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Kondo v Pasakolo [2019] SBHC 96; HCSI-CC 239 of 2019 (11 November 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 239 of 2019

ENOCK KONDO AND BEN ENOCK DENGO
(Representing Kamana Tribe)
Claimant

V

PASAKOLO, LEDILI JONATHAN AND SISOM TANIVEKE
First Applicants/Defendant

ROVA ZAKELE
(Representing Dusara Tribe)
Second applicant/Defendant

JUNI LEVAE, JUNDI LEVAE, SIMON RINITA AND NOSE LEVAE
Third Applicant/Defendants

Date of Hearing: 5 September 2019
Date of Judgment: 11 November 2019

Mr. M Puhimana for the Claimant
Ms. S Kofana for the 1^st and 2^nd Respondents/Defendants

RULING ON APPLICATION TO STRIKE OUT CLAIM

Introduction

The Court on 26^th August 2019 issued a number of restraining orders against the defendants. The interim orders were issued on an ex-parte application by the claimant base on a claim for trespass and conversion. The defendants now come to court and seek to have the claim to be strike out.

Background

The claimant, first and second defendant and Third defendant are all members of the Kubongava –Bere tribe. The tribe consist of three clans, 1.Qamana, 2.Tibala and 3. Dusara. The claim was brought due to a dispute over operation of a Timber milling on Kubongava Bere customary land. The milling operation was sanction by Treasury Timber Ltd a company who was granted timber rights to conduct logging on Kubongava Bere Customary under a valid licence No. A 101432 issued by the Commissioner of Forest. The commissioner of Forest also approve a milling licence to Simon Taniveke on the same land. The claimant are asserting that the First, Second and Third defendants did not obtained their consent to carry out milling on the land. The defendants says that they do not require consent or approval of the claimants to benefit from resources from Kubongava Bere land as they are from Tipala and Dasura clan and jointly own Kubongava Bere land.

Application to struck out Claim

Applications to strike out a claim is covered under the provision of Rule 9.75 and 9.76 of the SI Courts (Civil Procedure) Rules 2007, Rule 9.75 provided 3 situations where the court can order a proceeding to be struck out, they are;

(a) The proceedings are frivolous or vexatious; or
(b) No reasonable cause of action is disclose; or
(c) The proceeding is an abuse of the process of the court.

The application was supported by the sworn Statements of Henry Koto filed on 17.05.19, Rova Zakele filed on 17.05.19, Simon Taniveke filed on 17.05.19 and Nickson Ofanakwai as well as the defence of the 1^st, 2^nd and 3^rd defendants filed 17.05 19 and the application to dismissed the proceedings.

The applicants in their application submit that the Qamana clan do not have the sole right of ownership over Kubongava-Bere Customary land. They submit that the Babatana council of chief’s decision was not made in respect of one particular clan but the Kubongava-Bere tribe as a whole. There was no specific mention of Qamana clan as the sole owner. They submit that the Babatana council of chief’s decision was based on the High Court of Western Pacific decision which establishes three clans Qamana, Tipala and Dusara as joint owners of Kubongava Bere Customary land. Thus the defendants submits that the 1^st, 2^nd and 3^rd defendants being members of the Tipala and Dusara clans who are joint owners of the Kubongava-Bere land, their rights are not inferior to members of the Qamana clan who is the other joint owner and to which the claimant belong.

The claimant’s substantive claim is for trespass and conversion. The applicants submits that a claim is unreasonable because all the clans have equal right of ownership of Kubongava –Bere land. The applicant submits that a claim for trespass would be one in which the claimants has the sole and superior right over the land and a person who has no right entered and infringed the claimants right. As such they submit the claim must be stuck out on the ground that there is no reasonable cause of action.

I had considered the materials relied on by the applicants and accept the submission and evidence that the claimants and the 1^st, 2^nd and 3^rd defendants all belong to Kubongava –Bere Tribe although they may come from different clans. I also accept that the Past court decision over the same land including the Babatana council of chief’s decision did not state that Qamana clan to which the claimant belong have any superior right over the other two clans, Tipala and Dusara. I consider that any dispute is an internal matter between members of the same tribe over who may have authority over the land. Since the parties are members of the same tribe and joint owners of the Kubongava Bere Land I consider any claim for trespass and conversion would be frivolous, vexatious and show no reasonable cause of action. There may arise issues of custom but they are not issues before this court and it is up to the parties to pursue those issue before the appropriate forums. For this reason I find there are no triable issues before this court.

I had considered the courts powers to strike out a claim or proceeding under rule 9.75. This was discussed in Tikani v Motui [2000] SBHC 10, HC- CC 29 of 2001 in which his Lordship, Palmer J as he then was referred to Wenlock v Moloney [1965] 1WLR 12,38 where it was said “ the court should only exercise its discretion to strike out in plain and obvious cases”

I had considered the materials before the court, particularly that the parties are from the same tribe and joint owners of the Kubongava Bere customary land and that there was no evidence that the claimants have any superior rights over the 1^st, 2^nd and 3^rd defendants. I also take into account the fact the parties jointly own Kubongava Bere land was not disclosed during the hearing of the Ex- parte application where the interim restraining orders were granted in their favour.

In CTP International (SI) Co. Ltd v Ghiro [2014] SBHC 66; HCSI CC 33 of 2014. Apaniai J states “The rule regarding non-disclosure are clear. When making an application for injunctions, in particular ex-parte applications, the applicant has a duty to make full disclosure to the court. Full disclosure to the court means disclosing all relevant facts that support the application as well as all relevant facts unfavourable to the application. The applicant must not withhold relevant facts, nor misled the court either in what he says or not saying what he is supposed to say. Relevant facts are those which have a clear connection with the relief sought in the application. Those facts must be disclosed. His lordship went on to say “ Where requirement are not met, there is non-disclosure and the court will, as general rule, discharge the injunctions because suppressing the facts or by making misleading statements, the court was presented with a case which is different from what actually existed”

For the foregoing reasons I grant the application and the orders sought and struck out the claim. The interim orders are also discharged forthwith. Cost against the claimant to be tax if not agreed.

The Court
Emmanuel Kouhota
Puisne Judge