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Tahu v Sokai [2024] SBHC 185; HCSI-CC 250 of 2024 (27 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 250 of 2024

BETWEEN:

ATABANI TAHU
(Representing Nono Tribe Of Seghe In Western Province)
Claimant

AND:

GEATI SOKAI AND HIS FAMILY MEMBERS
Defendants

Date of Hearing: 27 November 2024
Date of Ruling: 27 November 2024

Mr H Waisanau for the Claimant
Mr S Weago for the Defendant

RULING

AULANGA PJ:

1. The Claimant, Mr. Atabani Tahu, represents his Nono tribe of Seghe in Western Province. He claims ownership of Nono customary land. Within Nono is Vichu customary land, a portion of land at the Seghe Airport in the Western Province.
2. The Claimant asserts the Defendant and members of his family have caused disturbances, threats and violence against the Claimant and his tribal members from undertaking clearing of trees at the Seghe Airport, a project funded by the Solomon Islands Government. The Claimant relies on a 1980 Marovo Local Court decision to assert his claim of ownership over the Vichu customary land.
3. On 26^th June 2024, the Claimant filed an ex parte application with his supporting sworn statement for ex parte orders. The application was heard and ex parte orders, relevant to the case, were granted in the following terms:
   • “3. That the Defendants together with their families, agents, servants, associates and tribal members are restrained from threatening, intimidating, assaulting, approaching, confronting and disturbing the Claimant/Applicant and his tribal members concerning their ongoing national project on clearing of the trees that posed dangers over the Seghe Airport in Western Province.
   • 4. That the Defendants together with their agents, servants, associates and tribal members are restrained from demanding the Claimant/Applicant and members of his tribe not to carry out any of their works allocated by the SI Government on the Seghe Airport runways.
   • 5. That the Defendants together with their agents, servants, associates and tribal members are restrained from creating any road blocks, causing any road blocks against the Claimant/Applicant and his tribal members or any of his tenants to have access to any properties situated on Vichu customary land of Seghe in Western Province.
   • 6. That the Defendants together with their agents, servants, associates and tribal members are restrained from causing any disturbance during any ceremony held over Seghe Airport in Western Province.
   • 7. That the Defendants together with their families, agents, servants, associates and tribal members or persons acting under their purported authority are restrained from damaging, vandalising or destroying any personal properties of the Claimant and their tribal members or any of his tenants situated on the said Vichu customary land of Seghe in Western Province.
   • 8. A penal notice is attached if there is any breach to these orders.
   • 9. The Royal Solomon Islands Police or Seghe RSIPF in Western Province is authorised to facilitate the service of the orders on the Defendants.”
4. On 6^th August 2024, the Claimant filed a Category A claim for orders for eviction of the Defendant and his family members, relatives, servants and agents from Vichu customary land. Further orders were also sought for permanency of the ex parte injunctive orders and for the Defendants to remove their properties and structures built on Vichu.
5. Upon service of the ex parte orders and the claim, the Defendants then apply to discharge the orders and ultimately, to dismiss the claim on the basis that the 1980 Marovo Local Court decision relied upon by the Claimant did not in any way determine or award right of ownership of the Vichu customary land to the Claimant. This application was heard at the inter parte hearing.
6. This application deals with this overreaching issue. That is, whether the ex parte orders should continue until final determination or hearing of the matter
7. The Defendants assert that the 1980 Marovo Local Court decision only deals with the Moluana Ulu Island, and not Vichu. Thus, there is no cause of action available to the Claimant for the orders sought in the claim for the sole reason that the Claimant did not have any court decision evidencing proof of ownership over Vichu against the Defendants. The Defendants assert that on that basis, the entire proceeding should be struck out with costs.
8. The Claimant submission essentially maintains the points mentioned at paragraph 2 above.
9. For this hearing, I shall address the usual matters to be considered at an interlocutory application as espoused in the case of American Cyanamid Co v Ethicon Ltd^[1]. These are, the materials before me must show that there is a serious issue to be tried, the balance of convenience favours the grant of the orders, that damages would not be an adequate remedy and that there is undertaking as to damages.
10. The parties make contrary submissions regarding whether the materials disclose a serious issue for trial. For this case, it is the 1980 Marovo Local Court decision, claimed by the Claimant to confer the ownership of the Vichu customary land to them, must be examined to determine the survival of the claim and the ex parte orders. In other words, this entire proceeding hinges on this decision.
11. I have read the decision annexed as “AT-1” in the Claimant’s sworn statement filed on 26^th June 2024. My understanding of the decision is that the said dispute only involved Moluana Ulu Island, not Vichu customary land. The mention of Vichu by Mr. Noel B. Ngangara in his evidence was in relation to it being claimed as one of the portions of land within Nono. But that does not mean the Court was dealing with Vichu or the entire Nono. The Court in that case, as earlier said, was adjudicating over an illegal sale of the Moluana Ulu Island.
12. To confirm that finding, the Court in that case made the following decision:
    • “As according to the Marovo Local Court decision, the said island of Moluana Ulu is now taken back by Mr. Noel Ngarangara from Mr. Letipiko (the one who sold it) and Mr. Haron Hilly, (the one who brought it from the Defendant for $350 cash.
    • The Court also decided the fact of selling the said matter that the amount of $350 cash should and must be refunded to Mr. Haron Hilly by the Defendant Mr. Letipiko Balesi.
    • And to finalise the decision – Mr. Haron Hilly and those who are now settling on the said island at the moment, you are now asked by this decision to withdraw or remove from the said Moluana Ulu Island with all of your belongings and abandon the island from now on. The real owner of Moluana Ulu Island is Mr. Noel Bule Ngarangara as now known according to the Marovo Local Court decision.”
13. It is crystal clear that the decision of the Court only deals with Moluana Ulu Island and not Vichu customary land. In light of the above, the Claimant cannot rely and use this decision to assert ownership claim over the Vichu customary land to obtain the interim orders and the final reliefs in the claim for this proceeding. Vichu and Moluana Ulu Island are geographically distinct by name and location. Hence, this decision is irrelevant and inapplicable to Vichu. The orders sought in the interlocutory application and the claim based on this 1980 Marovo Local Court decision can only be relevant if the unwanted activities or actions of the Defendant and his family members had occurred on Moluana Ulu Island. Unfortunately, that cannot be of any use in any Court proceeding for Vichu.
14. I do not have any evidence of referral of the Vichu customary land to the Chiefs pursuant to the Local Court Act by the parties to this proceeding. In the absence of any referral of the dispute to the Chiefs, there is no serious question or issue to be tried as authoritatively stated in Simbe v East Choiseul Area Council [1999] SBCA 9. On that basis, the claim for eviction and trespass cannot be sustained for the principal reason that I do not have any court decision favourable to the Claimant and his Nono tribe over Vichu that is binding against the Defendant and his tribe. For this reason, the entire proceeding must be declared frivolous and vexatious, and without a cause of action.
15. Since there is no serious issue to be tried, it must follow that the balance of convenience accordingly favours a complete discharge of the ex parte orders. For it is inappropriate to have the orders maintained for trial when there is no serious or bonafide issue for trial. This same conclusion is reached for other considerations that damages would be an adequate remedy and undertaking as to damages. As said earlier, I have found that the entire proceeding has no grounding. It is based on a loose footing. The Defendants’ counsel rightly described it to be “devoid of all merit”. As such, these two considerations will naturally be invalidated or extinguished, and no longer necessary to maintain the ex parte orders for trial.
16. The application to discharge the ex parte orders is granted.
17. I have carefully considered the claim in light of the 1980 Marovo Local Court decision and considering the irrelevance of the decision and impossibility of the case succeeding at trial, I am of the view that this proceeding is one that must be dismissed accordingly by the Court’s own motion pursuant to Rule 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
18. Parties are to bear their own costs.

Orders of the Court

1. The application to discharge the ex parte orders is granted.
2. Consequently, the ex parte orders issued by the Court on 5^th July 2024 are fully discharged.
3. The entire proceeding is dismissed by the Court’s own motion pursuant to rule 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
4. Parties are to bear their own costs.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE

^[1] [1975] UKHL 1; [1975] AC 396.