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Hona v Sive [2023] SBHC 139; HCSI-CC 322 of 2023 (12 December 2023)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Hona v Sive


Citation:


Date of decision:
12 December 2023


Parties:
John Hona, Geoffrey Rusa, Jenesly Halo, Kukuna Christmas and Rolton Kinio, Calton Gradly, Lerroy Joshua and Kevin Joshua v Samuel Sive and Peter Lolo Ratusia


Date of hearing:
4 December 2023


Court file number(s):
322 of 2023


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Aulanga; Commissioner


On appeal from:


Order:
1. The First and Second Claimants case is entirely dismissed on the grounds of frivolity and for disclosure of no cause of action pursuant to Rule 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
2. Cost to be paid to the Defendants on standard basis.


Representation:
Mr J Duddley for the First and Second Claimants
No Appearance for the Defendants


Catchwords:



Words and phrases:


Legislation cited:
Liquor Act [cap 144] S 3 (3), Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.75 (a) and (b)


Cases cited:
QQQ Holdings Limited v Honiara City Council [2003] SBHC 18

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 322 of 2023


BETWEEN


JOHN HONA, GEOFFREY RUSA, JENESLY HALO, KUKUNA CHRISTMAS AND ROLTON KINIO
(Representatives of Geruana Trust Board & Geruana Tribe)
First Claimants


AND:


CALTON GRADLY, LERROY JOSHUA AND KEVIN JOSHUA
(Representatives of Arovo and Gae Customary Land of Daibangara Tribe)
Second Claimants


AND:


SAMUEL SIVE AND PETER LOLO RATUSIA
(Representatives Marovo Council of Chief)
Defendants


Date of Hearing: 4 December 2023
Date of Judgment: 12 December 2023


Mr J Duddley for the First and Second Claimants
No Appearance for the Defendants

JUDGMENT

Commissioner Aulanga:

  1. The First and Second Claimants commenced proceeding in Category A Claim, seeking the following orders:

Reasons to prefer trial than default judgment

  1. An application for default judgment was filed. On 10th November 2023, the Court abandoned the application and directed that the matter be heard at trial by calling of evidence, taking into account the orders sought in the claim are declaratory orders that ought to be decided not on paper but through calling of evidence. This position was confirmed in QQQ Holdings Limited v Honiara City Council [2003] SBHC 18 where the Court was faced with the issue of whether the Court should hear an application for default judgment for a claim seeking declaratory orders regarding Honiara City Council powers to increase retail liquor fees as ultra vires. In refusing to grant the orders through default judgment and preferring the matter to be decided on trial, Judge Kabui (as he then was) stated at page 3:
  2. The Court then concluded at pages 3-4 as to the appropriate way to decide on the matter:
  3. During the trial, the Claimants called two witnesses namely; Rolton Kinio and Calton Gradly. They have also filed their respective sworn statements on 16th November 2023 in support of their case.

Claimant’s case and evidence

  1. The Claimants’ case is that the Defendant, Samuel Sive, is the Secretary and the Defendant, Peter Lolo Ratusia, is Treasurer of the Marovo Council of Chiefs (“MCC”). There were appointed, as said by the Claimants, by the President of the MCC pursuant to the Constitution of the MCC. Due to allegations of abuse of office and misconduct in office when dealing with conflict of interest land dispute cases, they were terminated by the President. Despite their termination, they continued to act without authority or ultra vires when they represented themselves as Secretary and Treasurer of the MCC when administering and dealing with land cases. This, the Claimants averred as improper and without authority. The Claimants sought orders, inter alia, in the claim for their formal removal from being the executive members of the MCC.
  2. The evidence of Rolton Kinio establishes that on 25th April 2014, the MCC elected these persons as executive members pursuant to 13.1 and 13.2 of the MCC Constitution for a four (4) year term: John Oti Maekera (President), Alex Lokopio (Vice President), Samuel Sive (Secretary) and Peter Lolo Ratusia (Treasurer). Their term in office should end on 25th April 2018.
  3. On 6th May 2016 through written correspondence, the Secretary and the Treasurer were terminated by the President on the grounds of abuse of office for personal gains, misconduct of office in conflict of interest land case no. 1 of 2015 and replicating of MCC official office seal which is a subject of a police case.
  4. He further states that the Vice President died in 2021 and later, the President on 31st March 2022, leaving the executive of the MCC without any office bearer. There was no election for new officer bearers since the death of the President and his vice, and the termination of the other two, being the Defendants. Despite the termination, the already terminated Secretary (First named Defendant) on 2nd June 2023 continued to perform secretarial work by issuing a summon of Notice of Hearing to the First and Second Claimants to attend land dispute cases (Civil Case No. 1 & 2 of 2023) that supposed to be heard in June 2023. They, however, refused to attend the hearing on the ground that the Secretary and the Treasurer were already terminated and have no authority and legal standing to perform the office work of the MCC as advised by their lawyers in exhibited “RK-4” and “RK-5”. Their continued representation as executive members of the MCC, following their termination, was considered as ultra vires and without authority.
  5. Calton Gradly, the second witness for the Claimants states that his tribe has a land dispute case registered as Civil Case No. 1 of 2023 before the MCC. Sometimes in early 2018, the already terminated Treasurer (Second named Defendant) advised his party that the budget to enable the hearing of the land case was $30,025. On 2nd February 2018, his party met with the Treasurer at Mendana Hotel in Honiara and gave him $20,000 as a deposit for the MCC to hear their case. It was agreed that the balance of the total cost would be paid prior or immediately after the hearing. Their case was initially listed as Civil Case No. 3 of 2018 and the hearing was listed for 4th November 2018. Moments leading up towards the hearing, they made enquiries with the late President of MCC about their case who advised them that the Secretary and the Treasurer had been terminated and were no longer working as executive members of the MCC. They were advised to go back to him and ask him to refund or reimburse their money.
  6. In early 2019, he met the Defendant in Honiara and asked for the reimbursement of their money of which only $10,000 was refunded this year, 2023, after he lodged his complaint with the Rove CID police for investigation. He stated that his tribe’s case was listed as Civil Case No. 1 of 2023 at the MCC and had been summoned by the Defendants to attend but they have refused to do so on the belief that the Defendants were acted without any authority or ultra vires when they represented themselves as the executive members of the MCC despite their termination in 2016.

Court’s discussion and analysis

  1. There is no issue regarding the appointment of the Defendants to work as the Secretary and Treasurer of the MCC since 25th April 2014. The pivotal issue in fact rests squarely on the legality of their termination and if so, the effect that it will have on their standing or authority to work as the Secretary and Treasurer of the MCC following their purported termination by the President in 2016. This requires close examination of the relevant provisions of the Constitution of MCC.
  2. Exhibit “RK-1” in Ronton Kinio’s sworn statement is the Constitution of the MCC that provides, inter alia, for the formation of the MCC; the appointment of its inaugurated chiefs and executive members; their duties and functions; their terms in the office and their termination. Let me point out that apart from the formation of the seven (7) Vanua Binangara House of Chiefs under article. 10.1 (sic) of the Constitution through affiliation, it does not have any clause on how the appointment of the executive members of the MCC should be conducted. It does not have any specific clause for procedure or process for their removal or termination from office as well.
  3. Article 4.1 of the Constitution defines Council to mean the Marovo Council of Chiefs established in accordance with article 1 of the Constitution, including its affiliated members, assets and interests. And the Marovo Council of Chiefs under article 4.1 means the body comprising of inaugurated chiefs appointed under article 7 forming the Council of Chiefs.
  4. Article 9.3 provides that the executive members of the MCC shall include the elected officers of the MCC plus seven (7) chairman of each of the Vanua Binangara of the Marovo lagoon area. The elected officers referred to therein are; the President, Vice President, Secretary and Treasurer. This means, the total number of executive members of the MCC is eleven (11).
  5. Article 13 provides for the appointment the President, the Vice President and the officers of the MCC as follows:
  6. Article 10 of the Constitution provides for the termination of the MCC members as follows:
  7. Unfortunately, that article as earlier mentioned did not provide for the process for termination and who should make decision on the termination. I will elaborate more on this later.
  8. Article 14 provides and specifically outlines the duties and functions of the four executive members herein, the President, Vice President, Secretary and the Treasurer. Relevant to the issue at hand for this proceeding, article 14.1 outlines the duties of the President as follows:

Who appoints the Secretary and the Treasurer?

  1. In so far article 13.2 of the Constitution is concerned, the Secretary and the Treasurer were appointed “from within the members of the Council”. Unfortunately, this article does not expressly state who appointed them. Whether the Vanua Binangara or the MCC is a hovering question. There is no explanation in evidence (oral and written) from the Claimants about this obviously critical and decisive point. Unless it is expressly stated in the Constitution of the MCC, the same appointing authority will inevitably has the implied power to terminate them as well.
  2. Premised on close combined reading of articles 13.1 and 13.2 of the Constitution, it shows that except for the President and the Vice President, the appointment of the Secretary and the Treasurer will come from within the members of the MCC. And under article 9.3, as earlier stated, there were a total of eleven 11 executive members of the MCC (inclusive of the President, Vice President, Secretary and Treasurer). I am of the view by reading article 13.2 that the Secretary and the Treasurer were appointed by the MCC as qualified by the terms “from within the members of the Council.” This is another way round of saying their appointment was made by the MCC after suitable candidates have been identified and nominated by the members of the MCC themselves. In the practical way of conducting things, unless it is expressly stated, this can be done at the MCC AGM, ordinary or extra ordinary meetings. However, the important point to note is, they (Defendants) were not appointed by the President lone, but by the members of the MCC through collective decision making on appointment.

Termination of the Defendants by the President

  1. The evidence of Ronton Kinio in exhibit “RK-2” is the termination notice issued by the President on 6th May 2016 for the termination of the Defendant (Secretary), authored in these terms:
  2. A similar letter was also issued to the other Defendant (Treasurer) as follows:
  3. It is clear that the termination was done by the President alone and without the sanction of the MCC. There was no mention in the letter of any meetings or a resolution reached in that meeting by the members of the MCC to sanction the termination of the Defendants based on the allegations stated in the letter.
  4. In this case, I am satisfied that the decision to terminate the Defendants conveyed in the two letters of 6th May 2016 was made by the President himself and not by the MCC as the body that appointed the Defendants. The obvious question now is whether the termination of the Defendants was lawful so that this Court would make a declaration of their purported illegal representation as Secretary and Treasurer of the MCC.
  5. During closing submission, counsel for the Claimants conceded that the Constitution was silent on the powers of the President to terminate the Defendants but he urged the Court to consider that for the good name of the MCC based on the allegations, the Court should intervene and grant the orders sought. I think that is taking one step ahead. This issue can be easily addressed once the Court is satisfied that their termination is properly exercised under the Constitution, before the Court can invoke its jurisdictional powers to grant the reliefs.

Does the President have the power to terminate the Defendants?

  1. A cursory reading of article 14.1 of the Constitution is clear that the President does not have any express power to terminate the other office bearers including the Defendants on his own volition. He can only do so upon consultation and recommendation sanctioned by the MCC within his functions provided under article 14.1 (e) of the Constitution. He cannot by any means do it willy-nilly or by his own volition. It is the appointing authority, herein the MCC, by implied powers has the authority to terminate the Defendants. I find the termination of the Defendants is procedurally improper and is therefore erroneous. The implication arising from this is that this Court’s jurisdiction to grant the reliefs somehow cannot be invoked in the circumstances.
  2. Another issue seemed to appear from the Claimants’ argument is the illegality of the Defendants to hold the position of the Secretary and Treasurer for the MCC after their 4 year term has ended on the 25th April 2018. Due to no appointment of new executive members after their 4 year tenure, the Defendants should no longer be members of the MCC. By implication, they have acted without authority and ultra vires when they continued to assume the roles when dealing with the registration and listing of land dispute cases at the MCC.
  3. Despite the attractiveness of this line of thought, the Claimants’ case, as pleaded in the claim, is not to compel the MCC to appoint new executive members following the end of term of the old executive members, but rather it is a case seeking declaratory orders for the named Defendants lack of authority and standing to represent themselves as executive members of the MCC following their termination. That is all the more reason that the Claimants preferred to commence this proceeding against only the two named Defendants but not against the other executive members of the MCC.
  4. Based on those factors and as reasons for decision, this clam must be entirely dismissed on the grounds of frivolity and that there is no reasonable cause of action disclosed against the Defendants pursuant to Rule 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007 so much so to warrant this Court to intervene for the grant of the reliefs sought. Costs to be paid to the Defendants on standard basis.

Orders of the Court

  1. The First and Second Claimants case is entirely dismissed on the grounds of frivolity and for disclosure of no cause of action pursuant to Rule 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
  2. Cost to be paid to the Defendants on standard basis.

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

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