOUOU
(Representing Tamumee’talau tribe small Malaita, Malaita Province)
Second Defendant

AND:

GIBSON ANATARARU
(Representing Tarauhimolau tribe of Small Malaita, Malaita Province)
Third Defendant

AND:

DICK ANASIMAE
(Representing Walanitengi tribe of Small Malaita, Malaita Province)
Fourth Defendant

AND:

SELWYN SAHUPEINE
(Representing Suluogoa tribe of Small Malaita, Malaita Province)
Fifth Defendant

AND:

SHA TIMBER AND CONSTRUCTION LIMITED
Sixth Defendant

Date of Hearing: 24 March 2021
Date of Ruling: 9 July 2021

Mr. Ipo for the Claimant
Mr. A. Hou for 1^st to 6^th Defendants

RULING ON 2 APPLICATION

Faukona, DCJ: Two applications were heard together in consolidation though nature of each application differs. One application was filed by the Claimant for interim injunctive orders and the other one was filed by the Defendants to strike out the claim.

2. I will consider both applications simultaneously on the basis that both issues are interwoven connected.
3. The application for interim injunctive orders were filed on 31^st may 2019. And the application to strike out the claim was filed on 12^th August 2019.
4. Any application for injunctive orders must attach to it a claim, or supported by a claim. In other words an application for injunction premises on a claim which pleaded a cause of action. If a claim is not filed or not companied the application on the day of hearing, the court may by Rule 7.12 order a claim be filed within certain period thereafter, normally within two weeks.
5. Henceforth, when an application to strike out the claim is filed, it put into question the crevices of the claim which contain facts of the substantive matter.
6. In turning to the elements or requirements under Rule 7.11, to satisfy an application for interim injunction, the question to ask, is there a serious question to be tried? I must say in the negative. The major relief is clearly admonished as for damages for trespass and destruction to environment to be assessed.
7. No damages can be awarded for damages to environment, trespass etc, if those activities were claimed to have been occurred on a customary land. The ownership issue as to customary land is a prior issue to be determined by a rightful forum. At the moment the land is yet to be determined by any forum having jurisdiction.
8. On the other hand the Defendants had registered part of the land which is subject to dispute. The Claimants have expressed disappointment that the process prior to registration was not brought to their notice. It is now attempt is made to sound objection to a process which had already being done and grant was made on 18^th August 2014. I noted a caveat was filed but subsequently cancelled.
9. Further still there was no evidence of any appeal lodged against the Acquisition Officer’s determination, nor was a claim filed in the High Court for judicial review. However, documentary evidence in respect of registration of the estate is attached to the sworn statement of Mr. Selo dated 12^th August 2019. It showed that the registration of titles is free from any encumbrances.
10. Apparently, the Defendants implied right of ownership to the Perpetual Estate title to that portion of land, gives them better rights than the Claimants.
11. The maps produced by the parties indicating the boundaries and the path the constructed road followed. In my observation they are almost the same, except that the two boundaries from the sea cost met at one point in the hinterland as indicated by the map produced by the Claimants. Whilst that may be so, the boundaries produce by the Defendants indicated that the two boundary lines from the cost run parallel to each other as they proceed inland.
12. That implication is a clear acknowledgement that the registered land is located within the two boundaries. Unfortunately the Claimants have been sitting on their right to challenge the acquisition proceedings in the early stages. Now it’s 4 years and 5 months and soon will be time barred.
13. From those analysis I find there is no serious issue to be tried. And the balance for convenience tilts towards the Defendants. The registered part of the land which the Defendants were identified as owners by the Acquisition Officer must conclude the balance of convenience is in favour of them.
14. I noted the Claimants had referred the issue of land ownership to the Chiefs by a letter dated 13^th May 2017. A reply to that effect had confirmed in May 2018 that Hauwariwari Chiefs Panel will hear it. Until today the chiefs have not hear the case yet. For what reason, that has not been reflected in the materials. It is now more than 4 years.
15. In the final analysis I must refuse to grant reliefs sought under the application for injunctive orders.

Application to strike out

16. For justice to be seen done I must also refuse to make order to strike out the claim, but to adjourn it generally. The reason is that a claim for trespass and damages onto customary land cannot be determined by this court but by a land court having jurisdiction, to determine the prior issue of ownership.
17. I have opted for a leeway approach as a bonus so that parties would agree with this court on direction orders in relation to which forum will entertain the ownership issue in the case, when will it be heard, and the issue of sharing costs be agreed upon by the parties.

Orders:

1. Application for injunctive interim orders refused.
2. Application to strike out the claim refused.
3. Claim is to be adjourned generally until the House of Chiefs determines the issue of ownership of the customary portion of the land. After the decision a party may restore the case by notice within 14 days.
4. Any House of Chiefs within the Constitutional boundary of Small Malaita can preside over the case.
5. And the parties must agree to that particular house of Chiefs. If Hauwariwari house of chief is agreed upon let that be done.
6. Parties must equally meet the expenses of the Chiefs sitting interms of allowances, transport and accommodation. No one party should meet the entire expenses.
7. The House of Chiefs (whatever) is here by ordered to hear the issue of ownership of the land within 4 months from the date of this ruling.
8. Cost is awarded to the Defendants at 60% on standard basis.
9. Adjourn to 12^th August 2021.

The Court.