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Simbe v Vaikesa [2007] SBHC 16; HCSI-CC 371 of 2005 (20 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 371 OF 2005

GANDLY SIMBE and DEROLD GALO, (representing the Dali tribe)
1st applicants;
PENDROSE PANEGA (representing the Pupurukana clan)
2nd applicant

-v-

ROBERT VAIKESA, JOHN KOKORO and LEDLY LUKISI (representing the Vataroe/Volekana tribe)
1st respondents
AMON KAMARO (representing the Babatana Council of Chiefs)
2nd respondent

Date of Hearing: 3 April 2007
Date of Judgment: 20 April 2007

P. Tegavota for the 1st & 2nd applicants
G. Suri for the 1st respondent
M. Bird for the 2nd respondent.

JUDGMENT

Application for certiorari to quash a decision of the Batatana Council of Chiefs decision affecting ownership of customary land and ancillary applications

Brown, J: These proceedings were commenced by the applicants (representatives of the named tribes) by motion filed on the 7 October 2005 seeking a writ of certiorari to quash a determination of the Babatana Council of Chiefs (BCC) concerning Sukuvai Land between the Sukuvai Tribe and the Dali Tribe given on the 25 July 2005. The land is in south east Choiseul although the parties referred to it as being in north east Choiseul.

The applicants claim the BCC erred for that the issue about ownership of land from Heanga river to Lalaguti stream had been dealt with by earlier Council of Chief’s determinations given on the 16 February 1999 and 29 September 1999 and that such determinations involved the same parties as those in dispute here.. As well the ownership of land from Longa River to Nombe stream was determined by Chiefs on the 17 May 2004 when the Chiefs heard claims of the 2nd applicant and the unsuccessful Leokana clan. (The applicants, here, say in that 2004 hearing, the Vataroe/Volekana tribe and their members including the 1st respondents, supported the Leokana clan’s unsuccessful claim to ownership).

The applicants say that the earlier decisions of the chiefs were referred to the Local Court on appeal. As a consequence of the actions of the respondents the BCC re-determined the same land ownership issues earlier determined but then awaiting appeal hearing by the Local Court.

As well, the BCC members do not reside "within the locality of the land in dispute and who are recognised as such (chiefs) by both parties to the dispute" (s. 12 Local Courts Act cap. 19) and consequently should not have proceeded to hear and determine the reference by the 1st respondents.

These grounds were supported by affidavit evidence filed for and on behalf of the respective applicants. Mr. Tegavota, in a well reasoned argument, satisfied me that error on the face of the BCC record of decision was apparent for that the Chiefs, in taking unto themselves the obligation to hear the dispute relied upon a particular paragraph in a Court of Appeal decision affecting these parties where the Appeal Court said that the matters "should without more delay, be resolved within the jurisdiction of the Local Court and if necessary by the Chiefs".

For clearly the Court of Appeal must not be seen to sanction, Mr. Tegavota argued, non-compliance with the Local Courts Act, for the every dispute had already been referred to a Local Court (and it cannot rebound, as it were through convenience – the Local Court justices had not convened through absence of sitting allowances – to another Council of Chiefs hearing). To read para 16 of that Appeal Courts decision in that way relied upon by the BCC would countenance endless argument (and there has been more than sufficient in this case) between litigants shuffling to and fro, from this council to that, (forum shopping) seeking a favourable decision obviously, but one simply unfavourable to the other side. No resolution can be achieved in such circumstances, and while allowing for the good intentions, of the BCC, it has acted ultra vires its powers. Section 12 of the Local Court Act provides-

"12. (1) Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that-

(a) the parties to the dispute had referred the dispute to the chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.

(2) It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred.

(3) In addition to producing a certificate pursuant to sub-section 2, the party referring the dispute to the local court shall lodge with the local court a written statement setting out-

(a) the extent to which the decision made by the chiefs is not acceptable; and

(b) the reasons for not accepting the decision."

Once it is plain (and surely in this case nothing could be plainer) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute and the dispute has been referred to the Local Court (as, I am satisfied, was the case here) further argument before the chiefs is pointless for they are functus officio, their authority has come to an end. For in the circumstances envisaged by s. 12 jurisdictions devolves from the chiefs to the Local Court. There can be no usurpation of the Local Court power to hear the referred dispute in these circumstances presumed by the BCC for the comments of the Court of Appeal cannot be read to override the terms of the legislation, in this fashion, for that would be the effect. Perhaps it is unfortunate that the Appeal Court has created such an impression on the BCC by the wording of para 16 of its ruling, but that impression has no force of law sufficient to override the obvious hierarchy of tribunals (Chiefs, Local Court etc) with their respective powers, written into the Local Court Act.

"[16] This Court realises that financial difficulties were largely responsible for the fact matters have to proceeded in the Local Court but in view f the amount of land in issue in this case it is important that every effort should now be made without more delay to resolve the matters within the jurisdiction of the Local Court and if necessary by the Chiefs.

(Civil Appeal 15 of 200 --- Benjamin & Ors v Simbe & Anors – dated 11 November 2004)

What is plain from a reading of s. 12(1) is that the chiefs must be the initial tribunal for dispute resolution. In this case, the representatives of the Dali tribe are Gandley Simbe and Derald Galo. In an earlier case involving the same land, it would seem, Gandley Simbe and Nathaniel Mela represented the Dali tribe and my brother Kabui J granted an injunction to prevent others from felling timber on Nola land for that such acts would be in contravention of "the Chiefs determination dated 30 September 1999; from Kogo stream to Lalaguti stream" in favour of Dali tribe. (cc 205 of 2004; Gandley Simbe Anor v Harrision Benjamin Anor and Eagon Resources Ltd judgment of Kabui J dated 5 August 2004)

The Court of Appeal (Civil Appeal No. 15 of 2004 by judgment dated 11 November 2004) dismissed the appeal against the judge’s refusal to discharge the injunction stopping those parties (other than the Dali tribe) from entering upon Nola land to fell timber, and said this

"[14] The plaintiffs’ response is that the Chiefs’ first decision was only to recognise rights as owners "for the purposes of cultivation". Although the Nola land may originally have been given to the Volekana tribe as Luabani for a woman, the Chiefs in the second hearing found that the right to Luabani no longer existed in custom "because of the denial of the first defendant o the Dali tribe as the giver". The findings of both Chiefs are proper and those findings as to customs are within the powers of the Chiefs to make under section 12 of the Local Courts Act.

There appeared to be no issue over the manner in which the Chiefs conducted those hearings in September and February 1999, sufficient for the Court of Appeal to see a need to address them in terms of any criticism stemming from the definition of chiefs in s. 11 of the Local Court Act, criticism going to the jurisdiction of the Chiefs to hear the dispute. Yet in the case before me, Mr. Suri has now gone to some trouble to show that those two 1999 decisions are suspect for by the evidence of two particular witnesses called, it was suggested that the Senge Chiefs concocted their record (for Steward Vava denies being present on the 28-29 September 1999) and made a decision on the 16 February 1999 contrary to the weight of evidence (for Laster Pitamama denies his mark on the Chiefs record of that hearing as evidence of his acquiesce in the finding in favour of the Dali tribe).

This is an unfortunate development where bad faith has been raised, in this fashion, some 8 years on by persons who it may be said have appeared to change allegiance (on the part of Steward Kava) and on the part of Last Pitamama (who is principally illiterate) who has resiled from his determination as a member, recorded in February 1999.

I need not make findings on this issue of bad faith, for I propose to refer the proceedings in any event. The appropriate tribunal, now, is the Local Court. It should focus on the real issues surrounding the argument at the time in 1999, over landownership and not be distracted by what has become claim and counter claim about the truth or other wise of things said in all these affidavits filed. There is a definite need to step back from this interpersonal criticism for it is clouding the issue that relates to the ownership of the land in question. That issue does not rely on present attitudes or assertions, but can be solicited from the evidence of genealogy and custom affecting land, evidence already opened upon in the two 1999 hearings. For it is that evidence that needs to be assessed. That assessment cannot take place in this court for this court is not the arbiter of custom. Following an unacceptable determination, the Local Court is seized with jurisdiction to hear the dispute. That has happened in the earlier case of the 1999 determinations for I am told they already are before the Local Court. That is the short answer to Mr. Suri’s argument about his clients claim to now quash those earlier decisions. Once they have been referred, by unacceptable settlement, the Local Court is the lawfully constituted tribunal or forum for the determination of the questions still in issue. This court cannot interfere with that process unless the Local Court seeks our assistance. (Gandley Simbe No. 1)

To read, as I have already said, the Court of Appeals obiter dictum or incidental comments as authority to override the legislative intent of s. 12 is wrong in law.

It also follows that with such a legitimate referral from the earlier Chief’s decisions, (see para. 15 of the Court of Appeal decision in Gandley Simbe No. 2) the Chiefs are from the purposes of any further enquiry into the matter, functus officio for their authority has come to end once the Local Court is appraised of the unacceptable decision. Such is the case here, and for all intents and purposes, in the associated civil case 205 of 2004. It follows, then that the BCC acted without jurisdiction when it purported to again adjudicate on the matter.

There is another way of looking at this issue of jurisdiction. In the cause cc 205/04, Kabui J heard Harrison Benjamin and Peter Madada who claimed to represent the Volekana tribe which owned the disputed land. The Volekana tribes’ case was set out in the affidavits filed by Messrs. Hense Vaekesa and Harrison Benjamin (see page I of the transcript of Ruling of Kabui J dated 5 August 2004).

On the 22 February 2006 Hense Vaekesa filed an affidavit in the proceedings before me, in which he stated he was a member of the Vataroe tribe and authorised to represent it. The 1st respondent Robert Vaekesa, in his affidavit of the 22 February 2006 says it is wrong and embarrassing to be named as representatives of Volekana in this case. Yet in his later affidavit of the 17 May 2006 he claims, at par 2(i) appointment as chief of Vataroe by tribal meeting on the 5 October 2005 and before that, by appointment by the late Steven Taki in 1992. Steven Taki, he says, was the Chief of Vataroe tribe and Paramount Chief of Volekana tribe. So Hense Vaekesa previously spokes person for Volekana and now Vataroe, and Robert Vaekesa, claiming right through the Paramount Chief of Volekana (but now embarrassed by such claim) now claims as Vataroe. It raises a presumption that the interests of Vataroes and Volekana to this particular land are similar (for why else did not Robert Vaekesa seek to interpose his supposed tribal interest as Vataroe in those earlier proceedings before Kabui J, proceedings involving Hense Vaekesa).

On balance then, the Vaekesa and Volekana are estopped by their conduct from further litigating the same point before the BCC, since the former judgment on decision of the earlier Chief’s dealing by decision with the adjacent parcels of land, Ologho and Siruka, is conclusive until varied or set aside by the Local Court. Vaekesa claim to have litigated and won in the BCC hearing, but I find that the parties in dispute before the BCC (until Gandley Simbe’s group left) were the same as those contesting the same issues over land before Kabui J (for why else would the BCC be guided by para 16 of the Court of Appeal comments unless the BCC was convened by a party to that civil cause 205/04, and that party was Volekana).

It is for these reasons, appropriate to quash the decision of the BCC for that it has been shown the tribunal was without power, and in any event, both Vaekesa and Volekana are estopped by law from reconvening a Chief’s hearing over the same point acknowledged by Kabui J. as having properly been referred to the Local Court. With that finding, I agree.

I direct the applicants draft short minutes of order.

THE COURT