Churchill v Toitoona [2020] SBMC 2; Civil Case 02 of 2018 (4 February 2020)

IN THE MALAITA DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT AUKI )
(Civil Jurisdiction)

Civil Case Number 02 of 2018

IN THE MATTER OF: GWAILIKI CUSTOMARY LAND ACQUISTION APPEAL (TELEKOM TOWER SIb>

BETWEEN: EEN: HAGI CHURCHILL
ROSE ANILABATA APPELLANTS

AND: EDDIE TOITOONA

LAWRENCE LANI

DAVID UNA

CHRIS GWALI

FIRST RESPONDENTS

AND: ATTORNEY GENERAL
(Representing the Acquisition Officer)

SECOND RESPONDENT

AND: SOLOMON TELEKOM COMPANY LIMITED
THIRD RESPONDENT

Date of hearing: January 28^th, 2020
Date of ruling: February 4^th, 2020

Appellants appeared in person
First Respondents appeared in persons
No appearance from Second Respondent
No appearance from Third Respondent

RULING ON AN APPLICATION FOR JOINDER OR ADDING PARTIES

1. This is a ruling on an application for joinder by the applicants; Chief Albert Fode and Arthur Takoila of Folangi tribe, seeking to be added as Fourth (4) Respondents in this matter. The application is made pursuant to Rules 3.4 – 3.6^[1].
   
2. I acknowledge that the Appellants in appeal substantive and First Respondents all objected to this application stating their respective basis or grounds in their filed written response and submissions. I had reserved my ruling for today, I now plummet in to consider my reasoning.
   
3. The Applicants’ main ground for seeking joinder is that there is a Claim filed in the High Court, being the registered case HC–CC – No. 448 of 2018, which they submit that it directly hinged on the issue of Gwailiki Customary Land and the Telekom Tower Facility. Hence, they seek leave to allow them to be joined as parties in this acquisition appeal.
   
4. At the outset, I must say that simply filing a civil case in the High Court which pertains to the same issue does not warrant an automatic application for joinder in this Acquisition Appeal under section 66 (1) of the Land and Titles Act^[2].
   
5. This is an appeal against a decision of Acquisition Officer and how the public hearing was conducted, as such, it is incumbent on this Court^[3] to be certain that those who intend to be added or joined as party on appeal must derive their standing from the avenue below, that is to say, the Public Hearing conducted by the Acquisition Officer.
   
6. For reason that this acquisition appeal is brought by the Appellants, the Applicants should demonstrate connection to the Appellants tribe or First Respondents tribe so as to convince the Court why they are genuine party to be accepted on appeal. This view is borne out of the legal notion that appeals are normally brought by aggrieved parties, persons or tribe from avenue or Court below.
   
7. The Applicants in this matter had their own liberty to file an appeal on behalf of their tribe after the determination of Acquisition Officer to comply with the available appeal period, like the Appellant had done in this case. Instead they had failed to do so but proceeded to file a civil Claim in the High Court. Thereon they returned with an application for joinder which is subject in this ruling. As I understood, the timeframe for appeal against acquisition determination has elapsed.
   
8. In my view, until an order by the High Court directing this Court to allow leave for them to be joined or added as a party to this proceeding, they cannot bring themselves into the appeal filed by the Appellants through an independent application for joinder before this Court at this stage.
   
9. As earlier averred, they have the right to file a separate appeal to comply with the appeal period as provided under section 66 (1) of the Land and Titles Act, if they are aggrieved by Acquisition Officer’s determination.
   
10. The danger of allowing such application for joinder on appeal stage is that it will entertain others who have never filed an appeal or were never party to the avenue below (Public Hearing) or those who wish to bypass the appeal ‘out of time’ hurdle^[4]. Thus, to embark this route in my view, will obviously defy the purpose of appeal proper under section 66 (1) of the Land and titles Act, unless on exceptional circumstance where there are concrete evidence to succor such an approach.
    
11. Notwithstanding the existing claim filed in the High Court, the applicant cannot bring their application for joinder at this stage, other than filing an appeal proper, if they are genuine objectors at the Public Hearing below conducted by the Acquisition Officer.
    
12. The Solomon Islands Courts (Civil Procedure) Rules 2007, is a beauty in its own but it has limitation of where it normally apply. Generally, the Civil Procedures Rules applies to claims filed under either category of (A, B or C) and other necessary interlocutory applications. Thus, while it is accepted that it is applicable on matters filed under Land and titles Act with the proper Rules^[5], it sparingly applies on case by case basis when it involves appeal under section 66 (1) of the Land and Titles Act^[6].
    
13. Hence, I might entertain any application for leave to apply for ‘joinder’ if the applicants are additional party to be joined as appellants and represent the same tribe with appellants or clans which forms the tribe that appellants comes from; or to be joined with First Respondent because they are same tribe or clan. But they cannot enter or joined on appeal as a new party, because they have the right to appeal the determination by Acquisition Officer.
14. The First Respondents are the vendors/ lessors as far as the Acquisition Officer determination is concerned and if the applicants are aggrieved then they should appeal the Acquisition Officer’s determination or as earlier stated its procedure.
    

ORDERS

1. For what has now became apparent, I am not incline to accept the application for joinder, henceforth, dismiss or reject the application and orders sought.
   
2. We shall now set a hearing date for Acquisition appeal proper.
   
3. Parties bear their own costs.
   
4. 14 days right of appeal applies.
   
5. Order accordingly.
   

THE COURT

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MR. LEONARD. B. CHITE
Principal Magistrate

Malaita District Magistrates Court

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^[1] The Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Cap 133
^[3] Magistrates Court on Appeal
^[4] At section 66 of the Land and Titles Act (Cap 133)
^[5] Ibid 1
^[6] Ibid 1