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Ghamukera v Elite Enterprises (SI) Ltd [2025] SBHC 131; HCSI-CC 294 of 2024 (13 October 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 294 of 2024

BETWEEN:

JAMES LETO GHAMUKERA and CYNTHIA LEKONIA GHAMUKERA Claimants

AND:

ELITE ENTERPRISES (SI) LIMITED
First Defendant

AND:

REX KENIHERE, MESACK HANA, FRANK HANA, MARK QAQA, JOSEPH QAQA, JOHN VAIKA and MANUKA HAVEA
Second Defendants

Date of Hearing: 22 August 2025
Date of Decision: 13 October 2025

Mr Marvin Famaea Sanga for the Claimants
Mr Primo Afeau for the Defendants

RULING ON APPLICATION FOR STRIKE OUT

Bird PJ:

1. In this proceeding, Mr James Leto Ghamukera and Ms. Cynthia Lekonia Ghamukera (Claimants) filed a claim against Elite Enterprises (SI) Limited (1^st Defendant) and Messrs Rex Kanihere, Mesack Hana, Frank Hana, Mark Qaqa, Joseph Qaqa, John Vaika and Manuka Havea (2^nd Defendants) seeking permanent restraining orders, damages for trespass and environmental damage. The land in issue is known as Fezorovanga land (subject land), located on Rendova Island, Western Province. The Claimants say that the land belongs to their family. They rely upon a decision by the Lokuru House of Chiefs in Case No. 02/2020 on the issue of ownership.
2. The Claimants assert that the 1^st and 2^nd Defendants have entered the subject land without their knowledge and consent and conducted logging activities therein. Such was the basis of their claim for restraining orders and damages for trespass.
3. Subsequent to an inter partes hearing, I discharged the ex parte interim restraining orders upon the basis that the requirements for the maintenance of the orders were not sufficiently met by the Claimants. I have also discussed in detail the court’s view on the decision relied upon by the Claimants. I had grave issues on the authenticity of the decision that they relied upon. The said decision does not comply with the requirements of section 12 (1) (a) and (c) of the Local Courts Act (Cap 19). I therefore concluded that the Claimants do not have an arguable case.

The application

4. With the above background, the 1^st and 2^nd Defendants filed an application to strike out the Claimant’s claim. Consequent to that is an application for restraining orders. The application is made pursuant to rules 9.76 and 7.38 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). They say that the Claimants’ claim is frivolous and vexatious. It discloses no cause of action and is an abuse of the court process.
5. It is the 1^st and 2^nd Defendants case that since the Claimants claim is based upon customary ownership of the subject land, their claim must be reliant upon a valid court decision. That decision must be litigated between the parties to the dispute and is binding between them. It must be a decision that relates to the issue of ownership and that of the boundary.
6. The 1^st and 2^nd Defendants say that in its ruling of the 19^th September 2024, this court had decided that the chief’s decision relied upon by the Claimants was not effective and valid. Upon that basis and in the absence of a valid court decision on ownership and boundary of the subject land in their favour, the Claimants have failed to disclose a reasonable cause of action.
7. The Claimants’ case also reliant upon the minutes of the Western Provincial Executive (WPE) dated the 15^th June 2023. They say that in the minutes, they raised objections on the subject land. They did not give their consent for logging operations to be conducted therein. In their decision of the 16^th June 2023, the WPE endorsed the application of the 1^st Defendant excluding the subject land.
8. On the contrary, the 1^st and 2^nd Defendants say that in the Form II determination dated the 26^th June 2023, there was no mention of any exclusion to the subject land. The Form II merely determined names of persons who were lawfully able and entitled to grant timer rights. In relation to Qai customary land, the determined trustees are the 2^nd Defendants.
9. The Claimants knew or ought to have known that there were discrepancies in the decision of the WPE and the Form II. They did not utilise their right of appeal under section 10 (1) of the Forest Resources and Timber Utilisation Act (FRTUA). The Claimants therefore do not have any right of recourse against the Defendants. They do not have locus to challenge the validity of Felling License No. A102314 which was issued by the Commissioner of Forests upon due compliance with the timer rights process under the FRTUA. It is therefore the case for the 1^st and 2^nd Defendants that the Claimants claim is frivolous and vexatious and is an abuse of the process of the court and must be struck out.
10. Subsequent to the above, it is also the 1^st and 2^nd Defendants case that since the Claimants lacks locus standi to commence this proceeding and is an abuse of the process of the court, they should be restrained from interfering with their lawful logging operations within their concession area.
11. In support of their application for restraining order is the sworn statement of Mark Qaqa filed on the 11^th November 2024. This court discharged the interim restraining orders in favour of the Claimants on the 19^th September 2024. However, on the 24^th October 2024, the Claimants wrote a letter to the 1^st Defendant demanding them to cease all logging operations on the subject land. On the 5^th November 2024, the first named Claimant and his group went to the 1^st Defendant’s log pond and removed two batteries from an excavator. There is no evidence further evidence before me that the Claimants and members of their group have continued to cause disturbances and interferences with the 1^st and 2^nd Defendants logging operations inside their concession area.
12. It is nonetheless the case for the 1^st and 2^nd Defendants that restraining order be issued against the Claimants and members of their group. They further seek a penal notice to be attached to the order. They also seek cost.

Claimants case

13. In response to the 1^st and 2^nd Defendants application, the Claimants position is that their claim is not frivolous and vexatious. They have disclosed a reasonable cause of action. They say that the 1^st and 2^nd Defendants have entered their land without their permission and consent. They have a chief’s decision in their favour. That decision entitled them to commence this proceeding.
14. The Claimants further say that they have a reasonable cause of action in trespass. The 1^st and 2^nd Defendant have entered their land without their consent and therefore their claim for trespass. They have sighted case authorities on the issue of strike out and I have noted them. I have noted that the cited cases are on pleadings. They don’t concern issues raised by the Defendants in their application.

Discussion

15. The crux of the application by the 1^st and 2^nd Defendants is that the Claimants have no legal basis to commence this proceeding. The decision of the Lokuru House of Chiefs in Case No 2/2020 was not effective and valid. Its authenticity was in issue. Upon that basis, the Claimants are not entitled to come again and say that they are armed with the said decision. That decision is ineffective and invalid.
16. The Claimants’ claim is based on ownership of customary land. Without a valid court decision in their favour, how could they show to the court that they have locus standi to commence this proceeding.
17. Quite apart from the above is the application of the FRTUA on the timber rights process. The Claimants rely upon the decision of the WPE dated the 16^th June 2023 in which they stated inter alia that the subject land was excluded. However, that part of the decision was not factored in or included in the Form II determination dated the 26^th June 2023.
18. In that regard and since they are the aggrieved party, the Claimants should have exercised their right of appeal under section 10 (1) of the Act. They did not do that. By not filing an appeal against the Form II determination, the Claimants became bound by it. That was the view of this court in the case of Mimidi v Lolo [2004] SBHC 133; HCSI – CC 75 of 2004.
19. In light of the issue discussed in the above paragraphs and taking into account the decision in the Mimidi’s case, it would seem obvious to me that the Claimants do not have standing to commence this proceeding. I hereby strike out the Claimants claim with cost. The claimants, their relatives and agents are hereby restrained from interfering with the lawful logging operations of the 1^st and 2^nd Defendants. I hereby order.

THE COURT
Justice Maelyn Bird
Puisne Judge