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Maeke v Pukuvati [2016] SBHC 36; HCSI-CC 474 of 2014 (10 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 474 of 2014 & 19 of 2014

BETWEEN:

DOREEN MENHUNU MAEKE
1st Claimants

AND:

ROSELYN GESE DETTKE
2nd Claimants

AND:

PETER PUKUVATI & OTHERS
1st Defendants

AND:

PERMANENT SECRETARY
(Ministry of Finance)
2nd Defendant

AND:

ACCOUNTANT GENERAL
(Ministry of Finance)
3rd Defendant

AND:

PERMANENT SECRETARY
(Ministry of Mines, Energy &
Rural Electrification)
4th Defendant

AND:

PERMANENT SECRETARY
(Ministry of Lands, Housing & Survey)
5th Defendant

AND:

COMMISSIONER OF LANDS
6th Defendant

AND:

ATTORNEY GENERAL
7th Defendant

Date of Hearing: 10th March 2015
Date of Ruling: 10th March 2015

Ms. L. Ramo for the Claimants
Mr. P. Tegavota for the 1st Defendants

RULING

Maina J:

There are two Civil Case files registered for this action. One was for an application by interlocutory relief under Rule 7.9 of the Civil Procedure Rules 2007 (CRC) was filed for restraining orders. And another was created for the proceeding or filing of the claim was commenced.

The case files are HC/CC: 474 of 2013 and HC/CC: 19 of 2014. Both case files relate to the same action and are now consolidated.

The First Defendants filed an application on 3rd March 2014 with amendment on 7th August 2014 and seeks the following orders:

1. Ex parte orders dated 18th December 2013 be set aside.
   
2. The First and Second Claimants be ordered under Rule 3.43 of the Civil Procedure Rules 2007 to provide proof of their entitlements in custom to act as representative of the Taonavua and Ganiqoana sub tribes of Gaubata tribe of Tandai.
   
3. The Claimants be ordered not to take any further proceeding in this action until they have satisfied the requirement of Rule 3.42 of the Court Rules.
   
4. The action be dismissed or struck out on ground that the Claimants do not disclose any reasonable course of action against the Defendant.
   
5. As an alternative order, the claim by the Claimant be struck out as it do not disclose any reasonable course of action against the first Defendants or the claim constitute proceeding amounting to an abuse of the court process.
   
6. That the Claimants be ordered to pay cost of this application.
   
7. That the Court to such other order or further orders against the Claimants as the court sees fit.
   

To support this application the Defendant relied on the statement of the case pleaded in the amended application, statement of Defence of the First Defendants filed on the 10th February 2014 and sworn statements of Peter Pukuvati, Vincent Kurilau and John Tupe filed on 29th March 2014, 8th August 2014 and 18th March 2015 respectively.

Council for the Defendants also informed the Court that Peter Pukuvati who is also named with the First Defendant and for Ganiqoana sub tribes is now deceased.

Brief Background

Briefly this action of the First and Second Claimants arise out or relates to the payment from the Government derived the Kongulasi water source lease of Perpetual Estate No. 191-06-1.

The First and Second Claimants filed an ex parte application under Rule 7.9 of the CRC and on 18th December 2013 obtained orders to restrain inter alia the Frist Defendants from demanding monies payable by SIG in respect to Kongulai water source and restrain the SIG to pay out the monies for the water source.

On 28th January 2014, the Claimant filed the claim in this action for various orders; one is to remove the First Defendants as Trustees and to have the Claimants substituted as trustees. The claim was served and the First Defendants filed a response.

On 3rd March 2014 the First Defendants filed this application and on 7th August 2014 filed an amended application.

On 28th July 2014 the Court on the application by the Defendants and supported by Counsel for Attorney General the Court removed Orders 3 and 4 of the orders made on 18th December 2013. An application to reinstate the two orders is pending a hearing.

Facts not disputed

There is no dispute that land in Kongulai water source lease of Perpetual Estate No. 191-06-1 is owned by Taonavua and Ganiqoana sub tribes of Gaubata tribe of Tandai. It is currently leased the sub tribes received the payment from the Government derived the Kongulai water source lease of the Perpetual Estate.
And the First Defendants are trustees each is responsible for the various families within respective sub tribes for the distribution of payments received from the Kongulai water source lease. Mr. Peter Pukuvati (Deceased) was responsible to the Frist Claimant families.

Issues

From the application of the Defendants, the issues are obvious and are:

1. Whether the Claimant has locus standi or standing to bring this claim to the Court?
   
2. Whether the ex parte orders be set aside and
   
3. Whether the application to strike out is procedural.
   

For the issues 2 and 3, if the Court rules that the First and Second Claimant has no standing the interim order would be discharged and the application to strike out would be upheld.

Issue 1

This issue of standing relates to entitle in custom by First and Second Claimants to represent the owners and beneficiaries of Kongulai water source land, Perpetual Estate No. 191-06-1 in the claim.

First and Second Claimants relies in their joint sworn statements filed on the 17th December 2013 and 30th June 2014 say they are entitled in custom to represent the two Gaubata sub-tribes and Kakau Roha sub-tribe in this action and seek orders to change the trustees.

Counsel for the First and Second Claimants in her submission said the Claimants were conferred authority by late Savino Laugana, Paramount Chief of Gaubata Hanigoana sub-tribe of Gaubata tribe to represent Gaubata tribe in custom of the land and they themselves are members of Gaubata Tanigoana sub-tribe and owners of the land. And they also have the support of some of 109 members of Gaubata tribe.

The purported authority was contained in the statutory declaration by late Savino Laugana and the support of members of Gaubata tribe is exhibited in the joint sworn statements of the Claimants.

There are documents produced to the Court that relates to the general acquisition process but does not much relate to the issues of Gaubata tribe sub-tribes and Kongulai water source.

Counsel for the Defendants in his submission made references to two sworn statements filed on the 28th March 2014 and 8th August 2014 and stated that Claimants have no standing to represent the two sub tribes in this claim as both were not appointed in accordance to custom or the members and beneficiaries of two Gaubata sub-tribes.

Position of Doreen Maeke

Counsel for the Defendants said his client did not dispute the signing of the statutory declaration by late Savina Laugana and Onesimo Reinunu however they say there are discrepancies affecting this statutory declaration which undermines the First and Second Claimants' appointment to represent the Taonavua and Ganigoana sub-tribes.

And what alleged to be the discrepancies for Doreen Maeke are:

1. The power of Reinunu in custom to appoint Doreen Maeke to represent Taonavua and or Ganigoana sub-tribes as she is member of Kakau tribe and has no beneficial interest or registered ownership over Kongulai water source or Perpetual Estate No. 191-061-1.
   
2. The appointment of Doreen Maeke's appointment by Late Savino Laugana to represent the Ganigoana sub-tribe was not approved by the tribal members of the said sub-tribe.
   
3. The appointment of Doreen Maeke was to represent the Ganigoana sub-tribe and its members and not the Taonavua sub-tribe and its members. And so she has no authority to represent the Taonavua sub-tribe and its members; and
   
4. Peter Pukuvati (now deceased) in his sworn statement filed on the 20th March 2013 disputed Maeke to represent the Ganigoana sub-tribe and its members on the grounds that the majority of the Ganigoana tribal members did not appoint her as their representative. And late Pukuvati asserts that he is the representative of the Ganigoana sub-tribe on the ground that he inherited his powers from the late Savino Laugana.
   

Counsel for the Defendants submits that the signatures accompanied in the statutory declaration of late Savino Laugana and Onesimo Reinunu alleged to be signed by the Gaubata tribal members generally, the Gaubata Ganigoana sub-tribal members, Kakau tribal members, Kidipale tribal members, Lakuili tribal members and Simbo tribal members. The first Defendants said this does not assist the First Claimant position in providing proof in custom that she is entitled to represent the two sub-tribes and their members.

The signatures were from different tribes within North West Guadalcanal support the Claimant's action and do not provide proof of her entitlement in custom to represent the two Gaubata sub-tribes. The signatures of Kakau, Kidipale tribal member, Lakuili and Simbo tribal members as disposed in the Claimants' sworn statement at paragraph 13 said that they support the action but the problem is that they do not have any ownership and beneficial rights and registered interest over Kongulai water source.

Defendant said the owners of Kongulai water source consist of two sub-tribes of Gaubata tribe only and they are Ganigoana and Taonavua sub-tribes.

Position of Roselyn Dettke

Again Counsel for the Defendants submits that the position of the Second Claimant Roselyn Dettke is similar to the First Claimants' situation as noted earlier. Defendants do not dispute the signing of the statutory declaration by late Savina Laugana and Onesimo Reinunu but alleges discrepancies that affect this statutory declaration and would to not entitle the First and Second Claimant's appointment to represent the Taonavua and Ganigoana sub-tribes.

Again the related and similar discrepancies are:

1. The late Savino Laugana has no power to appoint Roselyn Dettke to represent Taonavua and or Ganigoana sub-tribes as Roselyn Dettke is not a member of either Taonavua or Ganigoana sub-tribe but from Kakau tribe. She has no beneficial interest or registered ownership over Kongulai water source or Perpetual Estate No. 191-061-1.
   
2. Reinunu is a member of Kakau tribe and has no power to appoint Roselyn Dettke of Kakau tribe of who to represent Taonavua and or Ganigoana sub-tribes. He has no beneficial interest or registered ownership over Kongulai water source or Perpetual Estate No. 191-061-1.
   
3. This appointment of Roselyn Dettke by Late Savino Laugana and Reinunu to represent the Ganigoana sub-tribe was not approved by the tribal members of the said sub-tribe.
   

Similar to Doreen Maeke, the appointment of Roselyn Dettke was to represent the Ganigoana sub-tribe and its members and not the Taonavua sub-tribe and its members. And so she has no authority to represent the Taonavua sub-tribe and its members.

That clearly shows that she has no authority to represent Taonavua sub-tribe and its members by virtue of her appointment under the purported statutory declaration.

With the signatures accompanied in the statutory declaration of late Savino Laugana and Onesimo Reinunu the Defendants submits they are from different tribal members and such would not assist the First Claimant position in providing proof in custom that she is entitled to represent the two sub-tribes and their members.

Law and Custom Practices on Registered customary land

This action involves a former customary land now being a registered land. One of the characteristic of customary land is that it is tribally owned by community, tribe, line or group and this aspect of it is regulated by the custom practices (custom law and it is of unwritten nature) of the people where the land is situated. Whether the customary land is converted to or registered land, that aspect of it cannot override by the written law i.e. Lands and Titles Act. The issues as ownership and entitle to represent owners and other related matters requires proof by custom or process and determination.

It is therefore important to distinguish or tell between the written laws and custom in the type as this case's situation or what part is regulated by custom practices.

Although a land is registered there are matters or issues as ownership, representation and others that require proof by custom law process or determination before taking up a case that was converted to registered land. If such do exist the law has created a system to deal or determine the disputes and matters relates to the customary land and aspect of custom issues or matter on customary land acquired and registered under the Lands and Titles Act (Cap 133) otherwise this Court deals with only issues on points of law.

And in this jurisdiction before a person who claims to entitle to represent takes up a land case to the Court such proof by custom is essentially the requirement unless it is not challenged however the Court on own initiative may direct if it see as necessary.

As commonly understood in this jurisdiction this Court has no jurisdiction to deal with issues of custom and if arises or to assist in this matter, the starting point or guidance is Rule 3.42 of the Civil Procedure Rules 2007 which states:

3.42 "Any person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing the community, line or group, but the Court, on the application of any party, or on its own initiative, may require that person to provide proof of their entitlement in custom to act as such a representative before any further step in the proceeding may take place".

The Rules provides for who are entitled in custom to represent a community, tribe, line or group have authority from the owners of the land. It is for Claimant in the case to provide a proof of his entitlement in custom to act as such a representative.

What is remarkably noted from First and Second Claimants evidence is the right or entitled to represent the Taonavua and Ganigoana sub-tribes or in this action by the authority said to confer by late Savino Laugana, Paramount Chief of Gaubata Hanigoana sub-tribe of Gaubata tribe. That is as contained in the statutory declaration by late Savino Laugana and Onesimo Reinunu of Kakau tribe made on 14th December 2012.

The statutory declaration by late Savino Laugana and Onesimo Reinunu is not disputed as them who had signed it however, there are allegedly discrepancies surrounding or of it as described by counsel for the Defendant. It undermines the right or entitlement of the First and Second Claimants' appointment to represent the Taonavua and Ganigoana sub-tribes as it was not approved by the sub-tribes who are the owners and beneficiaries of Kongulai water source. With Onesimo Reinunu he is from Kakau and does not have right to appoint the Claimants to represent the owners and beneficiaries of Kongulai water source.

There are signatures obtained in the meetings that supports the First and Second Claimants and the indication is that the supporters purportedly from Gaubata Taonavua and Ganigoana sub-tribes, Kakau, Kidipale, Lakuili tribal and Simbo tribes. From the papers with the Court they the support is for the First and Second Claimants to this action.

The land concerns a former customary land now being a registered land and the issues of tribal ownership and entitled to represent owners among other related matters requires proof by custom or process and determination. For this matter, it is entitled in custom to represent the Gaubata-Taonavua and Ganigoana sub-tribes as required by Rules 3.42 of the CPR.

From the First and Second Claimants, the evidence the standing is the appointment or authority conferred in the statutory declaration by late Savino Laugana and the signature and supports of the various tribes. For these there is no evidence adduced that this made in according to custom.

As for the former, it should be a declaration of an act or occasion that they had acted or occurred but the appearance of the content is an instrument of appointment. That would reflect that it is not done in custom.

With the signatures of the supporter, the meetings were done to get support for this action and signed by various tribe members along the Tandai and whether this method is within the custom practices was no disclosed to the Court.

The land related to this action though it now registered land its characteristic as noted earlier is tribally owned and entitlement in custom to act for the representative of the owners is governed by the custom practices. The evidence of the First and second Claimant on this issue of standing by appointment by late Paramount Chief Savino Laugana and the support of people who signed documents to support this action do not support any entitlement in custom to act for the representative or to represent the owners and beneficiaries of Kongulai water source.

First Claimant is from the sub-tribe but there is no proof in custom or that the owners and beneficiaries of Kongulai water source has given to him the right to represent them.

The act of taking up the claim by the First and second Claimants for the sub-tribe owners and beneficiaries of Kongulai water source without approval in custom is an act or the claim that an abuse of the Court process. That would deny that the First and second Claimants has no standing to take this claim.

ORDERS

1. The First and Second Claimants have no locus standi or standing to bring this claim.
   
2. From the basis of Order I:
   
   • (i) On issues 2, the interim order and application to reinstate the interlocutory is discharged and
     
   • (ii) On issue 3, the claim is strike out.
     
3. Cost of this application including the entire proceeding assessed on indemnity basis to the Defendants.
   
4. No further orders.
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge