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Hagert v Pone [2024] SBCA 27; SICOA-CAC 26 of 2023 (25 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. This is an appeal by the appellant against the decision of the High Court (Bird J) given on 6 July 2023. By her decision, her Ladyship, Bird J, ruled that the appellant had not shown that they can bring representative proceedings on behalf of the Mariu Nakmerufunei tribe and therefore, the proceedings which they brought against the respondents must be dismissed.

Brief background

2. The appellants, representing themselves, the Mariu Nakmerufunei Tribe and Nakmerufunei Tribal Association Trust Board Inc brought claims on 27 October 2022 against the respondents for breach of the provisions of the Mines and Minerals Act. The respondents had not filed any defence to the appellants’ claim. Instead, on 23 November 2022, they filed an application for proof of representation pursuant to rule 3.42 of the Solomon Islands Courts (Civil Procedure) Rules.
3. On 24 May 2023, the Court below heard the respondents’ application and on 6 July 2023 the learned judge gave her ruling. The learned judge held that there existed a dispute as to the right to represent the Mariu Nakmerufunei tribe and the appellants have not shown that they are the representative of the Mariu Nakmerufunei tribe. Therefore, the proceedings brought by the appellants must be dismissed. If the appellants wish to file fresh proceeding, it must be in their personal capacities.

Grounds of Appeal

4. Aggrieved by the decision of the learned Primary judge, the appellants brought this appeal, raising eight grounds in support of their appeal. We do not feel it necessary to consider all the grounds in details in view of the conclusion that we have come to in this appeal. Only for the sake of convenience we set out those grounds of appeal hereunder:
   1. The learned judge erred in law and or fact by allowing irrelevant factors to influence the decision to strike out the claimant’s case. Rule 3.42 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“CPR”) solely requires proof of entitlement in custom to represent a tribe in Solomon Islands. Chief Nicholas Hagert and Chief Alfred Guha provided evidence of their entitlement in custom as representatives of the Marau Nakmerufunei tribe. This evidence was duly acknowledged by the Respondents.
   2. Further the judge erred in law and fact in that she considered issues of tribal division as a sole factor to determine entitlement in disregard of the fact that the Appellants were Chiefs appointed under the custom of the tribe, which appointment has not been challenged by the Defendants and in particular Paul Tagao.
   3. The learned judge erred in law and fact in dismissing the entire Claim on the basis of rule 3.42 when the Claimants were also suing in their personal rights as chiefs and members of the tribe.
   4. The learned judge’s Ruling was unreasonable and unsupported by credible evidence. The evidence presented by the Claimants/Appellants clearly established their entitlement as chief, while Mr. Paul Tagao’s statement lacked substantial proof of his appointment according to custom or law. Despite this, the judge favoured Mr. Tagao’s statement over the well-supported evidence of the Claimants.
   5. The learned Judge erred in law and or fact by not carefully comparing the facts and principles in Alex v Kova [2010] SBHC 64; HCSI-CC 434 of 2005 (14 October 2010) with the present case, leading to a misguided interpretation. In Alex v Kova [2010], the appellant was not a chief and had the option to sue in a personal capacity but chose to proceed as a representative. However, in the current case, the Appellants are undisputed chiefs and trustees suing in both representative and personal capacities. Whilst there might be a tribal division, they have the right to challenge the binding effect of the SAA on their tribe.
   6. The learned judge erred in law and or fact by not carefully comparing the facts and principles in Maeke v Pukuvati [2018] SBCA 1, SICOA CAC 5 of 2026 (11 May 2018) with the present case, leading to a misguided interpretation. In Maeke v Pukuvati [2018], though the land was registered, it was owed by tribe and members of the landowning tribe can sue as beneficiary or in their personal capacity.
   7. The learned Judge committed a miscarriage of justice by dismissing the entire proceedings, despite the presence of four other groups of Defendant and serious triable issues yet to be addressed. It is crucial to note that not all Defendants belong to the same tribe as the claimants. Even in their personal capacities, the Appellants have the right to sue the Defendants. The dismissal of the entire proceeding prematurely eliminates any potential resolution for the substantial issue at hand, leaving the matter unresolved and causing an injustice. The judge’s decision fails to address the pending issues and denies the Appellant’s a fair opportunity to seek redress for their grievances.
   8. The learned judge erred in both law and fact in disregarding compelling evidence of the lawful appointment of Chief Alfred Guha and Chief Nicholas Hagert, conducted in accordance with Isabel’s customary practices overseen by the late grand chief, Stephen Mariu Meimana Hula. Instead, the Judge gave undue weight to baseless assertions from Paul Tagao and his minority supporters, undermining established customs. This sets a dangerous precedent, allowing unfounded claims to chiefdoms and eroding the authority of appointed chiefs. Customary law, a recognised and legitimate legal system in Solomon Islands, should be respected unless it conflicts with written laws, human rights, equity or public policies. The Judge’s apparent oversight in evaluating evidence led to misguided interpretation and an unjust outcome. Reconsideration is necessary to uphold customary law’s integrity and achieve a just outcome.
5. We respectfully hope that we are not doing injustice to the appellants by not considering the eight grounds seriatim. We simply do not see the need to do so. As it will become apparent, we are content to dispose of this appeal based on the application of rule 3.42 of the Solomon Islands Courts (Civil Procedure) Rules and the evidence powerfully presented by the claimants/appellants in support of their claims that they are entitled in custom to represent their tribe, the Mariu Nakmerufunei tribe.

Rule 3.42

6. The learned judge relied on rule 3.42 of the Solomon Islands Court (Civil Procedure) Rules as the basis for her decision. Rule 3.42 is in the following terms:
   • “3.42. Any person entitled in custom to represent on community, tribe, line, or group within Solomon Island 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 its own inactive 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.”
7. The burden is on the person who claims to be entitled in custom to represent the community tribe, line or group to establish his entitlement. Those persons in the present case are claimants/appellants.
8. At the hearing of rule 3.42 application, the learned judge correctly intimated that since the application by the first respondents has been filed, requiring the claimants to provide proof of his entitlement in custom to represent the Mariu Nakmerufunei, the Court must determine that issue before any further step in the proceeding may take place. That is the requirement of rule 3.42 of the CPR.
9. At the commencement of the hearing of the first respondent’s application, her Ladyship reiterated the purpose of application. Her Ladyship went on to state:
   • “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. They 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.”

The Claimants’ Evidence

10. During the hearing both parties produced evidence to support their respective positions. The claimants upon whom the obligation to substantiate their entitlement in custom to be Chiefs or Leaders of their Mariu Nakmerufunei tribe, produced evidence by way of sworn statements as well as documents showing conveyance of Authority, known as “ Fa sara gnaka”, in Isabel custom, a customary ceremony of transfer of power, authority, Chieftaincy and leadership from the Tribal Chief, Chief Stephen Mariu Meimana Hula, to his successors, Chief Alfred Guha and Chief Nicholas Hagert. As this evidence is vitally important in this case, we set it out here in full:
    • “ISABEL PROVINCIAL GOVERNMENT
    • MINISTRY OF COMMUNITY AFFAIRS
    • P.O BOX 4, BUALA
    • ISABEL PROVINCE
    • CONVEYANCE OF AN AUTHORITY/ AGREEMENT.
    1. This Conveyance of Authority called; Fa sara gnake (maringe dialect) is made this 9^th day of January 2016
    • BETWEEN:
    • Chief Alfred Guha and Chief Nicholas Harget (successors), of Mariu Nakmirufunei and Mariu Nakmirufunei Tribes.
    • Hereinafter referred to as “Heir’s (of the land & other valuables) of the one part
    • AND
    • Chief Stephen Mariu Memimana Hula
    • Hereinafter referred to as “Descendant (former successor)” (being the recipient) of the other part.
    2. In consideration thereof, this Fa sara ganka, Chief Alfred Guha and Chief Nicholas Harget of Mariu Nakmirufunei Tribe/Clan (referred to as heir) have in accordance with the traditionally acceptable custom of Isabel, handed to the Tribal Chief, Chief Stephen Mariu Meimana (referred to or being the transferee), land and other valuables as a form of thanks giving and appreciation for care, custodianship over the said lands Hovi/Gaghada, Titiligama, Rikhi Toeri customary lands, histories and comforts towards their tribe/clan called Mariu Nakmirufuneu tribe.
    3. In consideration of this customary transaction called Fasara gnaka, from Chief Stephen Mariu Meimana (former successor and tribal chief) and the recipient of food & valuables have willingly accepted the items offered and therefore declared in this custom ceremony that the total rights and authority to care for tribal/clan members, custodianship to their tribal lands and resources, histories and whatever properties owned by their tribe/clan of Mariu Nakmirufunei in the Isabel Islands custom & culture, has from this day, transferred to Chief Alfred Guha and Chief Nicholas Harget as newly authorized and appointed Tribal Chiefs/Leaders as being his total commitment to this custom ceremony.
    4. Names & Signatures of heir and tribal/clan members

5. Name and signatures of descendant (former successor)

6. Witnesses

(i) Chiefs

(ii) Provincial Government Reps

7. This conveyance of Agreement is made on 9^th day of January 2016 at Folo rice farm area/Village, Gama District, Isabel Province in the presence of:

(signed)
Mark Toni
Chief Administration Community Affairs
For Provincial Secretary”

11. In addition to the Fa Sara gnaka and Sworn Statements, the Claimants /appellants also produced a Statutory Declaration signed by Chief Stephen Mariu Meimana Hula on 9/01/2026 under which he declared that the claimants, Chief Alfred Guha and Chief Nicholas Harget are the newly mandated and appointed Tribal Chiefs successors for Mariu Nakmirufunei Tribe. We set out also the Statutory Declaration here:
    • “STATUTORY DECLARATION
    • I Chief Stephen Mariu Meimana Hula of Tausese Village, Gama Districk, Kaloka ward, Isabel Province, Solomon Islands hereby virtue of the authority bestowed and vested upon me by our ancestors as a grand tribal Chief, Elder, Trustee and Head of our Mariu Nakmirufunei tribe.
    • DO HEREBY SOLEMNLY AND SINCERELY DECLARE THAT;
    1. On this 9^th day of January 2016, Chief Alfred Guha and Chief Nicholas Harget were my newly mandated and appointed Tribal Chief successors for Mariu Nakmirufunei Tribe.
    2. By virtue of the worthy custom and tradition of Isabel Province, both of you Chief Alfred Guha and Chief Nicholas Harget duly appointed Tribal Chiefs, Elders and Trustees of the Hovi/Gaghada, Titiligama and Rikhi Toeri Customary Lands as conferred to me by our ancestors and Predecessor and members of Mariu Nakmirufunei.
    3. Mariu Nakmirufunei Tribe of Isabel Province is the adjudged owner in custom over Hovi/Gaghada, Titiligama and Rikhi Toeri Customary Lands.
    4. I, therefore, under my authority in custom vested upon me by my predecessor and members of our tribe as their Tribal Chief, Elder, Trustee in past and present, from this date 09/01/2016 relegate (sic) the absolute rights and authority to care for tribal/clan members, custodianship to our tribal lands and resources, histories and other properties owned by our Mariu Nakmirufunei Tribe.
    • And make this declaration conscientiously believing the same to be true and by the deeds and acts of others.
    • By virtue of the statutory Declaration Act 1835.
    • Signed by the said Chief Stephen Mariu Meimana Hula, (signed)
    • At Tausese village, Gama District, Isabel Province.
    • This 9^th day of January 2016
    • Before me: 9/1/16
    • COMMISSIONER OF OATH”.(signed)
12. The respondents’ case is that the appellants have no standing to bring claims against the respondents. The respondents further stated that the appellants failed to show that they have the authority from the tribe to bring the claims against the respondents. The respondents also stated that it was the same Chief who “signed with” Paul Tagao, that the appellants claimed to have given them authority also.
13. First thing first, Paul Tagao and his co-respondents were the ones who brought the application under rule 3.42 requiring the appellants to show proof of his entitlement in custom to represent his tribe, Mariu Nakmerufunei tribe in HCC 505 of 2022. The respondents brought the application and the appellants did what was required of them, namely to produce evidence which starkly confirmed their authority to represent their tribe, Mariu Nakmerufunei tribe.
14. Paul Tagao filed his Sworn Statement in which he said that he was orally appointed chief by Chief Stephen Hula. However, he may have his Chieftaincy status conferred on him, orally by Chief Stephen Mariu Meimana Hula also, but it does not necessarily follow that Chief Stephen Mariu Nakmerufunei cannot convey or pass on his Chieftaincy authority to another member of his tribe such as Chief Alfred Guha and Chief Nicholas Harget. The evidence in this case is overwhelmingly strong and undisputed in support of the appellants as having the power, authority and the entitlement to represent the interests of the members of the Mariu Nakmerufunei tribe
15. It may well be that Paul Tagao and those members of the tribe who supported him in signing the Surface Access Agreement (“SAA”) are not pleased with the appellants who opposed the signing of the SAA. Paul Tagao’s sworn statement appears to show that. However, that does not alter the fact that the appellant have been clothed with authority in custom which entitled them to represent the members of Mariu Nakmerufunei tribe in HCC 505 of 2022, especially those members who do not agree to the signing of the SAA and who wish to protect their rights on the land in questions. It is not rocket science to ascertain that the faction created between the two groupings in the same tribe stemmed from their differences arising out of the signing of the SAA in connection with the Solomon Islands Resources Company Ltd.
16. With the evidence that was plainly and overwhelmingly available before the learned Primary judge, there is no basis for her Ladyship’s decision to dismiss the appellants’ claim and to suggest to the appellants that they file a fresh proceeding in their personal capacities. There is overwhelming evidence which supports the appellants’ right in custom to represent the members of their Mariu Nakmerufunei tribe.
17. In her judgment the Learned Primary Judge stated that the claimants/appellants “have claimed to be the representatives of the Mariu Nakmerufunei tribe” and that the first and second named claimants “hold themselves as the Chiefs of the Mariu Nakmerufunei tribe”. Those remarks are not supported by evidence. In fact it is contrary to the clear volume of evidence presented at the hearing in the Court below. They did not “claimed to be,” they were in fact appointed to be chiefs to represent their tribe.
18. Rule 3.42, the application of which is central in this appeal requires the court to ensure that a person who claims to be entitled to represent his community tribe, line or group to provide proof of his entitlement in custom before taking any further step in the proceeding. If there is evidence pointing to the person’s entitlement in custom as representative of his tribe community, line/group it would be wrong for a judge to dismiss a person’s claim at the rule 3.42 application since the very purpose of the application is to require him to provide proof of his entitlement in custom of his chieftaincy or his leadership status. See Macke v Pukuvati [2018] SBCA 1.
19. On the opposite side of the scale is the case of Peoko v Bako [2022] SBCA 17, where the claimants/appellants failed to show proof of their entitlement in custom to act as representatives of the owners of the land in question. The court struck out their claim. This court dismissed the appellants’ appeal in that case.
20. In this case, the appellants produced evidence, overwhelmingly showing proof of their entitlements in custom as chiefs and members of their tribe, the Mariu Nakmerufunei tribe and their chieftaincy authority to represent their tribe in their claims against all the respondents. The learned judge was wrong to dismiss the appellants’ claim.
21. The appeal is allowed. The decision of the Court below is set aside. The case is returned to the High Court to be dealt with by another judge.
22. The appellants are entitled to costs to be taxed if not agreed.

Muria P
Wilson JA
Gavara-Nanu JA