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Amoi v Hona [2025] SBHC 14; HCSI-CC 454 of 2023 (12 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 454 of 2023

BETWEEN:

CHACHABULE AMOI
Claimant

AND:

FAIRTRADE COMPANY LTD
Second Claimant

AND:

JOHN HONA, JAMES HALO, KUKUNA CHRISTMAS, ROLTON KINIO & JEFFREY RUSA
(Current Registered owners of PN 143-001-24)
First Defendant

AND:

SUNWAY LTD
Second Defendant

AND:

REGISTRAR OF TITLE
Third Defendant

AND:

COMMISSIONER OF FOREST
(Rep Attorney General)
Fourth Defendant

Date of Hearing: 16 May 2024
Date of Ruling: 12 February 2025

For the Claimant: 16 May 2024
For the First & Second defendant: Tongarutu N
For the Third & Fourth Defendant: Harara A

RULING ON APPLICATION UNDER RULE 12.11 AND ON APPLICATION TO STAY PROCEEDING

Kouhota PJ
Introduction

There are two application before the Court for consideration. The first is an application by the First and Second Defendants for determination of points of law under rule 12.11.filed on 28^th October 2024, and the Second is an application by the Claimant to stay the proceeding, filed on 19^th November 2024. I will consider both application together.

The First and Second Defendant’s Application

The First and Second Defendant in their application seek inter-alia, the following orders:

1. A declaratory order that the land boundary of Ghoanahai/Riki customary land described in Native Appeal case No.5 of 1972 in as far as the Claimant are concerned is Res-judicata as between themselves and members of the Tobakokarapa Tribe.
2. A declaration order the Claimant are statue barred by virtue of section 233 of the Lands and Title Act (CAP 1330 and section 3 of the Limitation Act [8] from claiming ownership of Geruna registered land PN 143-001-24
3. A declaration order that the deed of Release and Settlement dated 30^th December 2019, is null and void.
4. A declaration order that the consent order prefer on 3^rd February 2023 is null and void.
5. A declaration order that the Fourth Defendant’s action in suspending Felling licence No. A.102303 and by freezing the proceed of logs exported in the permit amount to subjudice and contempt of the Court process and orders is an abuse of his office.
6. A consequential order to paragraph 5 herein that Notice of suspension of licence No. 102303 is null and void.
7. A declaratory order that the First Claimant is not mandated by the Tobakokarapa tribe to commence these proceedings on their behalf.

The Defendants is support of their application relied on a number of sworn statement filed by a number of people some whom are the First Defendants. These included the sworn statements of Kukuna Christmas filed on 3^rd December 2024, sworn statement of John Honi filed on 23/4/24, Plinty Vigulu filed on 11/3/24 and others. In his sworn statement, Mr. Kukuna deposed that the logs exported were harvested from the registered land, PN 143-002-02. He deposed that Mr Chachabule is claiming Geruna for himself and not for Tobakokarapa tribe and that the tribe did not authorised him to claim the portion of the registered land. He stated that they know the boundary of the land covered in Native Land Appeal case N0. 52 of 1972 and did not encroached on the land. In her submission, Counsel for the Defendant had outline the evidence in support of the application. The Court took note of the evidence and consider them.

Counsel for the Claimant/Respondent submit that relief sought by the Defendant’s application under rule 12.11 are issues that are the subject of the Claimant’s appeal to the Court of Appeal. He also submit that the action of the COF are matters that will be contested at the trial.

Counsel for the Claimant also submit that any reference and reliance by the Respondent on the issues of law in the application, would be procedurally wrong on the basis that the issues of law are contested by the Claimants in their Notice of Appeal filed 27^th September 2024, and that the Defendant’s application on questions of law issues raised are contested issues before the Court of Appeal.

Counsel also submit that any order made on the question of law the Defendant is seeking will be contrary to the established principal enunciated in Emco Pacific (SI) v Anita Emmet [2012] SBCA 7, which forbid the Court to make orders that affects or interferes with other proceedings. Counsel submit that the subject matter of appeal is contesting the issues relating to questions of law raised by the Defendant and should be left to for the Court of Appeal to deal with. Counsel therefore submit that the stay is just and reasonable.

The Defendant purportedly filed its application pursuant to rule 12.11, however it is obvious the question of law, the Defendant asked the Court to determine are all coached as seeking declaratory orders, not as question of law. I consider that is not the correct way to file an application under rule 12.11 of CPR. I consider the appropriate way is the issues should be in form of questions or statements for the Court to determine. For this reason, the Defendants application is defective and must be dismissed.

The Claimants Application

The Claimant/Applicant in his application seek the following orders;

1. An order to stay execution of the orders arising out of the ruling made on 26^th August 2024 pending the determination of the Appeal filed pursuant to section 19 (f) and (g) pf the Court of Appeal Act (Cap 6)
2. Orders that this proceeding in civil case number 454 of 2023 be stayed pending the outcome of the Appeal.

Counsel submit that the ownership of the land prior to its registration was settled by Native Appeal case No. 5 of 1972. That the land is currently logged by the Second Defendant, Sunway (SI) Ltd and continues to make shipments despite its licence No. A 102303 is currently been suspended by the Commissioner of Forest. Counsel submit that Licence No. A 102303 is still disputed and suspended. Counsel submits that the matter must be stayed pending the outcome of the Notice of Appeal that was filed on 27^th September 2024.

Counsel Tongarutu, for the Defendant opposed the Claimant’s application and submit that the Claimant had not followed the right procedure with his application. She submit, the Claimants should have applied to set aside the orders of this Court. She also submit that under rule 5.2 of the COA rules does not invalidated the case. Counsel also submit that an appeal does not act as a stay of proceedings. She cited case authorities in support of her submission but did not give copy of those authorities to the Court so the Court did not have the benefit to read the case authorities. While there may be merit in counsel’s submission, I think an appeal is also an option that is open to the Claimant, provided he seek leave to appeal and leave is granted.

In the present case however, the Applicant/Claimant did not produce the notice of appeal or copy of the application for leave to appeal. The Applicant/Claimant did not show that the Court of Appeal had grant leave to appeal. In that respect, I consider there are merit in the submission of counsel for the Respondent/Defendant. I think that the decision of this Court that was appealed still stands until it is over turned on appeal. In view of this the application to stay is refused and dismissed.

Orders

1. The Defendants application pursuant to rule 12.11 is dismissed.
2. The Claimant application to stay proceedings is dismissed.
3. Parties to bear their own cost.

THE COURT
Justice Emmanuel Kouhota
Puisne Judge