Hagert v Pone [2023] SBHC 44; HCSI-CC 505 of 2022 (6 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hagert v Pone
Citation:
Date of decision:	6 July 2023
Parties:	Chief Nicholas Hagert, Chief Alfred Guha, Ernest Kolly and Nicholas Maelana v Josaiah Pone, Magreth Gilbert, Lyneth Gigini, Emmlyn Oliver, Terence Gigini and Brized Resimana, Harold Trasel, Kenneth Oliver, Wanye Manutai, Annette Mathias and John Trasel, Walter Rotumana, Ethel Seni, Bareth Sandy, Dilys Agiu, Alison Meiara, Jerry Siota and Richard Bosamata, Solomon Islands Resources Company Limited, Attorney General
Date of hearing:	24 May 2023
Court file number(s):	505 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I dismiss these proceeding with cost.
Representation:	Mr Wilson Rano for the Claimants/Respondents Mr Steve Lalase for the first defendants/Applicant Mr Wanye Ghemu for the Second Defendant Ms Ms M Tahu for the Fourth Defendant No appearance for the Fifth Defendants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2008, r3.42
Cases cited:	Alekoti Alevangana, Alex v Isaac Kova 434 of 2005, Maeke v Pukuvati [2018] SBCA 1,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 505 of 2022

BETWEEN

CHIEF NICHOLAS HAGERT, CHIEF ALFRED GUHA, ERNEST KOLLY AND NICHOLAS MAELANA
(Representing themselves, Mariu Nakmerufunei tribe and Mariu Nakmerufunei Tribal Association Trust Board Inc)
Claimants

AND:

JOSAIAH PONE, MAGRETH GILBERT, LYNETH GIGINI, EMMLYN OLIVER, TERENCE GIGINI AND BRIZED RESIMANA
(Members of the Mariu Nafmerufunei tribe and representing themselves)
First Defendant

AND:

HAROLD TRASEL, KENNETH OLIVER, WANYE MANUTAI, ANNETTE MATHIAS AND JOHN TRASEL
(Posamogo tribe)
Second Defendant

AND:

WALTER ROTUMANA, ETHEL SENI, BARETH SANDY, DILYS AGIU, ALISON MEIARA, JERRY SIOTA AND RICHARD BOSAMATA
(Representing Lodusapeo Vihhuviunagi Tribe)
Third Defendant

AND:

SOLOMON ISLANDS RESOURCES COMPANY LIMITED, ATTORNEY GENERAL
Fourth Defendant

Date of Hearing: 24 May 2023
Date of Decision: 6 July 2023

Mr Wilson Rano for the Claimants/Respondent
Mr Steve Lalase for the First Defendant/applicants
Mr Wanye Ghemu for the Second Defendants
Ms M Tahu for the fourth Defendant
No appearance for the Fifth Defendant

RULING ON APPLICATION PURSUANT TO RULE 3.42 OF CPR

Bird PJ:

1. This is a case whereby the Claimants are suing the various named defendants for alleged breach of certain provisions of the Mines and Minerals Act. No defences have been filed at this stage because a pending issue needs to be determined by the court. That issue relates to the application of the first defendants filed on the 23^rd November 2022 pursuant to rule 3.42 of the Solomon Islands Courts (Civil Procedure) Rules 2008. By virtue of that rule, this court must determine the issue before any further step in the proceeding may take place.
2. It is the first defendants position that the claimants must show proof to this court that they are entitled to represent the Mariu Nakmerufunei tribe to commence this proceeding. There were numerous sworn statements filed in this cause by both the claimants party as well as the first defendants party. It is obvious from all of the sworn statements filed that the claimants and the first defendants are all members of the Mariu Nakmerufunei tribe. The issue therefore is who has the mandate and authority to represent the said tribe relating to tribal issues. I have also observed that various chiefs who are bestowed with chiefly titles are personally involved claiming the same chiefly rights and titles on themselves. In effect, they are working against each other at the expense of their own tribal members.
3. It is also obvious from the contents of the numerous sworn statements that there is division between the tribe. The reason being that the claimants supports a different entity to carry out mining on the Mariu Nakmerufunei customary land and the first defendants on the other hand had signed a Surface Access Agreement (SAA) with the fourth defendant on the 27^th April 2022. How could then the two divisions work together for the benefit of the landowners if they are at each other’s throat.
4. I do not think it is the function of this court to choose a faction of a tribe over another faction of the same tribe as the correct sets of representatives. That in my view would the extend the provisions of r.3.42 to far ahead. It is obvious from the numerous sworn statements filed as well as the claimants’ claim that the claimants have claimed to be the representatives of the Mariu Nakmerufunei tribe. The first and second named claimants hold themselves up as the chiefs of the Mariu Nakmerufunei tribe.
5. On the contrary, an appointed chief, Mr Paul Tagao had filed a sworn statement on the 23^rd November 2022 in support of the first defendants position. He deposed to in that sworn statement that he is the chief of the Mariu Nakmerufunei tribe. He stated in paragraphs 5 and 6 of his sworn statement that the chiefly title was bestowed on him and one Seafasi Koha in about 1986 by Chief Steven Hula. That chief could have been the same chief that bestowed the same title to the first and second named claimants on the 9^th January 2016. See the document marked “NM10” annexed to the sworn statement of Nicholas Maelana filed on the 27^th October 2022. I can therefore say that I am not the appropriate forum to decide which of the named chiefs are the appointed chiefs of the Mariu Nakmerufunei tribe.
6. I have had the opportunity to read the ruling of this court in the case of Alekoti Alevangana Alex v Isaac Kova - Civil Case No. 434 of 2005 and I can say that the issues raised in this case are similar to those raised in that case. There was a division of tribal members within the same tribe in CC43/05 and the court was of the view that because of that division, the claimants could not be said to have represented the whole tribal group or community. The claimants can only represent the faction that supported him, nothing more. That is exactly the same position as in the present case. I adopt the statement of the court in paragraph 9 of its decision dated 14^th October 2010. I can therefore say that there is a dispute in place between the parties but the dispute between the parties cannot be resolved by a representative action being brought.
7. I have also taken note of the various decision of this court and the Court of Appeal on r.3.42 of the CPR. I have noted especially the case of Maeke v Pukuvati [2018] SBCA 1; SICOA- CAC 5 of 2016 and the principles stated therein. I am able to distinguish that case from the present on the basis that the land was registered land and the appellants were not suing in their representative capacity but as beneficiaries through their registered trustees.
8. So at this very early stage of the proceeding, it is at the claimants’ option to file fresh proceeding and to sue in their personal capacities rather than suing in their representative capacity. For the reasons given, I dismiss these proceeding with cost.

THE COURT
Justice Maelyn Bird
Puisne Judge