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Uro v Timi [2017] SBHC 54; HCSI-CC 233 of 2017 (29 August 2017)

SILVARIO URO, -V- JOHN TIMI & OTHERS,
WAN LIK BROTHERS DAROL GUA
LIMITED (1^st 2^nd Defendant)
(1^st 2^nd Claimant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No. 233 of 2017

Date of Hearing and Decision: 29 August 2017

P. Tegavota for claimant
L. Kwaiga for 2^nd defendant with S. N’gai’ngeri

Brown J:

During the Chapter 15 Conference, it became apparent that the question related to the jurisdictional power of those Chiefs purporting to make a decision. It was not a question which may strictly be seen as one for judicial review of the decision-makers findings. For it is agreed that some if not all of the chiefs do not reside in Tangarare. They are Sa’ha’lu House of chiefs and no criticism can be made of them in this case for proceeding with the hearing. The other House of Chiefs is Tangarare and the claimant, here, now says that House of chiefs would have been the appropriate House to have heard the dispute. At the time there was no objection made to the fact of the Sa’ha’lu chiefs sitting, nor was there an unaccepted settlement pro-forma prepared by the Chiefs after hearing. There is no specific time provided for in the Local Court Act whereby those aggrieved may seek recourse to the Local Court, although in this case, the decision was made in April this year. The complainant has chosen to pursue this remedy. That choice is apparently open and no objection has been made by the defendants to this course. The objection to the claim is based squarely on a mandatory reading of s. 11 of the Local Court Act.

For Mr. Kwaiga has argued the failure of the claimant to appeal the decision leaves him no choice but to accept that decision, for in terms of S.11, he must be presumed to have accepted the jurisdiction of the Chiefs for he had failed to raise any objection to them sitting at the time.

Mr. Tegavota while allowing the chiefs power to decide, points to the basis of this clients claim before me, that those sitting did not reside in the area where the land is disputed. In other words, the wrong House of chiefs was convened.
The question is whether S.11 can be so read to support Mr. Kwaiga’s arguments that the claimant acknowledged jurisdiction in those chiefs who sat [and consequently may not now complain] or Mr. Tegavota’s argument that the chiefs who sat were not of that area.

The section is comprised of two parts. The 1^st part speaks of traditional leaders and that is a matter of custom beyond the jurisdiction of this Court.
The 2^nd part is the residential requirement and that is a question of fact which this court may entertain.
Since the claimant has accepted the traditional powers of those chiefs sitting, a question of custom within his cognizance, it is not precluded from denying the residential qualification which must necessarily be shown to afford these chiefs there jurisdictional power.

I am satisfied there is sufficient evidence to show that the Tangarare Chiefs through residential qualification would have been the appropriate House. The Claimant, by accepting the decision in that 1^st instance cannot he held to an election in relation to the residential necessity of the chiefs to reside in the locality of the disputed land. For that is a question of fact to be satisfied before the House of Chiefs may be seen to have jurisdiction under the Act and is not capable of waiver by any person. Whilst he may have been seen to have accepted the decision he is not prevented from relying now on this argument.

The Claim succeeds. I make orders in term of paragraphs 1, 2 & 3. The parties shall pay their own costs.

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BROWN J