Jonah v Attorney General [2023] SBHC 129; HCSI-CC 539 of 2017 (7 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Jonah v Attorney General
Citation:
Date of decision:	7 December 2023
Parties:	Chief Alosi Jonah & Jerry M Pakivai v Attorney General, Rose Piko, Heather Haro, Nesta Masolo, Graeme Sogabelama, Tozen Leokana v New Venture Company Limited, Chief Downton Newman, Jimson Tana Dagnal Derevake and Derald Daniel
Date of hearing:	7 December 2023
Court file number(s):	539 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	1. The Applicants’ application to reinstate the application for contempt of court is dismissed pursuant to Rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for an abuse of the Court’s process. 2. Cost to be paid to all the Defendants/Respondents on standard basis.
Representation:	Mr G Muaki for the Claimants No Appearance for the First Defendant Mr L Kwaiga for the Second and Third Defendants Ms S Avicks for the Applicants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r9.67-9.70, r 9.75 (c)
Cases cited:	Pa’asi v Hero’au [2008] SBHC 59, Kito v Oita Holdings Co Ltd [2023] SBHC 110, Alex v Kova [2010] SBHC 64

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.539 of 2017

BETWEEN

CHIEF ALOSI JONAH & JERRY M PAKIVAI
(Representing the members of Volaikana Tribe, South Choisuel)
Claimants

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands and Registrar of Titles)
First Defendant

AND:

ROSE PIKO, HEATHER HARO, NESTA MASOLO, GRAEME SOGABELAMA, TOZEN LEOKANA
Second Defendants

AND:

NEW VENTURE COMPANY LIMITED
Third Defendant

AND

CHIEF DOWNTON NEWMAN, JIMSON TANA DAGNAL DEREVAKE AND DERALD DANIEL
(Representing the members of Volaikana Tribe; South Choisuel, Choisuel Province)
Applicants

Date of Hearing: 7 December 2023
Date Ruling: 7 December 2023

Mr G Muaki for the Claimants
No Appearance for the First Defendant
Mr L Kwaiga for the Second and Third defendant s
Ms S Avicks for the Applicants

RULING

Commissioner Aulanga:

1. The Claimants are representatives of the Volaikana tribe of South Choiseul. They commenced this proceeding with a claim in Category C filed on 7^th November 2017, effectively challenging the registration of an island called Robroy, registered as PE No. 051-015-1. That registered estate is from their locality in South Choiseul. The proceedings continued and reached a stage that an application for contempt of court was filed by the Claimants. However, on until 24^th August 2023, the Claimants instead discontinued the entire proceeding against all the Defendants. A Notice of Discontinuance to formalise the termination of the proceeding was filed on that same day and personally signed by the named Claimants.
2. The reasons to discontinue the proceeding was based primarily on the decision of the Court of Appeal Case No. 22 of 2022 that ruled on the ownership of the disputed island which has an impact on the validity and survival of their claim with the pending contempt application, coupled with the need for them to reconcile with the Second Defendants so that their disputes can be amicably resolved. The reasons for the discontinuation were explained in Exhibit “DD 1” of Derald Daniel sworn statement filed on 15^th June 2023.

Application to reinstate the contempt of court proceeding

3. The Applicants, being, third party to this proceeding, now filed an application for joinder on 15^th June 2023. While that application was yet to be heard, the matter was discontinued on the 24^th August 2023.
4. The Applicants, purportedly, members of the Claimants’ Volaikana tribe, had disagreed with the discontinuation of the matter and so they filed an application on 12^th October 2023 for leave to reinstate the application for contempt of court which has been discontinued in the proceeding. The application was supported by sworn statement of Derald Daniel filed on 15^th June 2023 and the Responsive sworn statement of the same witness filed on 6^th December 2023. On 24^th November 2023, I directed that the matter be heard on 7^th December 2023 with directions for filing of required documents to necessitate the hearing.
5. The Claimants (now Respondents) filed the sworn statements of Chief Jonah Alosi, Jerry Pakivai, Loster Raukana, Kevin Vaikesa and Edwin Tuku, all filed on 1^st December 2023. Another sworn statement of Chief John Kokoro filed on 23^rd November 2023, was also relied on by the Respondents (formerly Claimants). The other Respondents did not file any responses and evidence relying on the purported belief that it was only necessary that the Claimants be answerable to the application.
6. The nature of this application can be conveniently condensed on these two main issues. First, whether or not the Applicants have the capacity to represent the Volaikana tribe for this proceeding and second, whether the Applicants can reinstate the application for contempt of court filed in the proceeding.

The parties’ respective cases and evidence

7. I have had the opportunity to read the sworn statements of the Applicants and the Respondents. Much that have been raised were cross denials of their rights of representation and standing to represent the Volaikana tribe in this proceeding. For example, the named Applicant Daniel’s evidence in his sworn statements filed on 15^th June 2023 made reference to his tribe’s decision made on 7^th June 2023 in a Minute annexed as “DD-3” for the Applicants to replace the Respondents for continuity of the proceeding. But then the Respondents produced evidence at paragraphs 8, 16 and 19 of the sworn statement of Chief Jonah Alosi filed on 1^st December 2023 stating that the Applicants were from Geva clan, a matrilineal clan different to their tribe, which is uncustomary to represent their Volaikana tribe in the proceeding. The other supporting evidence of the Respondents in the sworn statements of Jerry Pakivai, Loster Raukana, Kevin Vaikesa and Edwin Tuku also made similar imputations showing the lack of standing of the Applicants to represent them in this proceeding.

Discussions

8. In this proceeding, it is clear that there was an internal dispute or disagreement between the parties themselves as to the standing of the Applicants in custom to represent the Volaikana tribe in the proceeding. The net effect of the evidence adduced in the respective sworn statements of the Respondents showed in clear terms a conflict of representation from both sides regarding their respective standing in custom to reinstate and litigate the matter. The intention of the Applicants is to reinstate the matter so that they would represent their tribe not in their personal but in a representative capacity proceeding. In Pa’asi v Hero’au [2008] SBHC 59 referred to by both counsels, the Court (at page 5) clarified the issue of a person’s standing in custom to represent the community, clan or tribe in a proceeding in these manner:
   • “When therefore there is a reference to custom as in Rule 3.42, it is understood that it relates to the traditional way of doing things in the community or tribe as distinct from the provisions of or expectations of the common law, or received English law.
   • In traditional societies or communities such as those in the Solomon Islands and elsewhere where customs as described above are recognised in the law, what then may entitle a person in custom to represent or speak for or on behalf of a community or tribe or line? There can be no dispute that the position held by the person within the community is critical to determining such entitlement. This position may be conferred by circumstances of birth, by achievement within the community or by blood ties, or indeed by all three.”
9. Since there is evidence showing conflict of representation, it now enters an arena of customary enquiry that raises an issue of whether this Court has the power to enquire into matters of custom for the purpose of deciding the standing of the party who should represent the Volaikana tribe in Court. In James Kito v Oita Holdings Company and Others SBHC CC No. 238 of 2023, the Court when dealing with a summary judgment hearing was faced with inter alia, a similar issue of whether the Claimant has the authority to represent their Hanapara tribe in the light of conflicting information produced by the Defendants of the same tribe, effectively disputing the authorisation and standing of the Claimant in the proceeding. Justice Bird then ruled correctly in my view that such a dispute cannot be brought to this Court. In so saying, she echoed at page 4 “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 to this Court.” This decision in effect reaffirms the decision taken by the Court in Alex v Kova HCSI CC No. 434 of 2005 on the issue of representative action proceedings.
10. Based on those grounds and precedents, I do not see this Court can reinstate a matter that has been tainted with conflict of representation by the parties herein. This Court by statute is not a proper Court to undertake a customary inquiry to determine who should represent the parties if leave is to be given to reinstate the matter.
11. On the second issue and perhaps the crucial one is whether the Applicants can reinstate the application for contempt of court filed in this proceeding. This is somewhat bizarre since it in effect it calls for reinstatement of an application that naturally dies in the entire proceeding that has been discontinued by the Respondents on the 24^th August 2023. Instead of asking for leave to revive the claim, the Applicants decided to bypass it and confined their case to reviving the interlocutory application which is unheard of or unknown in law. The appropriateness of the application is that the Applicants should seek leave to revive the claim that has been discontinued. That is the main hurdle the Applicants, as a matter of procedure, should overcome. Once this is done, the reinstatement of the interlocutory proceedings can naturally follow suit.
12. A plain reading and construction of the Rules governing discontinuation of proceedings in our jurisdiction, it particular Rules 9.67 - 9.70, only afford the Claimant the right of reinstatement of the claim upon leave from the Court. There is no equivalent provision applicable to a third party, herein the Applicants, the right to reinstate the matter. For this case, the Applicants have asked this Court to reinstate the matter which is another way round of asking this Court to read into what the law does not provide. Premised on this, it is my view, that the application is grossly misconceived.
13. During the course of oral submission, counsel for the Applicants said that her clients had filed a matter registered as HCSI CC No. 500 of 2023 involving more or less the same subject matter in this proceeding. This Court then enquired whether the reinstatement of this proceeding would cause an undue result of duplicating the proceeding. She sensibly conceded. By implication, a reviving of this matter would amount to a duplicity of the proceeding which is a ground for dismissal of proceeding.
14. This application must be dismissed on the grounds of an abuse of the Court’s process pursuant to Rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 with costs against the Applicants to be paid to all the Respondents on standard basis.

Orders of the Court

1. The Applicants’ application to reinstate the application for contempt of court is dismissed pursuant to Rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for an abuse of the Court’s process.
2. Cost to be paid to all the Defendants/Respondents on standard basis.

BY THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court of Solomon Islands