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Pitasua v Zilevole [2025] SBHC 6; HCSI-CC 265 of 2024 (28 January 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 265 of 2024

BETWEEN:

STENNER MANIA PITASUA
(Representing Matana clan of Luluki tribe, South Choiseul, Choiseul Province)
Claimant

AND:

FRANKLIN ZILEVOLE, JOHN SOSOLOKO, KOENI GAVERA, PITAKAKA SOLOLOKO, INOKE RATU, PITA ZILEVOLE, LEKEVOLOMO BAU, GRAHAM NANAVOLOMO, JAMES ISARI AND JACK KEREVO
Defendants

Date of Hearing: 29 November 2024
Date of Ruling: 28 January 2025

Mr. C. Lagobe for the Claimant
Mr. B L Dalipanda for the Defendant

RULING

AULANGA PJ.

1. The Defendants apply to set aside the ex parte interim orders and ultimately, to strike out the claim on the grounds that it is frivolous, vexatious and is an abuse of the Court’s process. The application is made pursuant to Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007. The Defendants also seek in the alternative, an order compelling the Claimant to provide proof of his entitlement in Lauru custom to represent the Luluki tribe for this proceeding.
2. The Defendants principal contention in this application is the lack of standing of the Claimant in Lauru custom to institute the proceeding in Court. Another one is the lack of proof of ownership of the Matana land within Luluki as binding against the Defendants since a 1969 Malango House of Chief decision relied on by the Claimant is not a legal decision recognised in law. It is only an informal Chief’s decision without any legal and binding effect.
3. The Claimant’s case is rather straightforward and maintains that he is entitled to the reliefs in the claim based on two principal assertions. First, his clan had granted him the mandate to commence this proceeding in Court and second, their purported clan’s ownership of the Matana customary land within Luluki as awarded by the 1969 Malango House of Chief decision perceived as giving them the right to bring the proceeding in Court.
4. The ex parte orders were issued to maintain the status quo of the case, pending inter parte hearing or further orders of the Court. It is needless for me to outline the terms of the orders since they are self-explanatory.
5. The Claimant also filed a claim Category A seeking orders for eviction of the Defendants and their family members from Matana, a portion of land within Luluki in the Choiseul Province; permanent injunction to restrain the Defendants from effecting intimidation and associated unlawful activities on the Claimant and his family members; permanent injunction against the Defendants from damaging of the Claimant and his family members properties’ including gardens and crops on Matana land; permanent injunction against the Defendants from erecting houses or buildings or structures on Matana land and for the Defendants upon eviction not to re-enter the Matana land. And finally, for costs.
6. It is obvious from the pleadings that the reliefs sought in the claim and issues for trial will be one of trespass and eviction from the Matana land. Another is for the protection of the Claimant from unlawful and violent activities from the Defendants, an issue interconnected with trespass onto the Matana land.
7. Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 states:
   • “9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
   • (a) the proceedings are frivolous or vexatious; or
   • (b) no reasonable cause of action is disclosed; or
   • (c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”

8. In Beni v Karena Ltd [2019] SBHC 73, Keniapisia J made these following observations regarding an application to strike out a claim which is worth noting, at paragraphs 8 – 11:
   • “8. Defendants, applied to strike the claim, under Rule 9.75 (a) – (c), saying the claim is frivolous and vexatious, disclosed no reasonable cause of action or is an abuse of court process. To say a claim is frivolous and vexatious means, the claim lacks merit and was brought for an ulterior purpose or is devoid of all merit and cannot succeed and that no reasonable person could properly conclude that the grievance is bona-fide.
   • 9. To say a claim disclosed no reasonable cause of action, the consideration is: Whether the claim has disclosed a cause of action with some chances of success, or whether the claim has disclosed a tenable cause of action for the reliefs sought?
   • 10. For abuse of court process; the consideration is: Whether the claim is one which no reasonable person could properly conclude that the grievance is bona-fide?
   • 11. The well-known Tikani case, one of leading authorities on strike out, says that, if the statement of case disclosed some issues or questions fit to be tried, the mere fact that it is weak and not likely to succeed is no ground for striking. Only if the cause of action is certain to fall then the claim should be struck out. If the claim is weak due to defective pleading, court can cure through amendment. Court’s power to strike should be sparingly used in plain and obvious cases, where no amendment could cure the defect. In Sa’oghatago case, court can consider evidence under the 2007 Rules, but not a detailed and in-depth analysis, as one would do at trial.”
9. Having outlined the relevant law to this application, it appears that there is a serious and contentious issue raised in the claim, such as for trespass and eviction of the Defendants from the Matana land. However, these issues are centred on the important issue of ownership of the Matana customary land. In this case, in my view, there must be evidence of proof of ownership of the Matana customary land, that is binding on the Defendants, to ascertain that the case does not have a cause of action but one that is not bound to fail. To assist me on this, I refer to the case of Joe Totorea Roeroe and George Ahukeni v Taiarata Integrated Forest Development Company Limited and Bulacan Integrated Wood International Pty Limited [2000] SBHC 35, where the Court made it clear that (at page 2)“no party should not come to the High court for an interim injunction on the ground of trespass to customary land until that party had obtained a final decree of ownership between the disputing parties”
10. I have had the opportunity to look at the 1969 Malango House of Chiefs decision of Lazarosi v Zakele. The said purported Chief’s decision was annexed as “SMP 1” in the Claimant’s sworn statement filed on 10^th July 2024. This is the decision that the Claimant asserts it awards ownership of the Matana customary to their clan and the right to commence this proceeding against the Defendants. When I looked at this decision, all I can conclude is that this document is not a formal Court decision at all. It should be noted that in 1969, the legislative scheme in Solomon Islands for formal settlement of customary land cases is yet to include the House of Chiefs as the first forum for adjudication of customary land dispute cases equivalent to section 12 (1) (a) of the Local Court Act. In that era, the first Court to hear customary land cases is the Native Local Court. On appeal, it would be the Native Land Appeal Court as supervised by the High Court of the Western Pacific. Despite the nonexistence of a formal House of Chiefs panel under a statutory regime in 1969, the Claimant saw it fit to assert and rely on this document as proof of ownership of the Matana customary land which is legally erroneous. As such, this document is only a decision from an informal sitting of the Malango House of Chief which does not have any legal recognition and validity. Accordingly, I must reject the 1969 Malango House of Chiefs decision as proof of ownership of the Matana customary land and consequently, I hold that the Claimant did not have any proof of ownership of the Matana customary land to support his claim for this proceeding.
11. In the absence of the evidence of ownership of the Matana land, all the evidence in the sworn statements of Woodley Mulele, Fay Brock, David Buala, Barclay Liliti and Stenner Maina Pitausa, relied on by the Claimant, regarding their claim of ownership of the Matana land in custom must be rejected for the obvious reason that it is not the function of this Court to decide on the customary ownership of the Matana land. The appropriate Courts to adjudicate on customary ownership dispute are the ones established under the Local Court Act (Cap 19)
12. The Claimant relied on the appeal against the Babatana Council of Chiefs decision to the Local Court annexed to the Further Sworn Statement of Stenner Mania Pitasua as a submission to indicate a serious issue for trial that requires the preservation of the ex parte orders. In Court, counsel Lagobe submitted that the Claimant’s party was not a party to this dispute before the Babatana Council of Chiefs. If that is so, I do not think any reliance on that referral to the Local Court is proper since the right to refer the dispute for the Local Court only applies to the parties to the dispute before the chiefs as provided under section 12 (2) and (3) of the Local Court Act (Cap 19).
13. Further, the issue of the need for protection of the Claimant from the violent and unlawful activities may well be an issue that is linked to trespass to property which I have already covered. The Court cannot grant a blanket order when the claim does not have a cause of action. The Claimant’s claim in that regard must be rejected as well.
14. Next, is the issue regarding the lack of standing in Lauru custom to litigate this matter in Court was also raised by the Defendants as one of the grounds to strike out this proceeding. While there is evidence on that being placed before this Court, in my view, this is one of the issues to be considered should the matter goes for trial. However, in this case, there is a competing claim by both parties on their customary rights to bring the matter in Court. A good number of family trees and genealogies were presented to support their varying claims. In my view, these are all customary matters. The question of whether the Claimant has the requisite right in the Lauru custom to litigate this matter before this Court, requires customary deliberation and decision which should be determined by the customary courts. If this Court is to make a finding on this issue, it will enter into an arena of customary inquiry that raises an issue of whether this Court has the power to enquire into matters of custom for the purpose of deciding the standing of the Claimant, as recognised by the Lauru custom, to represent the Matana clan in Court.
15. Based on the above reasons, in my view, this claim is devoid of all merit and cannot possibly succeed if the matter goes to trial. It is obviously untenable, so much so that it is bound to fail if it proceeds to trial. Consequently, the Defendants’ application to strike out the entire proceeding must be granted pursuant to Rule 9.75 (a) (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. All the ex parte orders shall also be wholly set aside and discharged. Costs of this hearing shall be paid by the Claimant on standard basis.

Orders of the Court

1. The Defendants’ application to strike out the entire proceeding must be granted pursuant to Rule 9.75 (a) (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
2. The ex parte orders shall also be entirely set aside and discharged.
3. Costs of this hearing will be paid by the Claimant on standard basis.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE