Kito v Oita Holdings Co Ltd [2023] SBHC 110; HCSI-CC 238 of 2023 (13 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kito v Oita Holdings Co. Ltd
Citation:
Date of decision:	13 October 2023
Parties:	James Kito v Oita Holdings Company Limited, Oceania Trading company Limited
Date of hearing:	25 September 2023
Court file number(s):	238 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	In light of the above discussion, and by the authority of the Alex v Kova case, the claim of the Claimant filed on 25 May 2023 cannot be sustained and is hereby dismissed pursuant to rule 9.75 of the CPR. Consequently the Claimant’s application for summary judgment is a non-issue but in any event is dismissed. Taking into account the conduct of both parties to this proceedings, I order that the parties shall bear their own costs.
Representation:	Mr James Kaboke for the Claimant Mr Evans for the First and Second Defendants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rules 2007 r 9.75, Stamp Duties Act (cap 126). S 9, Forest Resources and Timber Utilization Act [cap 4] ,
Cases cited:	SMM Solomon Ltd v Axiom [2014] SBCA 34, Simbe v East Choiseul Area Council [1999] SBCA 9, Alex v Kova [2010] SBHC 64,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 238 of 2023

JAMES KITO
(Representing members of his Hanapara Tribe of Kariki Village, Fauro Islands, Shortlands)
Claimant

AND:

OITA HOLDINGS COMPANY LIMITED
First Defendant

AND:

OCEANIA TRADING COMPANY LIMITED
Second defendant

Date of Hearing: 25 September 2023
Date of Decision: 13 October 2023

Mr James Kaboke for the Claimant
Mr Evans Olofia for the First and Second Defendants

RULING

Bird PJ:

1. There are two applications filed by the respective parties to this case. The first application is filed by the First and Second Defendants pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) to dismiss the Claimant’s Claim filed on 25 March 2023. The second application is that of the Claimant for summary judgment under r. 9.57 of the CPR.
2. The Claimant filed a Claim Category A on 25 May 2023 for certain declaratory orders. The relevant facts of this case as discussed by the parties is that the Claimant is a member of the Hanapara tribe of Kariki, Fauro Island, Shortland, Western Province. The First Defendant is a company duly registered under the laws of Solomon Islands. The Second Defendant is also a company duly registered under the laws of Solomon Islands and is engaged by the First Defendant as its contractor. On 6 February 2023, the landowners of Simea and Hanapara clans signed a Supplementary Agreement with the First and Second Defendants to carry out logging on the disputed area. The Claimant had benefitted from the proceeds of logging in the disputed area.

Application for summary judgment

3. With the above facts, the Claimant believes that the First and Second Defendants do not have any real prospect of defending the Claim. The Claimant relies on Rule 9.57 which provides:
   • R 9.57 The Claimant may apply to the court for a summary judgment where the defendant has filed a response or a defence but the claimant believes that the defendant does not have any real prospect of defending the claimant’s claim.
   • R 9.59 A claimant’s application for summary judgment must have with it a sworn statement that –
   1. Verifies the facts stated in the claim; and
   2. States that the claimant believes there is no defence to the claim;
   100. States the specific orders that are sought by the claimant.
4. In support of his application for summary judgment, the Claimant has also filed sworn statement of James Kito. It is submitted by Mr Kaboke of counsel that his client has the locus standi to commence this proceedings and he believes that the First and Second Defendants do not have any real prospect of defending the claim. It is further stated that the First and Second Defendants do not have a valid defence in law. Mr Kaboke of counsel relies upon the case of SMM Solomon Limited and Others v Axiom [2014] SBCA 34 in which the Court of Appeal stated in paragraph 103 that “the correct approach is to consider each claimant as an individual and look at his or her evidence in support”.
5. It is further submitted by Mr Kaboke that his client was authorised by the Chief of their clan to represent the Hanapara tribe and community in their fight against the logging operations on the subject land. His representation is also endorsed by members of his tribe/community. See the sworn statement of James Kito filed on 12 October 2023 at paragraphs 4 and 5 therein.
6. Mr Kaboke of counsel also raised the issue of the Supplementary Agreement signed between the First and Second Defendants and members of the Hanarapa and Simea tribes. It is submitted by counsel that a Supplementary Agreement cannot and should not supersede a Standard Logging Agreement which is a prescribed form under the provisions of the Forest Resources and Timber Utilisation Act (cap 4). It is submitted that the mere signing of a Supplementary Agreement does not comply with the requirements of the Act. It is therefore submitted that the First and Second Defendants do not have any valid defence known in law.
7. In support of his client’s contention, Mr Kaboke of counsel relies upon the case of Simbe v East Choiseul Area Council [1999] SBCA 9, CA-CAC 9 of 1999 in which the Court of Appeal stated inter alia that an omission of a step in the procedure laid down in Part IIA of the Act was held to invalidate the ensuing timber agreement.

Application to strike out

8. In respect of their application to dismiss, Mr Olofia of counsel for the First and Second Defendants says that the Claimant’s claim is frivolous and vexatious on the basis that the Claimants lacks locus standi to commence this proceedings. He relies on rule 9.75 of the CPR in support of his application. That rule provides:

r. 9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

1. the proceedings are frivolous or vexatious; or
2. no reasonable cause of action is disclosed; or

100. the proceedings are an abuse of the process of the court;

The court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.

9. In their application, the First and Second Defendants rely on the sworn statement of Job Minaka and Jensen Levo filed in this case. In paragraphs 2, 3, 4 and 5 of the sworn statement of Job Minaka filed on 21 August 2023, the Claimant has no mandate to represent the Hanapara tribe/community. Mr Minaka is the current chief of the tribe and he did not authorise the Claimant to commence these proceedings.
10. Mr Olofia of counsel also submits that the logging operation of the First and Second Defendant is a lawful operation on the basis of the execution of a Supplementary Agreement between the parties on 6 February 2023. It is therefore submitted by Mr Olofia that his clients do have a viable defence to the Claimant’s claim in law.
11. The sworn statement of Job Minaka also deposed to the fact that the Claimant had benefitted from the proceeds of the logging operation of the First and Second Defendant by way of cash advances totalling SBD$10,000.00. See paragraphs 10 and 11 of the said sworn statement. It is therefore submitted on behalf of the First and Second Defendants that the claim of the Claimant should be dismissed pursuant to rule 9.75 of the CPR.

Discussion

12. I have perused the Claim of the Claimant filed on 25 May 2023 which sought various orders. The statement of case is very general in nature. Apart from merely stating in paragraph 5 that the logging operation of the First and Second Defendants on the disputed land was done without any rights in law, the law that is allegedly contravened is not stated. The pleading in the statement of case is very poor.
13. The other issue that needed determination is the locus standi of the Claimant to commence this proceedings. By the authority of the case of SMM Solomon Limited and Others v Axiom cited above, the court must look at each claimant and his/her evidence in support in order to determine that issue. In this case, the Claimant has alleged to have been authorised by Chief Nelson Rerepe and members of his tribe/community. On the other hand, his first cousin Mr Job Minaka who also claimed to be chief of the same tribe stated he was not authorised. It is therefore evident that there is conflict of information from both sides to this case.
14. When I look at the Claim, the Claimant is suing the First and Second Defendants in his representative capacity. It is noted that the case is instituted not in his personal capacity as a member of the Hanapara Tribe. If he has commenced this proceeding in his personal capacity I will be inclined to adopt the principle enunciated in the SSM Solomon Limited and Others case but this is a case of a representative capacity. There arise the issue of conflict of representation within the same tribe.
15. The case that come to mind on that issue is the case of Alex v Kova - Civil Case No. 434 of 2005. In that case, there was an issue of representation and the court was of the view that if there is a dispute within the tribe it cannot be resolved by a representative action being brought. See paragraph 9 of the decision of the court.
16. In this case, there is a dispute between members of the Hanapara tribe on representation of the tribe. That matter has not been resolved by the parties and therefore it cannot be brought before this court. The other issue is that the Claimant had received a cash advance of SBD$10,000.00 from the logging operation of the First and Second Defendants in the subject land and therefore he has compromised his position and this case.
17. With regard to the issue of the Supplementary Agreement signed by the First and Second Defendants with the landowners on 6 February 2023, that agreement is unenforceable in law due to the contravention of section 9 of the Stamp Duties Act (cap 126). That section provides:
    • s.9 No document executed in Solomon Islands or relating, wheresoever executed, to any property situate in Solomon islands or to any matter or thing done or to be done in Solomon Islands, shall, except in criminal proceedings and in civil proceedings by a Collector to recover any duty or penalty under this Act, be pleaded or given in evidence, or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed.
18. In view of the above provision, the First and Second Defendant, on the face of the document cannot and should not rely of that Agreement. It is unenforceable in law. They are spared because they are the defendants to this case.
19. In light of the above discussion, and by the authority of the Alex v Kova case, the claim of the Claimant filed on 25 May 2023 cannot be sustained and is hereby dismissed pursuant to rule 9.75 of the CPR. Consequently the Claimant’s application for summary judgment is a non-issue but in any event is dismissed. Taking into account the conduct of both parties to this proceedings, I order that the parties shall bear their own costs.

THE COURT
Justice Maelyn Bird
Puisne Judge