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Hilli v Balesi [2002] SBHC 104; HC-CC 224 of 2001 (19 February 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 224 of 2001

HAROLD HILLI AND ANOTHER

V

LETIPIKO BALESI AND OTHERS

HIGH COURT OF SOLOMON ISLANDS
(FRANK O. KABUI, J.)

Date of Hearing: 15^th February 2002
Date of Ruling: 19^th February 2002

Mr D. Hou for the Plaintiff
Mr G. Deve for the 5^th Defendant
Mr P. Tegavota for the 6^th Defendant

RULING

(Kabui, J): There were two applications to be dealt with at 9:30 am on Friday 15^th February 2002. The first application was filed by the Plaintiffs on 31^st January 2002 seeking leave to further amend the Writ of Summons and the Statement of Claim filed by the Plaintiffs on 15^th August 2001. Counsel, Mr Apaniai, whom I understood was acting for the 1^st-4^th Defendants did not appear in Court to represent those Defendants. No reason was given for his absence. Counsel for the Plaintiffs, Mr Hou, told me that the Notice of Hearing had been placed in the pidgeon-holes of the Solicitors acting in this case suggesting that Mr Apaniai must have also received the Notice of Hearing on behalf of his clients. Counsel for the 6^th Defendants, Mr Tegavota, did not oppose the application but did point out that under Order 17, rule 12 of the High Court Rules 1964 (The High Court Rules), adding a party to the proceedings would need an application by way of a Motion or Summons. He was also quick to point out to me that the Court did have the power to act under rule 11 of that same Order of the High Court Rules but not in this case. Counsel for the Plaintiffs, Mr Hou, disagreed and urged me to exercise my discretion under rule 11 and decide in favour of Jonah Hiti being added as one of the Plaintiffs representing the Nono tribe. The reason being that Mr Hilli's membership of the Nono tribe was being disputed. I granted the application in favour of the Plaintiffs on the ground that Jonah Hiti is a legitimate member of the Nono tribe. The other application was filed by the 6^th Defendant on 12^th December 2001 seeking an order to stay the action commenced by Mr Hilli in the Writ of Summons filed on 15^th August 2001. No affidavit evidence was filed by the 6^th Defendant to support its application. However, Counsel, Mr Tegavota, relied upon my ruling on 6^th November 2001 in which I said issues of custom pertaining to ownership of customary land must first be determined by the Chiefs etc, such issues being beyond the jurisdiction of the High Court. These issues are set out in the 6^th Defendant's Summons as follow-

1. Whether or not Mr Hilli is a member of the Nono tribe;
   
2. If he is, then whether he and other members of the Nono tribe must first be consulted before logging can be permitted on Nono land;
   
3. Other customary issues.
   

The background facts in this case are set out in my rulings on 27^th August 2001 and 6^th November 2001. I need not repeat them here.

Counsel for the Plaintiffs opposed the 6^th Defendant's application on the ground that the issues raised by the Plaintiffs' Statement of Claim were issues of law, which the High Court should entertain as being requested by the Plaintiffs. The issues are the non-compliance with the requirements of section 8 of the Forest and Timber Utilization Act (Cap. 40) and consequently the validity of the Timber Rights Agreement and the Licence No. A10102 issued to the 4^th Defendant. Whilst writing this ruling, it dawned on me the significance of adding Jonah Hiti as one of the Plaintiffs representing the Nono tribe. Counsel for the Plaintiffs, Mr Hou, told me that Jonah Hiti was the blood brother of Alick Ngira, the 2^nd Defendant. The point of significance is that Jonah Hiti would have no trouble in establishing his membership of the Nono tribe unlike the Mr Hilli whose membership of that tribe is being disputed. Adding Jonah Hiti to Harold Hilli was a clever strategy in that Harold Hilli is a dummy whilst Jonah Hiti is the real challenger in this contest because his membership of Nono tribe is intact. Most likely, Harold Hilli will be the moving force and the spokesman for Jonah Hiti. Or, he may pull out altogether. I think this is how this case is to be contested in Court. With that scenario, Harold Hilli's membership of the Nono tribe is being put in abeyance for the moment probably until some other time. The effect of this strategy is that it makes the 6^th Defendant's application unnecessary. If Harold Hilli drops out of the contest, that fact will even confirm further the futility of the 6^th Defendant's application. Jonah Hiti has all the right to challenge the validity of the Timber Rights Agreement and the Licence issued to the 4^th Defendant because being a member of the Nono tribe, he has standing to question the validity of the Timber Rights Agreement, the Licence and the non-compliance with section 8 of the Forest and Timber Utilization Act. The position would have been different if Jonah Hiti was not added as one of the Plaintiffs in this case. I would have granted the 6^th Defendant's application for the reasons stated in the 6^th Defendant's Summons. This is obviously a case where I cannot grant the application sought by the 6^th Defendant. To do so would defeat the rights of Jonah Hiti as a member of the Nono tribe whose interest has been affected by the conduct of the Defendants. The 6^th Defendant's application is therefore refused with costs.

F.O. Kabui
Judge