Gua v Bae [2022] SBHC 49; HCSI-CC 583 of 2015 (2 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gua v Bae
Citation:
Date of decision:	2 September 2022
Parties:	Lesley Gua, Paul Ania, Boni Raymond Misitana & Harry Kwaikalia v John Bae, Brian Mani, Charles Lauri, Fr. Obed Gwao & Gabriel Augere, Joseph Limei, Wilson Fafale, Brian Ngoli & Gabriel Augere, Samlimsun (SI) Limited, Commissioner of Forests Resources
Date of hearing:	5 July 2022
Court file number(s):	583 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I am satisfied this dispute is still very much alive before the Chiefs for fresh hearing and or before MLC (subject to proper referral). Accordingly, I refuse summary judgment. I award cost against claimants on indemnity basis, for bringing an application that was against the clear evidence - what Counsel Kwana referred to as erroneous and misleading application. I will assess costs.
Representation:	Mr. R Firigeni for Claimants/ Applicants Mr L Kwana for 1st and 2nd Defendants/ Respondents Mr C Fakari’i for 3rd Defendants/ Respondents
Catchwords:
Words and phrases:
Legislation cited:	Solomon Island (Civil Procedure) Rule 2007 R 9.66
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 583 of 2015

BETWEEN

LESLEY GUA, PAUL ANIA, BONI RAYMOND MISITANA & HARRY KWAIKALIA
(Representing Arafiubasi Tribe)
Claimants

AND:

JOHN BAE, BRIAN MANI, CHARLES LAURI, FR. OBED GWAO & GABRIEL AUGERE
1^st Defendants

AND:

JOSEPH LIMEI, WILSON FAFALE, BRIAN NGOLI & GABRIEL AUGERE
2^nd Defendants

AND:

SAMLIMSUN (SI) LIMITED
3^rd Defendant

AND:

COMMISSIONER OF FORESTS RESOURCES
4^th Defendant

Date of Hearing: 5 July 2022
Date of Ruling: 2 September 2022

Mr. R Firigeni for Claimants/Applicants
Mr. L Kwan0a for 1^st and 2^nd Defendants/Respondents
Mr. C. Fakari’i for 3^rd Defendants/Respondents

RULING ON APPLICATION FOR SUMMARY JUDGMENT

1. With leave of the Court, claimants filed amended claim on 1/11/2021. The amended claim seeks relief for the release or payment of royalty monies to claimants. Claimants alleged they are entitled to receive royalty from the land on which logging operations of the 2^nd and 3^rd defendants took place. First defendants granted timber rights to the 2^nd defendants (licensee). Second defendants contracted the 3^rd defendant (contractor) to fell trees from the disputed land under a Form 4 timber rights agreement.
2. Claimants alleged they are entitled to the royalty money, because they own the land on which trees were felled and exported. Claimants refer to that land as “Aigwanoe Binaiano Customary Land (“ABCL”). Claimants also extend the said ABCL to include a portion called Oteneia (“O”). Claimants rely on Land Court decisions made in their favour, from 2015 – 2019.
3. First defendants deny that claimants are the owners of the land under dispute. First defendants called the land under dispute “Bina Gwelabu Customary Land (“BGCL”), inclusive of O. The BGCL/O according to 1^st defendants is where the logging operation took place. First defendants alleged they own the BGCL/O. And they say the ownership dispute is still alive and pending resolution before the Chiefs, in year 2022.
4. First defendants deny that claimants are the true descendants of Arufiubasi Tribe (“AT”). First defendants assert they are the true descendants of AT. And that they (AT) are the true owners in custom of the disputed land.
5. The above is a nutshell outline of the dispute, as I can deduce, from the pleadings and sworn statements. I gathered the following as some of the emerging issues: -
   • (i) Whether claimants or 1^st defendants are the true descendants of AT?
   • (ii) Whether AT (claimants or 1^st defendants) are the owners in custom of ABCL/O or BGCL/O?
   • (iii) Whether AT (claimants or 1^st defendants) are the true owners in custom, hence, entitled to receive the royalty monies payments?
   • (iv) Whether or not the land in dispute is called ABCL/O or BGCL/O and which of these two parties (claimants or 1^st defendants) own that land, for purpose of royalty entitlements?
6. Claimants applied for summary judgment on their amended claim. But that amended claim has given rise to the issues, I discussed above. The issues, I discussed above means, there is a real dispute between claimants and 1^st defendants about the ownership of the disputed land and hence about who is entitled to receive the royalty money. This is not a healthy environment for the Court to enter summary judgment (terminate matter early when there is a real dispute about a material fact (ownership and royalty entitlement) between parties – Rule 9.66).
7. Following are some of the main arguments Counsel advanced at submissions: -
   • (i) Claimants say in 2015, before the East Fataleka House of Chiefs (“EFHC”) they have a favourable decision over the disputed land. Claimants assert 1^st defendants admitted to claimants’ ownership before the EFHC, by signing the Form I – Accepted Settlement. The said Form I is disclosed in evidence. I examined the Form I and the space for 1^st defendants to sign is blank. First defendants deny signing the Form I and deny admitting to claimants’ ownership. Whilst I can see the Form I – Accepted Settlement, I cannot see the decision upon which the Form I - Accepted Settlement was derived. So, I am not sure, whether or not there was a decision/settlement, by the EFHC, that 1^st defendants have subsequently accepted, by completing the said Form I – Accepted Settlement. The purported decision of EFHC was dated 18/11/2015 (the Form I – Accepted Settlement).
   • (ii) First defendants said they were not present before the EFHC. So lodged an appeal to the Malaita Local Court (“MLC”). On the 30/8/2016, MLC awarded equal rights ownership to claimants and 1^st defendants.
   • (iii) Claimants appealed to Malaita Customary Lands Appeal Court (“MCLAC”). Materials showed that it was an appeal by both parties against equal rights decision, by MLC. The MCLAC overturned the MLC decision on the ground of defective referral to MLC. The MCLAC referred the dispute back to the Chiefs. One of the orders by MCLAC says: “The case is remitted back to the Chiefs, either for a fresh hearing, or for a proper referral to be made by the losing party in the Chiefs determination of 18/11/2015”. It must be noted that the decision of the MCLAC was made on a preliminary issue only (defective referral to MLC) and not on the merit of the dispute. The MCLAC decision was dated 9/11/2018.
   • (iv) Pursuant to the MCLAC order, the Fataleka House of Chiefs convened on 20/2/2019. According to claimants, both parties agreed to endorse the Form II - Unaccepted Settlement, in light of the EFHC decision made on 15/11/2015 (refer to paragraph 7 (1) above). There was no fresh hearing. Claimants maintained that 1^st defendants admitted to their ownership by completing the Form II - Unaccepted Settlement in 2019. The 2019 Form II - Unacceptable Settlement is sitting on the 2015 Form I - Accepted Settlement Form – a fact 1^st defendants denied.
   • (v) Following the 9/11/2018 MCLAC orders, the 1^st defendants disputed the 2019 Fataleka House of Chiefs hearing, saying, it was not a proper hearing in that the Fataleka House of Chiefs merely adopted the EFHC decision of 15/11/2015, through the purported adoption of the Form II - Unacceptable Settlement (repeat paragraph 7 (iv) above).
   • (vi) Pursuant to the MCLAC order, the 1^st defendants have referred the dispute to Fataleka House of Chiefs, scheduled for hearing on 25/5/2022.
8. Claimants have filed the amended claim on 1/11/2021. Claimants alleged that the dispute has been finally and conclusively settled by Fataleka Council of Chiefs sitting on 20/2/2019 – where by the Form II - Unaccepted Settlement was adopted. Claimants took the position that this was one of the options ordered in the MCLAC decision of 9/11/2018. First defendants however opted for a fresh Chiefs hearing (the other option) MCLAC ordered on 9/11/2018.
9. Court found great difficulty in understanding Counsel Firigeni’s submission. I do not read in any of the Land Court decisions, a final determination of the disputed land herein. The MCLAC decision of 9/11/2018 did not give a final decision on ownership between the parties. As hinted above, it was a decision made on a preliminary issue only.
10. Court tend to place more reliance on Counsel Kwana’s contention that the MCLAC remitted the matter back to the Chiefs either for fresh hearing by the Chiefs or for a proper referral to be made to MLC regarding the Chief’s decision of 18/11/2015. But I have not read any Chiefs decision dated 18/11/2015, except the Form I - Accepted Settlement, half completed, because 1^st defendants did not sign (repeat paragraph 7 (i)).
11. In the final analysis, I have read 3 major Land Court decisions - (i) 18/11/2015 – by EFHC (Form I - Accepted Settlement), (ii) 30/8/2016 – by MLC (equal ownership award) and (iii) 9/11/2018 – by MCLAC (remittal back to Chiefs or MLC subject to proper referral). I am satisfied this dispute is still very much alive before the Chiefs for fresh hearing and or before MLC (subject to proper referral). Accordingly, I refuse summary judgment. I award cost against claimants on indemnity basis, for bringing an application that was against the clear evidence - what Counsel Kwana referred to as erroneous and misleading application. I will assess costs.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE