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Umule v Pikinini [2013] SBHC 190; HCSI-CC 126 of 2013 (4 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 126 of 2013.

BETWEEN:

MATILDA UMULE
Claimant

AND:

ALISAE PIKININI AND OTHERS
First Defendant

AND:

ATTORNEY-GENERAL
(Representing the Acquisition Officer as agent of Commissioner of Lands).
Third Defendant

AND:

ATTORNEY-GENERAL
(Representing the Registrar of Titles).
Fourth Defendant

AND:

LILY SIKA
(Representing Isunakomu Tribe)
Applicant.

Date of Hearing: 25th November, 2013.
Date of Ruling: 4th December, 2013.

Mr M. Tagini for the Claimant.
Mr W. Rano for the First Defendant.
Mr Muria (Junior for Second to Fourth Defendant.
Mr D. Marahare for the Applicant.

RULING.

Faukona J: There are two applications in this case. One by the Applicant filed on 28th August, 2013 for joinder as party pursuant to Rule 3.6. The second is by the Third and Fourth Defendants for variation of Court order made on 18th November, 2013, pursuant to Rules 2-9 and 7.5.

Application for joinder:

2. The Applicant applies for joinder to join the Claimant as Second Claimant in these proceedings. The reason as adduced is four fold. One, that the Applicant is a member of isunakomu tribe, the same tribe as the Claimant. In 2012 the Applicant represented isunakomu tribe in the Vulolo House of Chiefs hearing which subsequently delivered a decision in favour of her tribe on the 4th December 2012 – Exh. LS1 attached to the Applicant's sworn statement filed on the 28th August, 2013. That determination provides legal basis to pursue this claim.

3. Secondly that the Claimant still has some outstanding traditional requirements to perform before she can act on behalf of the tribe. Meantime she can't represent their tribe until those custom requirements have been performed.

4. Thirdly, in terms of mandate by the tribe, there was a consensus endorsed by members of the tribe that the Applicant was accepted to represent isunakomu tribe in any land case, or in particular concerning koku hachoha land.

5. Fourthly the Chiefs determination in favour of her and her tribe premised on the customary story she narrated and her genealogy, and not the Claimant's.

6. Mr Tagini relies on R 3.5 and R 3.6 as test. Rule 3.5 says, a Court may order that a person becomes a party to a proceeding if the person's presence is necessary to enable the Court to make a decision fairly and effectively. And R 3.6 says a person affected by a proceeding may apply to the Court for an order to be made a party.

7. The question is has Applicant's presence is necessary to enable Court make a fair and effective decision. Mr Tagini submits it is not necessary. The Claimant has been there and should represent the tribe.

8. Mr Rano submits that whosoever's name had appeared on litigation proceedings record be maintained.

9. It is not the desire of the Court that the Applicant be a party before the Court can make a fair and effective decision. Any assumption on that line will in my view, promote injustice and pre-empt any outcome. The fact is that the Applicant has experience. She had represented her tribe isunakomu in the Chiefs hearing. That implicates she has a proprietary interest in the subject matter and will be affected by facts and evidence. See Kalena Timber Company No. 18 of 2005.

10. There is material evidence by way of report which endorsed by eighteen tribal members affirming that the Applicant won the case on behalf of her tribe in Chiefs hearing because of her understanding of their history and genealogy. That reflects, without her the Claimant's case is futile. Not only that, but the tribe will miss an experience and prospective spokesperson who knew history and genealogy of the land concern.

11. I feel that Mr Rano's submissions are very much of assistance to the Court that whosoever's name appeared on litigation record be maintained. In order to maintain consistency it is fair and proper that the Applicant be included to join the Claimant as Second Claimant.

Application of variation of Court order:

12. This is an application by the Attorney-General on behalf of Third and Fourth Defendant for variation of order made by this Court on 18th November, 2013. It would appear upon perusing the allegations that there was nothing against Third and Furth Defendants. In that instance the AG should only file defence on behalf of Second Defendant and Third and fourth Defendants be removed as parties. Alternatively, that Third and Fourth Defendants not to file any defence but remain as parties until the case is concluded.

13. None of other Counsels has objected to the application though on alternative basis. However, Mr Marahare submits favouring the Second option, that the two Defendants may not be required to file defence but continue remain as party until the case is decided. As Counsels seem not to object, implicates that second option is more favourable. The question of costs, should it arise for attending without participation, will be determined on its own factual basis.

Orders of the Court:

1. The Applicant by order is joined as Second Claimant in these proceedings.

2. Consequent to order 1, the Claimant is directed to serve copies of all pleadings filed in the proceedings upon the Applicant within 7 days from the date of this order.

3. Court Orders of 18th November 2013 be varied to allow the Attorney-General to file defence only on behalf of the Second Defendant and not on behalf of the Third and fourth Defendants.

4. Order that although the Third and Furth Defendants are not filing any defence, be remain as a party attending Court proceedings until this case is finally decided.

5. Cost in the cause.

The Court.