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Muna v Holland [2002] SBHC 109; HC-CC 284 of 2001 (28 March 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 284 of 2001

EDDIE MUNA AND ANOTHER

v.

HOLLAND AND ANOTHER AND ATTORNEY- GENERAL

HIGH COURT OF SOLOMON ISLANDS
(F. O. Kabui, J.)

Hearing: 22^nd March 2002
Judgment: 28^th March 2002

Mr D. Hou for the Plaintiffs
Mr G. Samuel for the 1^st Defendants
Mr J. Kenipisia for the 2^nd Defendant

JUDGMENT

(Kabui, J): By a Writ of Summons filed on 25^th October 2001, and a Statement of Claim filed the same day, the Plaintiffs claim the following relief against the 1^st and 2^nd Defendants-

1. An order that the 1^st Defendants within 21 days determine the rightful persons to represent their tribe in respect of Nukuitua land and to sign the lease over that land, to appoint the rightful persons as trustees to sign the said lease, to account for the monies received in respect of the land and to determine the shares to be received by each family.
   
2. An order that the 1^st Defendants release the Plaintiffs’ share from the $150,000,000 already received by the 1^st Defendants.
   
3. Alternatively, an order that the Plaintiffs be paid their share out of the $65,000.00 soon to be received plus their outstanding share of the $150,000.00 already received by the 1^st Defendants.
   
4. An order restraining the 2^nd Defendant, his servants, agents or otherwise from releasing any further payments to the 1^st Defendants until further order or until compliance with order 1 above.
   
5. An order restraining the 2^nd Defendant, his servants, agents or otherwise from executing the lease over Nukuitua land until compliance with orders 1 above. (Orders 4 and 5 above were granted as interim orders on 31^st October 2001).
   
6. Costs.
   

The Facts

Both ends of the Airstrip on Bellona Island were required to be acquired by the Government to ensure that landing and taking off are safe for flights in and out of that Airstrip. The western end was the Nukuitua customary land. It was acquired in 1999 under the provisions of the Land and Titles (Cap.)and converted into registered land. The sum of $200,000.00 was agreed to be paid by the Government up- front as consideration for the use of the western end as customary land since 1968. The 1^st Defendants were the persons with whom the acquisition officer had negotiated the lease of Nukuitua land. They were the signatories in the lease agreement executed on 1^st March 2001. Of the sum $200,000.00, $150,000.00 had been paid and received by the 1^st Defendants. The next $50,000.00 plus $15,000.00 are in the process of being paid but cannot be released against the interim injunction imposed on 31^st October 2001.

The Issue

The issue here is clearly the determination of whether or not the Plaintiffs and the Defendants are members of the same family. There is a dispute over the effect in custom of custom adoption in this regard. The affidavit of Holland Billy filed on 21^st March 2002 is fairly clear on this point. This issue may determine who should be the trustees in custom. The Plaintiffs are claiming that they should be the trustees and not the Defendants although the parties are members of the same tribe in custom. This dispute arose because Nukuitua land was acquired when the late father of the Plaintiffs was away as a student in Vanuatu in 1999. However, in their defence filed on 27^th February 2002, the 2^nd Defendants alleged that they did the negotiation in 1999 with the authority the late father of the Plaintiffs. Whilst this may be so, the unequal distribution of shares has adversely affected the Plaintiffs and is the cause of this dispute.

What should be done?

Whilst Counsel for the Plaintiffs, Hou, argued that the 1^st Defendants had breached the principles of trust he did not seek any specific remedy under the provisions of the Trustee Act, 1925 of the United Kingdom which applies in Solomon Islands. There is however an interim injunction in place to protect the Plaintiffs. The orders sought by the Plaintiffs are rather premature in nature in that they assume that the Plaintiffs at least do have equal rights, if not better rights, to be trustees than the 2^nd Defendants. This is indeed what is unclear at the moment. To be true trustees it must be shown in custom that the Plaintiffs are the members of the tribe that owns Nukuitua land now registered land. It means that the dispute must be referred to the Chiefs for determination and then to the Local Court etc. if necessary. In fact, Eddie Muna has done this as evidenced by his affidavit filed on 5^th March 2002 supported by Exhibit “A” attached to that affidavit. Clearly, this Court has no jurisdiction to hear such dispute on the authority of Gandly Simbe v. East Choiseul Area Council, Steven Taki and Peter Madada as stated by the Court of Appeal (see Appeal No. 8 of 1997) and followed in subsequent cases in this jurisdiction. For this reason, I will preserve the interim injunction granted on 31^st October 2001 until the Chiefs have determined the dispute between the parties in this case also on the authority of Gandly Simbe’s cited above extended by this Court to the Chiefs’ forum as a legitimate body to hear disputes in customary land or matters affecting customary land. (See John Osiramo v. Mesch Aeounia cc020/2000,Nathan Kere v. Paul Karana cc258/2000,Joe Rody Totorea, Roeroe & George Ahukeni v. Taiarata Integrated Forest Development Company Limited & Bulecan Integrated Wood International Pty Limited cc204/2000 and Harold Hilly (as representative of himself and his family and the members of Nono tribe v. Letipiko Balesi & Others (Trading as J. F. Enterprises Limited) & Attorney-General (as Representative of the Commissioner of Forest). I will not grant Orders 1, 2, 3 and 4 above because the dispute between the parties has not yet been resolved in favour of the Plaintiffs by the Chiefs. It is premature to grant them at this stage of the case. I will not also grant Order 5 because the lease had already been executed on 1^st March 2001 long before the Plaintiffs filed their Writ of Summons on 25^th October 2001. Each party will meet his own costs.

F.O. Kabui
Judge