IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of The High Court of Solomon Islands (Maina J)	

Court File Number:	
Civil Appeal Case No.05 of 2016 
(On Appeal from High Court Civil Case No. CC 474 of 2013)       

Date of Hearing:
	
7 May 2018	

Date of Judgment:
	     
11 May 2018	

The Court:	
Goldsbrough P 
Hansen JA
Young JA

Parties:

fIRST aPPELLANT:

SECOND APPELLANT:

RESPONDENT:	

DOREEN MAEKE

ROSELYN DETTKE

AND

PITA PUKUVATI, VINCENT KURILAU, SAM KULOKO, CHARLES KEKU CHILIVI, DAMASO ROKO
	
ADVOCATES:

APPELLANT:

RESPONDENT:

L. Ramo

W. Rano	

KEY WORDS:	   
Standing to bring proceedings in custom and as a beneficiary of a trust

ExTempore/reserved:
	
RESERVED	

ALLOWED/DISMISSED
	
ALLOWED	

PAGES	
1- 8

JUDGMENT OF THE COURT

Introduction

1.	The first respondents are the owners of a perpetual estate 191-064-01.  The land is leased to the Commissioner of Lands and the Solomon Islands Water Authority draws water from this land known as the Kongulai water source.

2.	The appellants issued proceedings against the respondents alleging that as trustees for the beneficiary tribes they had failed to properly distribute money earnt from the lease to the beneficiaries.  They sought and obtained, in December 2013 an ex parte interim injunction which prevented money being to be paid by the Water Authority to the respondents and required that money paid to the 1st and 2nd appellants. They sought orders they be appointed trustees.  Further orders were made relating to disclosure of previous payments made to the respondents.

3.	In March 2014 the respondents applied to set aside the exparte orders and put the claimants to proof that they were representatives of relevant tribes and able to bring these proceedings: (R3.42 CPR).

4.	The respondents’ applications were heard and the High Court (in March 2016) gave judgment that neither appellant had standing to bring such a claim given neither appellant had proved they were entitled in custom to represent the tribes who owned the Kongulai water source.  The Judge therefore discharged the injunction and struck out the claim.

5.	Costs were ordered on an indemnity basis.

The Appeal

6.	The appellants’ case on appeal is that they are both members of tribes who own the Kongulai water source.  

They say that have been authorised by the chiefs of their respective tribes to represent their tribes with respect to this land and to bring proceedings on behalf of these tribes.   They also say they have significant support from members of the relevant tribes.  They say therefore they have sufficient interest in the land and the actions of the trustees to bring proceedings to challenge the trustees’ actions.  The Judge was wrong, they say, to find they had no standing to bring the claim.

7.	The respondents’ case in the High Court and in this Court was that while Doreen Maeke was a member of one of the tribes who were entitled to share in the money earned from the water source she was not entitled to sue the trustees as a representative of any tribal owner.  She was not appointed as a representative by any tribal custom.  And so she had no standing to bring these proceedings. 

8.	As to the second appellant Roselyn Dettke they say she is not a member of any tribe who has any interest in the land and therefore has no standing to bring these proceedings.

Decision Appealed 

9.	The Judge expressed the issue of standing to bring the claim in this way “This issue of standing relates to entitle (sic) in custom by First and Second claimants to represent the owners and beneficiaries of Kongulai water source land, perpetual estate no. 191-061-1 in the claim”

10.	The Judge focused on Rule 3.42 the Civil Procedure Rules which provides:

“Any person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing the community, line or group, but the Court, on the application of any party, or on it’s own initiative may require that person to provide proof of their entitlement in custom to act as such a representative before any further step in the proceeding may take place”.

11.	The Judge concluded that although there was evidence that previous paramount chiefs of the Gaubata Hanigoana subtribe and Kakau tribes had conferred authority on the 1st and 2nd appellants there was no evidence that this confirmation of authority was according to custom.  He preferred the evidence of the respondents who said it was for tribal members to decide who represented them.  Further the Judge said that the Kakau tribe was not a beneficiary of the Kongulai water source.

12.	The Judge said “There is no dispute that land in Kongulai water source lease Perpetual Estate No. 191-06-1 is owned by Taonavua and Ganigoana tribes of Gaubata.  And so given Roselyn Dettke was a member of the Kakau tribe she had no interest to the Kongulai water source”. 

Discussion

13.	The evidence presented by the appellant in the High Court showed that in 1980 five men made a declaration that they had made an agreement to lease with the Commissioner of Lands.  The land concerned included the Kongulai water supply land.  As a result of that agreement the land became registered land.  The five men became the joint owners of the perpetual estate as trustees of the land owning tribes.

14.	The declaration said;

“All the beneficial interests in the land to be registered are held by all the members of Gaubata and Kakau lines of Tasahe area.

No persons other than members of Gaubata and Kakau lines of Tasahe area have any beneficial interest in the land”.  

15.	The five men acknowledged they held the land as “trustees for members of the Gaubata and Kakau lines”. Subsequently the land was formally vested in the 5 named trustees.  

16.	Roselyn Dettke’s right to represent any beneficiary of the Kongulai lease was challenged because she was not a member of any tribe with a beneficial interest.  Mrs Dettke was it seems a member of the Kakau tribe which, the respondent’s maintained had no beneficial interest in the land.  

Given the 1980 order setting up the ownership of the land specifically includes the Kakau tribes the Judge was wrong to reject her standing on the basis that she had no interest in the land and therefore could not represent any tribe with an interest in the land.  We note the claim by counsel for the respondents that the Kakau tribe no longer have an interest in the land.  Whether that is correct or not there was no such evidence before the High Court, nor before this Court.

17.	The appellants’ claim was that their right to represent the tribes arose from the authority of two chiefs and from a document which had the signature of a number of members of the Kongulai water source owning tribes supporting them.  They exhibited a declaration by Savino Laugana (now deceased) said to be Paramount Chief of Gaubata Hanigoana and Onesinao Resinunu said to be the Paramount Chief of the Kakau tribe appointing the appellants as representatives of their tribes to bring any relevant legal proceedings affecting their tribes. They claimed these appointments were in accordance with custom.

18.	The Judge in the High Court concluded that the authority of the now deceased chiefs did not provide evidence of the appellant’s entitlement in custom to act for the tribes in a dispute about the Kongulai water source.  The respondents evidence that the chiefs had no authority in custom to make such appointments and that the members of each tribe decide who would represent them in court proceedings, was accepted by the Judge.

19.	Neither the appellants nor respondents presented evidence in the High Court from the Chiefs of the relevant tribes as to the appropriate custom.  The Judge in the High Court was therefore left with competing claims from the litigants.  He gave no reason why he preferred the position of the respondents.  There was no clear, independent evidence that either side were correct.  In those circumstances the Judge should have required the parties to provide evidence from the chiefs of the tribes relevant custom.

20.	There are other difficulties with this case.  In their pleadings  the appellants said they brought the proceedings as representatives of the relevant tribes.  However they also asserted in the documentation filed in support of the claim, that the proceedings were personal in the sense that as beneficiaries under the trust they were entitled to challenge the actions of the trustees.  The Judge in the High Court did not consider whether this interest gave the appellants standing.

In Summary

21.	(a)	The Judge was wrong to reject Roselyn Dettke’s interest as a beneficiary in the land as a member of the Kakau tribe.

(b)	The Judge was wrong to reach a conclusion as to custom relating to representation in these proceedings without adequate evidence to do so.

(c)	The Judge failed to consider what personal rights, if any, the appellant’s may have had as beneficiaries to bring these proceedings.

22.	Given these circumstances we are satisfied the proper course is to allow the appeal and set aside the order in High Court and return the case for further hearing in that Court.

23.	The appellants claims will need to be repleaded with, if desired, a separate specific claim based on the personal rights of beneficiaries.  If the claim in the alternative is based on representative rights then it must be pleaded and   the Court would ordinarily expect the chiefs of the respective tribes to give evidence as to the relevant customs.  

24.	Before we set out the consequential orders we wish to make some observation about the appellant’s claims.  If standing had been established the best the appellants could have expected was an enquiry directed by the Court into the actions of the trustees.  The evidence of the appellants in the High Court was well short of establishing improper conduct by the trustees justifying removal. Nor was there any basis to appoint the appellants as trustees.  

25.	As to the trustees we accept that it seems probable each of the original trustees were appointed as a representative of a particular tribal interest in the land.  As we have noted the Kakau tribe has such an interest and so would be entitled to such a representative. However once a representative is appointed as a trustee then their obligations are to act properly and fairly toward all beneficiaries from all the tribes.  And so the suggestion that the only trustee accountable to Doreen Maeke is the trustee appointed from her tribe is not correct.  All trustees are accountable to all beneficiaries.

26.	Finally we suggested to Counsel for the respondents that a published yearly report and set of accounts provided to all beneficiaries from the respondent trustees irrespective of whether any payments are received by the trustees may go some way to satisfy at least some beneficiaries concerns.

27.	We therefore make the following orders: 

(a)	The appeal is allowed and the orders of the High Court are set aside including the order as to costs.

(b)	Costs to be paid by the respondents to the appellants.

(c)	The proceedings are returned to the High Court for hearing.

………………………………………………
Goldsbrough P

………………………………………………
Hansen JA

………………………………………………
Young JA