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Aleve v Grandly [2023] SBHC 42; HCSI-CC 426 of 2022 (19 June 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 426 of 2022

BETWEEN

ALASTAIR ALEVE, KITCHENER BIRD, ROSLYN ALEVE
(Representing themselves and others members of Timothy Aleve, Naptalae Aleve and Mareke clan of Marovo, Western Province)
1^st Claimants

AND:

CHIEF DAVIS HARO
2^nd Claimant

AND:

CARLTON GRANDLY, LEROY JOSHUA AND KEVIN JOSHUA
1^st Defendant/Applicant

AND:

PWP (SD LIMITED
2^nd Defendant

AND:

GULF THREE LIMITED
3^rd Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
4^th Defendant

Date of Hearing: 1 June 2023
Date of Ruling: 19 June 2023

Upwe B for the 1^st Claimants
Olofia E for the 1^st, 2^nd & 3^rd Defendant
Bula C for the 4^th Defendant N/A

RULING ON APPLICATION TO DISMISS AND STRUCK OUT A CLAIM

KOUHOTA J

This is an application by the defendants to dismiss and struck out the claimants Category A claim filed on 2^nd September 2022 and amended on 3^rd October 2022. The claimant alleged that the defendants have trespassed into Patukae Customary Land and seek damages and compensation for trespasses. The defendant in their application seek orders that the proceeding or whole claim be dismissed or struck out pursuant to rule 9.75 of the SI Court Civil Procedure rules 2007. The defendants aver that the claim is frivolous and vexatious and an abuse of the process of the Court for the following reasons;

(a) That this court has no jurisdiction to deal with this case which has not been determined by the relevant Chiefs Panel.
(b) That the decision of the Marovo Council of chiefs of 30^th September 1999 in a dispute between Timothy Aleve and Naptalae Aleve of Mareke clan against Leroy Joshua and Kevin Joshua relied on by the claimants in this case concerns with Patukae land that has been registered as PN No. 144-011-1 in 2077 and not the subject land in this proceeding.
(c) In the dispute Leroy Joshua and Kevin Joshua were representing themselves and immediate
(d) families from their mother's side and not from the first defendants.That License TIM 2/84 was issued first time in 1996 compared to Tim 2/117 which was issued two years later in 1998.
(e) That when Tim 2/84 was issued the first claimant did not object to the timber rights application By not objecting the Timber Rights process and without a chiefs decision in their favour, the claimant have lost the right to challenge the license or any operations that is being carried out within the concession of the license. In any event this claim is not challenging the validity of Tim/ 2/84, instead it is a claim for trespass into a customary land.

The defendant in support of the application relied on the sworn statement of Carlton Grandly filed on 25^th of October 2022. In his sworn statement Mr Carlton Grandly states;

"that as a landowner of Arovo Customary Land, he did not dispute the First claimant are the original owners of Patukae Customary land or at least the land they know as correct Patukae. However, Patukae is no longer a Customary Land because on 22^nd of June 2007 the land became registered or included in the registration of Burubuhai Land which is now referred to as PN No. 144-011-1. Mr Carlton Grandly further states the actual description of Patukae as described by the chiefs but the map annexure AA-8 to the sworn statement of Alastair Aleve described the boundary and depicted a totally different boundary from that as described by the chiefs in 1999, because in the map the boundary of Patukae covers almost the whole concession area of Licence Tim 2/84 on Arovo Customary Land. This Mr Grandly says is confusing because Patukae Land is located far away from Arovo land."

Mr Upwe for the claimant made a lengthy submission in response to the application but I gather that the gist of his submission was that the defendant had trespass into Patukae Customary Land which is not part of the concession. He also alleges improper dealing of officers in the Ministry of Forest in dealing with this case. Without any evidence to support the allegations I do not wish to deal with the allegations further.

Counsel Upwe submit that the claimant is not disputing the validity of the licence but says that the defendant extend its operation into Patukae Customary Land which is outside of the concession area. I relied on the sworn statement of Alastair Aleve filed in response to Mr. Carlton Grandly on 1/06/23 in which Mr Aleve states that the boundary of Arovo Customary Land and the person who is determined as the person to grant timber rights over the land. Mr Alastair Aleve states that the map Mr Carlton Grandly exhibits in his sworn statement that shows Arovo Customary Land shared boundary with the PN No. 144-011-1 as wrong. He submit this is a serious issue to be determined by the Court and the application should be dismissed.

I had taken into account the sworn statement of Mr Carlton Grandly filed on 22^nd October 2022 and on 30^th May 2023, Richard Yong on 22^nd October 2022, filed in support of this application. I had also

Considered that the sworn statement of Alastair Aleve filed on 1^st June 2023 in response to the sworn statement of Mr. Carlton Grandly filed on the 30^th of May 2023 and his earlier sworn statements. I noted that, from the sworn statements and maps attached, there was no clear identification of Patukae Customary Land and not clear indication as to the area where the claimants alleged the defendant had trespassed. The maps exhibited by the parties does not help and just add to the confusion. One of the maps shows that Patukae land is located within PN No. 144-011-1 so it may be true what Mr Carlton Grandly said that Patuake Customary is now part of PN No. 144-011-1. If that was the case there is no evidence to show that the defendant had trespass into PN No. 144-011-1 so they cannot trespass onto Patukae land. I understand that the alleged trespass involved a dispute as to the correct boundaries of Patakae Customary Land but dispute as to the boundaries are not disputes before this court and this luck jurisdiction to deal with them. The parties are at liberty to utilise the appropriate forums to settle such disputes before coming to this court. On the materials before the Court there is no clear evidence of trespass and it is unlikely there was any trespass. The claim is therefore frivolous and vexatious and the application to stuck out the claim is granted. Cost against the defendant to be taxed if not agreed.

The Court
Emmanuel Kouhota
Puisne Judge