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

CIVIL CASE NO. 414 OF 2012.

BETWEEN:

AARON MANE AND WILLIAM HAVILEGU (Representing Koromata Tribe)
Claimants

AND:

CECIL EVO (Representing himself and Fafago Tribe)
First Defendant

AND:

ISABEL TIMBER COMPANY LTD
Second Defendant

AND:

SONIC PHASE (SI) COMPANY LTD
Third Defendant

AND:

GLENGROW (SI) COMPANY LTD
Fourth Defendant

Date of Hearing: 17th February 2015
Date of Ruling: 3rd March 2015.

Mr W. Togamae for the Claimants
Mr D. Marahare for the First Defendant
No one for Second, third and Fourth Defendants 

RULING ON APPLICATION TO STRIKE OUT CLAIM.

Faukona PJ: A claim in Category A was filed on 30th November 2011. On 22nd January 2013, an amended claim to the above was filed. The amended claim seeks a number of orders in the nature of damages; damages for trespass; damages for fraud and damages for unlawful conversion of round logs within Konide customary land. The Claimants also contended that there was no breach to S.3 (2) of the Oaths Act.

2. Deduce from the statement of case, it appears that the claim is for variable damages, premise on the assumption that the outcome of CLAC will be in favour of the Claimants as true landowners of the land including that of konide customary land. 

3. From the defence filed on 14th December 2012, there is no dispute related to the pending appeals to the Isabel Customary Land Appeal Court from the Local Court, which are yet to be determined by CLAC.

4. On 12th July 2013, the first Defendant filed this application to strike out the claim. The reason for that is three fold. One that the appeal to CLAC against the determination of the Provincial Executive was dismissed, on the ground that the appeal lodged was out of time, hence, the CLAC has no jurisdiction to entertain. Secondly, that it is clear from pleadings that the Claimants are basically claimed for damages. To determine damages being the result for trespass, the Claimants must proof they have background of landownership. Thirdly, by those reasons the principle of res-judicate applied. Therefore, the Claim does not disclose reasonable cause of action and is frivolous and vexatious. And of course breach of S.3 (2) of the Oaths Act.

5.  The argument advocated by Mr Togamae is not that the claim was footed on the appeal to CLAC, which was dismissed, but on appeal to CLAC from the decision of the Local Court which the sole issue is of customary land ownership. The Claimant in this case is one of the appellants. 

6. Mr Marahare in response reiterates the circumstance does not change. The fact is that the Claimants cannot come to court and claim damages for trespass whilst they do not own the land.

Breach of S.3 (2) of Oaths Act:
7. A preliminary point in law is raised by the Counsel for the first Defendant that the Administration of Oaths by Mr Faga had breached S.3 (2) of the Oaths Act. It was alleged Mr Faga who previously was the Solicitor on record for the Claimants had administered the oath as a Commissioner for Oaths on Claimants' documents. I have read the ruling by Brown PJ and the letter the Counsel refers to. Perhaps a significant approach, one I resort to after perusing the sworn statements is that, Mr Faga's Commissioner for Oaths stamp and signature was imprinted or stamped on two sworn statements by the Claimant, one filed on 30th November 2012 and the other filed on 12th July 2013. The same stamp and signature was also identified on sworn statement of Mr. William Havilegu filed on 12th July 2013. The same stamp and signature is also identified on the sworn statement of Ambrose Meimana in support of the first Defendant's case filed on 14/12/2012.

8. There are two notorious areas of administration of oaths, which the subsection offers guidance. One, that the Commissioner shall not exercise any power in any proceeding in which he is a Solicitor and secondly in a case where he has an interest in.

9. In my humble view, the guiding principle in the subsection is narrated in English construction utilising a present tense. Simply mean, that a Solicitor currently representing a party cannot administer any oaths relating to that preceding which he currently taking carriage of. In this case, Mr Faga had administered the oaths on the dates alluded to in paragraph 3 above. His representation reflected in the case referred to was in August 2006. I do not seem to agree to the submission where representation and administration of oaths was separated by six years.

10. On the issue of interest there ought to be evidence to ascertain Mr. Faga has an interest in the case or its outcome. There is no such evidence at all event to suggest Mr. Faga has a relationship or association by blood, marriage or otherwise to the Claimants.

11. By administering oaths on a sworn statement, which also supports the first Defendant's case signifies impartiality and recognition of his function to perform fairly without favour. With the above reasons, I must dismiss the submissions in respect of the preliminary point.

Application to strike out:
12. Application of this nature is expected to be within the bounds of Rule 9.75. The law related to striking out is well settled in this jurisdiction. There are numerous cases that uphold and apply the original common law approach. One of such case is Abe V Minister of Finance and Attorney-General. The other case is Tikani V Motui Also not forgetting the case of Dalgro Solomon Islands and Tugale V KK Real Estate Proprietor Ltd and Ors, and many more.

13. In brief the principle is that to strike out a claim the Court may do so in exceptional cases only where it is shown that there is no reasonable cause of action. Even if leave is granted for amendment such would not cure the defects. If pleadings or statement show some essential facts which disclose some cause of action or raise question fit to be considered, the Court should not strike out the pleading or statement of claim. Even if the case is weak and likely not to succeed, that is no ground to strike out. This part of the proposition is denied by Mr Marahare as not applicable in this instance.

14. He rather favours the second portion which allows the Court to exercise its powers liberally to dismiss a claim sparingly and only in the clearest cases. The second approach is reinforced to uphold the objective of Rules 1.3 and 1.4 to disperse with the rules in the interest of justice. 

15. The argument here is on the basis that a claim for trespass hinges on the issue of ownership of customary land. I agree that is an affirmative approach. However, the case Mr. Marahare refers in support of his contention that is Joe Rody Totorea's case is slightly missing the mark. In that case, His Lordship Kabui J expressed that a party should not come to the high Court for interim injunction on the ground of trespass to customary land until that party obtain a final decree of ownership.

16. That case in my view sets a minimum requirement. To sustain a claim for trespass, which prompted damages, the Claimants ought to possess a final decision showing right of ownership to the land. This must be distinguished from the case of Sira v Maemae where His Lordship Palmer J (at that time) agreed to the principle but draw extension to other circumstances reflected in other Melanesian Society jurisdictions. 

17. In this jurisdiction land ownership become a mandatory prerequisite to ground a claim for trespass and damages. By way of evidence, the parties had gone through the Isabel Local Court, which delivered its decision sharing the land between three litigating parties. The Claimants' party own a portion of customary land described in the decision as in Exh AM3 attached to the Claimant's sworn statement filed on 18th November 2011 and which was exhibited as "AM 1" in his sworn statement filed on 30th November 2012. And fafago tribe which the first Defendant represents owns west of kaipito river which included konide land, a small portion acquired for rural health clinic – also expressed in Exh AM3. 

18. After the Local Court decision, an issue related to appeal arise. The Claimants are saying there were appeals pending in CLAC, a point the first Defendant contended. He says there is no appeal pending in the CLAC. Following from the arguments I have perused the documents and the sworn statements, however, I could not able to locate any evidence concerning a pending appeal in the CLAC. Having unsatisfactorily searched, I enquired with the Central Magistrates Court, which administered all cases in Isabel Province. The result I obtain is that there is an appeal pending CLAC determination in respect of koromata/kaipito land. It was appeal no. 2 of 2000.

19. Apparently, as per se, the claim in fact derives from the trespass alleged to have occurred on the potion of customary land awarded to the first Defendant by the Local Court. Undoubtedly, the claim for trespass premise on the assumption that the Claimants will win the appeal, that is putting the horse behind the cart or counting the eggs before they are hatched. Not until the local court decision is altered the interest and rights of the parties remain unchanged.

Issue estoppel or res-judicate:
20. The argument is that the issue of customary land ownership had been finally determined between the same parties by the Acquisition Officer and the CLAC dismissing the Claimants appeal from the Isabel Provincial Executive in a timber rights process. The Counsel advocate for the first Defendant submits that in those two occasions is a point attributing that the Claimants cannot relitigate the same issue between the same parties again in Court. The Counsel refers to the cases of Majoria v Jino and Talasasa v Paia and Anor

21. The case of Talasasa V Paia sets out the principles to be applied. The rationale in Majoria's case is that if there is a Local Court decision on the question of customary ownership that is binding on parties in the conventional case, they are estopped from seeking a different decision in respect under the regime instituted by the Forest Resources and Timber Utilisation Act. With respect to the Solomon Islands Court of Appeal it is with no doubt that the principle operates vice versa from FRTU Act to the Local Court Act. 

22. Whilst I concede with that decision the problem, I perceived which, will continue to thrive arguments is the fact that tribunals established under those various Acts approached the issue of customary land ownership differently. The other regimes are more or less confine to specific issues identified or authorised by the Acts under which they function. Perhaps there ought to be equitable and one universal approach and practice to avoid duel proceedings. There ought to be some kind of practice directions in place. A mere expectation that tribunal will determine according to the expectation of a party cannot be on. It is unacceptable and may pave a way and allow for presumption to prevail. 

23. The acquisition determination was made on 1st July 1991. The acquisition process concerned a small area of customary land known as konide where a rural health clinic was to be built. The case finally ended up in the High Court and a decision was made on 11th August 1993, affirming the decision of the acquisition Officer and the Magistrate.

24. On 27th June 1997, the Isabel Local Court decided the issue of land ownership between the Claimants and the first Defendant and another party. The Local Court divided the land among the three parties. Konide customary land was given to the first Defendant and all that land west of kaipito river. See map Exh AM9 attached to the sworn statement of Ambrose Meimana filed on 14th December 2012. Before that, there were two Chiefs hearings. One on 25th – 27th July 1989 and the other on 25th – 30th September 1991.

25. The question one would ask which of the regime instituted by the Land and Titles Act and the Local Courts Act finally determined the issue of Landownership between the parties. I don't think it is the determination by the acquisition process. That determination commenced later. The process of hearing under the Local Court Act commenced earlier in 1989 and 1991. Though the determination by the High Court was earlier in 1993 than the Local Court in 1997; can it be said that the Claimants are estopped from pursuing the same issue with the same party which the High Court had determined in the acquisition process under the Land and Titles Act. 

26. I must say no, the High Court decision, though from a hierarchy of Courts, concern a small portion of konide land within fafago land, which the Claimants also claim through out the entire litigation processes. The procedure is still available taking into account the appeal is still pending in the CLAC. Secondly, the first Defendant cannot rely on the decision dismissing the appeal by CLAC because the timber rights process was heard six years later. The issue of land ownership was instituted and litigated well before the timber rights hearing.

27. Therefore it is prudent and justifiable to dismiss the submissions premise on the principle of res-judicata to deny the rights of the Claimants be heard on appeal to the CLAC. With the reasons I have alluded above, it is perceived with the current status of this case, there may be some merit in the application, but has to be measured against whatever the decision of CLAC would be. Should the decision on appeal does not change the course, and then perhaps it will be right time to consider an application to strike out. All I have to say now, that this application is brought prematurely than is necessary. Should the appeal is in favour of the Claimants any application of this nature is devoid of all merits. The conclusion I have arrived at is considered as fair and just given the circumstances surrounding this case.

Orders:
1. Refuse to grant order striking out the Claimants amended claim filed on 22nd January 2013.

2. Refuse to grant order that Claimants are estopped from claiming ownership over konide land based on the principle of res-judicate.

3. Refuse to grant order directing immediate release of the funds that were restraint by order on 7th December 2012 to the Defendants and payment of funds representing royalty proceeds to the first Defendant.

4. Costs of and incidental to this application payable to the Claimants by the first Defendant.

5. This case is stayed until the Isabel Customary Land Appeal Court decides the appeal currently pending before it.

The Court