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Muaki v Samanako [2016] SBHC 210; HCSI-CC 188 of 2015 (24 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

CHRIS MUAKI
1^st Claimant
MOSES VAIKAVA
2^nd Claimant

AND:

DANIEL SAMANAKO, REGINALD MANUOPO AND DANIEL MUNAKI
(Nukukaisi Village, Makira/Ulawa Province)
Defendant

Date of Hearing and judgment: 24 November 2016

Mr. Bitibule for 1^st and 2^nd claimants
Mr. D. Marahare for defendants

Brown J:

This matter raises serious questions of law particularly whether this court should entertain a claim which presumes a right to determine customary ownership of customary land, for the claim is predicated by a presumption the claimants Chris Muaki and Moses Vaikava own Mabirama customary land. For the claim in paragraph 1 seeks immediate procession of the land in question, then damages for Trespass.

The evidence in support does not have any findings or determinations of a Local Court or Customary land Appeal Court supporting the assertion of ownership, findings or determinations upon which this court may assist the claimant by way of injunctive order perhaps.

Of course where custom is concerned, great care should be exercised in applying Western adopted concepts of “trespass” and “damages” when dealing with tribal members living and reliant on the land under dispute.
Since the claim is one principally seeking a declaration of the ownership status of the claimants and has no evidence in support, this court should not accede to the claimants’ supposition of ownership without proof.

For this court has no jurisdiction to entertain proceedings seeking determination of ownership of customary land and such would be the effect of any order for possession. For by such an order, this court would, by constitutive legal act, presume to accept the claimant’s assertion of ownership as proof.
The availability of a judgment as to ownership as a preliminary to finding a right to possession is not with this Court or Registrar. [S.239 Land and Titles Act] Clearly the issue of possession by these tribal members goes to the question of current customary usage and may not be considered by the High Court in the terms of the claim.

It is not an argument, as Mr. Bitibule says about one of time, [for the defence is by leave if to be filed out of time allowed by the Rules], or one illustrating the lack of responsibility of the lawyers for the defendants [as argued by the fact of their absence of an email avenue], rather it goes to the jurisdiction of this court too entertain the claim in the first place.

For the reasons given the court has no jurisdiction, the judgment is accordingly unavailable to this court and of no effect. The proceedings are struck out by order of the court in terms of R. 9.75(a).

I make no order as to costs.

__________________
BROWN J