PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2010 >> [2010] SBHC 115

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Tsuki v Australian Resource Management Pty. Ltd [2010] SBHC 115; HCSI-CC 274 of 2007 (27 May 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)


Civil Claim No. 274 of 2007


BETWEEN


MARTIN TSUKI
Claimant


And


AUSTRALIAN RESOURCE MANAGEMENT PTY. LIMITED
First Defendant


And


JOEL PADA and ALLEN MATIVA
Second Defendants


And


HEINZ KOGA, JACK BANA, MAX LUA AND
KOLOULA REGION RESOURCE OWNERS COMMITTEE
Third Parties


Mr A Hou for Claimant
Mr Sullivan QC and Mr Kama for Defendants


Date of Hearing: 18th May 2010
Date of Judgment: 27th May 2010


Judgment


  1. Normally it would be useful early on in a judgment to indicate the matters and issues before the court. However, in this case, in order to ascertain what is actually before the court it has been necessary to review the whole file. What seems to have happened is this:-

1) 27/7/2007 Writ issued (this was under the "old" rules)


2) 30/7/2007 Appearance filed


3) 14/9/2007 Further and better particulars of claim filed


4) 25/10/2007 Application for interim injunction filed and listed for hearing on 6/12/2007. It appears service was not properly effected and hearing adjourned to 7/2/2008


5) 8/11/2007 Defence filed


6) 7/2/2008 Hearing further adjourned for mention to 28/2/2008


7) 28/2/2008 Leave to issue 3rd Party Notice, leave granted to amend the Claim, application adjourned 13/3/2008


8) 13/3/2008 Adjourned to 22/5/2008


9) 21/5/2008 Amended Claim with additional Defendants


10) 22/5/2008 Adjourned for service (of amended Claim) 19/6/2008


11) 19/6/2008 Adjourned


12) 3/7/2008 3rd Party Notice Filed


13) 30/7/2008 3rd Party Defence


14) 28/8/2008 Adjourned sine die "agreement to refer to Chiefs"


15) 2/4/2009 Application for interim injunction


16) 8/4/2009 Amended Claim filed


17) 23/4/2009 Adjournment to serve 2nd Defendant


18) 7/5/2009 Adjournment following order to add parties as 2nd Defendants


19) 26/5/2009 Mention


20) 9/7/2009 Mention


21) 23/7/2009 Order for sworn statements by13/8/09 and 31/8/09 listed for directions as to hearing on 17/9/09


19) 15/9/2009 Application to strike out filed on basis of defective pleadings and as showing no reasonable cause of action and as an abuse of the process


20) 17/9/2009 Mention and adjournment to 22/10/09


21) 22/10/2009 Order for sworn statements


22) 18/11/2009 Order made


23) 19/11/2009 Unless order perfected for sworn statements (by 3/12/09)


24) 8/12/2009 Sworn statement by Claimant filed


25) 8/12/2009 Application to strike out (failure to comply with Order 19/11/09)


26) 10/12/2009 Time to comply with No. 23) above extended to 12/2/2010


27) 18/2/2010 Adjourned for hearing


28) 18/5/2010 Hearing


  1. From the above it can be seen that there are in fact four apparently unresolved applications before the court. The first is item number 4) the application for an interim injunction filed 6th October 2007. The second item is number 15) the "second" application for an interim injunction. The third item is the First Defendant's application at number 19), the application to strike out the claim because of the defective pleadings and because the claim shows no reasonable cause of action and is an abuse of the process. The fourth and final item is at number 25) the application to strike out for failure to comply with the order of 19th November.
  2. I can deal with the last one quite quickly. If the application has not already been dismissed or withdrawn I make an order dismissing it now. I do so on the basis that the time for compliance set out in the November 19th 2009 order (item No. 23)) was extended by the court on 10th December 2009. The sworn statement of the Claimant was filed before the expiry of the "new" time limit set by the court of 12th February 2010. In fact, somewhat bizarrely, the sworn statement seems to have been filed before the application to strike out was filed (by an hour) but certainly before the hearing on 10th December.
  3. I can also deal with the first item. That must have been superseded by the application lodged on 2nd April 2009 (item No. 15)). The latter application is somewhat more extensive in scope and the former must have been subsumed into it. If not, and for the avoidance of any doubt, I formally dismiss the application for an interim injunction filed 6th October 2007.
  4. That leaves the Claimants application for an interim injunction filed 2nd April 2009 and the Defendants application to strike out filed 15th September 2009. The parties were unable to agree what should be dealt with first and so I decided they would be heard together.
  5. In dealing with the Defendant's application to strike out I bear in mind that it is not necessary for the Claimant to show he has a cast iron case or even that he will, on the balance of probabilities, succeed in his claim. All the Claimant has to do is show that there is an issue or there are issues for the court to consider, questions to be decided.
  6. Having received evidence and heard submissions on both applications, I propose to deal with the application to strike out first. My reasoning is this. If I find for the Defendants then I need not consider the application for an injunction. If the Defendant does not succeed then I can consider the application for an interim order in the usual way.
  7. The action was commenced under the "old Rules" and by way of a writ of summons. That was filed on 27th July 2007. It was based on the fact the Plaintiff (now called a Claimant) was a member of the Soroboilo tribe being a sub tribe of the Manukiki tribe of Ghaliatu South Guadalcanal. He claimed a Local Court decision said he was the true and original customary owner of Koloula Land. The decision he relies on was handed down by the Local Court on 8th October 1998 following a hearing at Kolokiki village. He goes on to say that the First Defendant had, "...since 2005 without the plaintiff's consent or permission entered into an agreement.... for drilling and prospecting." In furtherance of the agreement the First Defendant had entered the Claimant's land and had thereby trespassed. The Claimant asked for permanent injunctions, damages limited to SBD 500,000.00 and costs.
  8. The Defendants filed a defence on 8th November 2007 which seems to me to say that it agrees with the Claimant's interpretation of the Local Court decision, but not completely. It says the decision is only effective inter-parties; and the persons with whom it entered into an Access and Compensation Agreement with were not parties to the Local Court case. It is possible the defence was phrased in the way it was because, I am led to believe, the prospecting area at that time was larger and may have included land other than Koloula land.
  9. Further and better Particulars filed by the Claimant on 14th September 2007 included more detail of the facts relied on. That document makes it quite clear that the Claimant's Uncle, Mathew Moli, was a party to the Local Court case and that the Claimant was basing his case on his Uncle's rights. In the circumstances it is right at this stage to look at the Local Court case in a little more detail.
  10. The record (there are several copies with the case file, some complete, some not) confirms that Mathew Moli was a Plaintiff in the Local Court case. His Co-Plaintiff was Alfred Hau. The Defendants were Amose Lepona ("Represent Garavu tribe") and Daniel Deke ("Represent Manukiki tribe"). The land in dispute was Koloula Valley Land. I have recited the details of the parties as they appear in the record because those descriptions, and the record, reveal some very pertinent facts. In answer to questions from the Local Court members Alfred Hau says that he stands for the Garavu tribe. The court found as fact that Mathew Moli was from the Manukiki tribe. The Plaintiffs and the Defendants were both from the same tribes. Mathew Moli also says in the opening comment of his evidence, "I come on behalf of the 14 tribes to prove to the court we are the owners of the land."
  11. The evidence in the Local Court case (and for that matter in this case) show quite clearly that there are a number of sub tribes of either the Garavu or Manukiki tribes. The evidence in the Local Court case leave no room for doubt that the plaintiffs in that case were from the Garavu and Manukiki tribes and that the defendants were from the Garavu and Manukiki tribes.
  12. After a hearing lasting a number of days the Local Court made it's decision as follows:-

"1. The disputed land named Koloula Valley land is owned by both the plaintiffs and the defendants equally and accordingly. Whatever developments the parties may wish to make in this land, it must be first of all agreed by both the plaintiff and defendant parties in the case.


2. That the recent trustees formed by only the defendant be dissolved and new trustees and agreement be as far as possible be made with the company. Trustees must consist of the representatives of all the parties in this case."


  1. Far from what the Claimant is saying in his statement of claim, the Local Court said in its decision, the land belonged to all equally. The Local Court did not differentiate between primary or secondary ownership. There is absolutely no basis for the Claimants assertion that the Local Court said his tribe solely owned the land. The Local Court found that there were two main tribes, the Garavu and the Manukiki. Those two tribes were comprised of several sub tribes. All those sub tribes took their rights over the land from the rights of the Garavu and Manukiki tribes and as the Court said the land was owned by both, "equally and accordingly".
  2. The Defendant's view of the Local Court decision was that those with whom it had signed the Access and Compensation Agreement were not bound by it. That was clearly wrong as well. Any of the signatories who were members of the sub tribes deriving their rights from the two main tribes, Garavu and Manukiki, were parties to the Local Court case. The possibility mentioned at paragraph 8 above may be the reason for the stance adopted but I will add further comment later[1].
  3. Had both sides appreciated the effect of the Local Court case at that stage and taken note of what was said in the second part of the decision, one is left to wonder whether this matter could have settled back in 1998. As it turns out, the matter was not settled and indeed has become more convoluted.
  4. The Claimant issued the first of his applications for interim injunctions on 25th October 2007. A change of legal representatives had the result of delaying effective service of the application which was adjourned to 7th February 2008. It was further adjourned to 28th February. In the meantime the Defendant had applied to join third parties. It is not clear from the file copy when the application was actually filed. In any event, an order was made on 28th February giving leave to the Defendant to issue a third party notice and leave to the Claimant to make consequential amendments to the Writ and Statement of Claim[2].
  5. The application for interim relief was heard on 13th March 2008. Evidence was read and submissions made. In the course of the submissions it was suggested the trustees might be changed and the application was adjourned (to 22nd May) to allow discussions to take place. On 22nd May it was said the discussions had not been fruitful and the application was further adjourned to 19th June for service of the amended claim. The Further Amended Claim was dated and filed 21st May 2008.
  6. Whatever that document purported to be it was clearly defective. It was not a "Further Amended Claim". It named the proposed third parties as Defendants. It had been filed before the third party notices had even been filed and served. There is no real explanation why there was the extraordinary delay between the order giving leave and the actual issue and service of the third party notice. It did make the task of the Claimant complying with Goldsbrough J's order much harder. Even taking that into account the pleadings filed on 21st May 2008 are so defective they cannot be allowed to stand. They are ineffectual.
  7. It appears by now the interim application has been abandoned. At least it does not seem to be further pursued by the Claimant. When the parties attend the court on 19th June 2008 (now with Counsel instructed by the "new" First, Second, Third, and Fourth Defendants) an attempt is made to unravel the mess and the problem of whether there are new defendants or whether they are third parties is raised. The case is adjourned to 3rd July without any mention of the application for interim relief. The third party notices are filed on 3rd July and it is suggested that time be given to allow for service of the notice on the third parties and the Claimant. Time would also be needed for them to respond. The case is put off to 14th August.
  8. The response from the Third Parties is filed on 30th July 2008. However, the document filed appears to be a response (or as it says a Statement of Defence) to the defective Further Amended Claim referred to at paragraphs 16 and 17 above. It says, in terms, the third parties are the right people to sign any agreement. The 14th August hearing is adjourned to 28th August and at that hearing it is said by Counsel for the Claimant that the parties agree to go back to the Chiefs. It is crucial to note there was no order by the court for the dispute to be referred to the Chiefs.
  9. The case then went quiet for several months. In the interim there had been another change of Legal Representatives for the Claimant. An affidavit is filed by the Claimant in February 2009 giving details of a Chiefs hearing held on 26th November 2008. On the second April 2009 the second application for interim relief was filed. Then, without any order or leave being granted, and so far as I am aware, without any reference to the Defendant or the Third Party a "Claim" is filed (on 8th April 2009). Rules[3] 5.34 to 5.36 are clear. A party cannot just file an amended claim. The purported Claim cannot be allowed to stand. I therefore make a declaration pursuant to Rule 1.17 (c) that the document, whatever it is, is ineffectual.
  10. What is the effect of the new Chiefs' decision? Quite frankly, it is of no effect in this case. I am not being asked to quash the Chiefs' decision in this case. I can, if it is relevant, take into account the sworn statement of the Secretary, Pius Samane, filed on 27th February 2009. However, I bear in mind the long line of cases and in particular the Court of Appeal case Majoria v Jino[4] which say that a later decision of the Chiefs cannot simply supplant an earlier decision of the Local Court. The Claimant has not shown that there was true agreement to refer the matter to the Chiefs. There is most certainly no court order to that effect as is stated by the Claimant. The Chiefs' hearing which the Claimant relies upon is of no evidential value at all.
  11. That leaves the Claimant dependant on the original Writ of Summons and the Statement of Claim and his Further and Better Particulars. Has he any chance of succeeding in this case on the basis of those documents? They rely entirely on the Claimants "interpretation" of the Local Court decision handed down in 1998. Given my earlier comments about the misrepresentation of the Local Court decision contained in the original Writ and Statement of Claim I would have to say no, the Claimant has no chance of success. Can the Statement of Case be amended so that there is a claim of any merit to be considered? Again I would have to say no. The only change in the claim is the Claimants reliance on the "new" Chiefs' decision from November 2008. From my earlier comments it is clear I am of the view that he cannot rely on that decision to give any credence to his substantive claim.
  12. This case stands or falls on the effect of the Local Court decision in 1998. I am not asked, and neither would I presume to say, whether that decision was right or wrong. The right forum to contest the correctness of the Local Court decision is the Customary Land Appeal Court. I understand an appeal may still be pending. It has been pending since 1999. I do appreciate that since the appeal was lodged there were some local difficulties which prevented the CLAC from sitting but the time may now be right to seek a conclusion to the appeal. I note from the evidence before me that it does not appear to be the Claimant who has appealed. It is not clear whether the appellant in the CLAC case has lost interest in appealing. It is not clear whether the appeal has in fact been struck out.
  13. What is abundantly clear is that there is a valid decree of the Local Court that the two tribes, the Garavu and the Manukiki (and all the sub tribes derived from them) are equal owners of Koloula Valley Land.
  14. A concern I have about this case is the implied but unspecified assertion that the Claimant's Soroboilo sub tribe is somehow not a part of the Soroboilo tribe which the Defendants acknowledge is a Manukiki sub tribe. What appears to be said, and a glimmer of evidence of this is apparent in the Claimants sworn statement of 3rd December 2009, is there may well be sub sub tribes. There are salt water sub tribes and bush sub tribes. The implication running through evidence against the Claimant is that although he is Soroboilo he is salt water Soroboilo not bush Soroboilo. All I would say is that the Local Court made no such distinction.
  15. Another concern is that the Claimant does not, never has, want to stop the operations of the Defendant company. As far back as 1998 that was evident. Mathew Moli is asked in the Local Court case, "They the defendant party came to consult you about the operation of the company, what will be your respond?". He answered, 'I will not say anything if they give me money". Money is at the heart of this dispute.
  16. Yet another concern is that the Claimant may not be the "right" person to pursue this matter on behalf of his tribe. In all his evidence he relies on the authority of his Uncle Mathew Moli. Mr Moli is still alive and Mr Tsuki acknowledges on more than one occasion that one day he will take over from his Uncle. However, he has not done so yet.
  17. Whilst I can resolve this case by making orders I cannot resolve the dispute between the Claimant and others in the area. I would venture to suggest that all sides, if they are serious about resolving the dispute, should look at the Local Court decision afresh. The essential decision consists of 86 words. I have recited them at paragraph 11 above. They are not ambiguous or unclear in the slightest. The effect of the decision is as plain as the nose on your face. It does not mean the Claimant owns the land, it does not make a distinction between saltwater and bush, it does not say that one tribe is more important than the other. It does not say one tribe or any tribes can be excluded from benefiting from the whole. It does not say that if a man comes from a sub tribe of the Garavu or Manukiki but speaks a different language he is to be cast aside. It does not say one tribe has primary rights and the other secondary rights over the land. It says, Koloula Valley land is owned by both the plaintiffs and the defendants equally".
  18. As I say, I cannot resolve the dispute but I can resolve the case. I do not believe that the Claimant can sustain his claim. I strike out the Claim and Statement of case pursuant to Rule 9.75 as disclosing no reasonable cause of action. The proceedings are dismissed.
  19. That being so I can turn to the application for interim relief. Clearly, if the substantive action has been struck out then the interim application must fail. There can be no interim order in a case that is no longer proceeding.
  20. As for costs, they are at the discretion of the court. In my view, neither side can consider themselves covered in glory here. I have commented at length on the Claimants interpretation of the case he relies on. I would also have to say the defence filed and pursued relies on, at times, a dubious interpretation of the same case. As I have indicated above, this case has been largely defended on the premise that the Claimant is Soroboilo but not Soroboilo or is Soroboilo but not the "right" Soroboilo. In all the circumstances I am prepared to depart from the norm where costs follow the event by saying that each party shall pay their own costs. I certify the proceeding as fit for Queens Counsel.

Chetwynd J

[1] See paragraph 27
[2] See the order of Goldsbrough J perfected 11th March 2008.
[3] Solomon Islands Courts (Civil Procedure) Rules 2007
[4] Majoria v Jino CA CAC 36 of 2006

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2010/115.html