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One'one v Daudau [2018] SBHC 68; HCSI-CC 414 of 2016 (30 May 2018)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No. 414 of 2016

SAM ONE’ONE, FR. JOHN TOME WILLLIAM SUMU, BARTHOLOMEW DOLONATI, HENRY TABUSU AND DANIEL LIOENENO
Claimant

MICHEAL DAUDAU, JACOB OKAI, STEPHEN SIALE AND JOHN MORIKANA
First defendants

ATTORNEY GENERAL
(Representing the clerk of the Malaita Local Court)
Second defendant

Date of Hearing: 13 April 2018
Date of Decision: 30^th May 2018

Ms. L.D Ramo for the Claimant
Mr. M. Pitakaka for the first Defendants
Mr. E. Ki’i for Second Defendant (Absent but tender written submissions)

RULING ON CHAPTER 15 CONFERENCE

1. Between claimants and first defendants, there currently exists a customary land dispute over a piece of land in Suava bay, Malaita Province. Dispute is over ownership and boundary of Harifafa land also referred to as Bubuni Harifafa land, as the materials exposed.
2. In year 2008, a joint chief’s panel of Marodo and Ulufera council of chiefs (“joint chiefs’ panel”) convened to hear the dispute. First defendants attended. Claimants did not attend.
3. Aggrieved; claimants referred the dispute to Malaita local court (“MLC”) in Land Civil Case No 12/2012. Fees paid. It seems only fees were paid. On 1/11/2012; MLC sat at Malu’u and dealt with preliminary issues only. Not a full hearing of the claimants’ party’s referral. Malaita local court did not convene a full hearing, because it insisted that a Form 3 must be filed before, it can convene a full hearing on claimants’ referral. It also wanted to see the High Court Ruling by Justice Chetwynd. It is not known why a Form 3 was necessary. Form I is the necessary Form to complete as a mandatory requirement for referral of a customary land dispute under Section 12 of the Local Court Act (Cap 19) – where there is an “unaccepted settlement”; as was the case here.
4. After the preliminary hearing and adjournment of the main case in Land Civil Case No 12/2012, claimants took the dispute to Faudedema house of chiefs. On the 3/12/2013, claimants’ party obtained a favourable decision one sided. First defendants did not attend. Faudedema decision was recorded very briefly on Form 3, rather than on a detailed descriptive and narrative record of the proceeding and determination by the chiefs. To avoid confusions, chiefs’ detailed written decisions should not be recorded on any Forms in the Schedule to the Local Court Act (Cap 19). Chiefs’ decisions should be typed or hand written just like what the formal courts do. They should not be confined to “particulars” required in Forms used in the Schedule to the said Act. Talking about Forms, there are Forms I and II only in the Schedule to the Act. I do not know where Form 3 is coming from. That is an issue for the MLC to resolve, seeking advice from the Attorney General.
5. Faudedema chief’s decision recorded on a Form 3, was subsequently filed in MLC. Malaita local court then resumed full hearing of Land Civil Case No 12/2012, being satisfied the preliminary issues it insisted on were met.
6. When MLC resumed full hearing in Land Civil Case No 12/2012, first defendants’ party made a referral to MLC being aggrieved by the Faudedema’s one sided decision. MLC described first defendants’ party’s referral as “cross-appeal”. Strictly speaking, a chief’s decision is not appealed to local court. Local Court Act talked about “referring^[1] ”a customary land dispute to local court; not “appealing” a chief’s decision to local court. For the chiefs forum are not a court of record^[2] Local court is the court of first instance^[3] for customary land disputes.
7. It is to be noted that at this stage, 2 house of chiefs’ decisions were brought before the MLC, relating to Harifafa land dispute referral; being made by claimants’ party and first defendants’ party. Claimants’ party’s referral was in relation to the joint chiefs’ decision of 2008. First defendants’ party’s referral was in relation to Faudedema chief’s decision of 2013. This is why MLC issued receipts and referred to first defendants’ party’s referral as “cross appeal”. At this stage, claimants party should not be required to pay another fee (receipt), because the same Land Civil Case No 12/2012, was been re-instated for full hearing, after an adjournment on preliminary issues.
8. Malaita local court finally heard these two Harifafa land dispute referrals and gave a decision on 20/04/2016, in favour of first defendants; as the primary rights owner of Harifafa land. Claimants’ party lodged an appeal to Malaita Customary Lands Appeal Court (“MCLAC”). Simultaneously, claimants filed this judicial review claim to quash the decision of MLC, alleging procedural irregularity with the first defendants’ party’s referral of the dispute to MLC.

This Judicial Review Claim

9. Being a Judicial review claim, the matter came for chapter 15 conference on 13/4/2018. At this conference, claimants have to satisfy the court on 4 matters before the court can proceed to hear their claim. The 4 matters in the order they appear in Rule 15.3.18 (a) - (d) are: claimants have an arguable case; claimants are directly affected by the subject matter of the claim; there is no undue delay and that there is no other remedy that will resolve the dispute fully and directly.

First 3 matters satisfied through concession

10. On perusal of Attorney General’s written submission, I directed that counsels make oral submissions on the last matter only (other remedies). This is because the Attorney General has conceded that the claim has satisfied the first 3 matters in Rule 15.3.18 (a)-(c). Accordingly on the concessions, claimants have satisfied the court on the first 3 matters under Rule 15.3.18 (a) – (c). Having perused the materials court concur that the claim has satisfied the first 3 matters. Case law however says court must be satisfied with all 4 matters. This is why I now consider the last matter on other remedy (Rule 15.3.18 (d)).

Last matter on “Other Remedy” contested

11. To understand the contention and to determine whether another remedy is available to resolve this dispute fully and directly, I will examine the nature of the claimants’ judicial review claim.
12. The main relief sought is to quash the decision of MLC dated 20/04/2016; on the ground that first defendants’ referral of the dispute to MLC did not comply with the provisions of or requirements of Section 12 (1) (a) (b) and (c) of the Local Court Act (Cap 19). Claimants are in effect saying that MLC should not have seized jurisdiction to hear the referral because parties have not referred the dispute to the chiefs, that all traditional means of resolving the dispute in custom have not been exhausted and that no decision acceptable to parties had been reached by the chiefs.
13. Based on the evidence before me, I can quickly dispose this contention off. We do not have to drag parties into lengthy and costly litigation in the High Court, when the underlying “customary land dispute”, falls outside of this Court’s jurisdiction. I repeat paragraph (7) that before the MLC were two referrals. Claimants’ party’s referral was in relation to the joint chiefs’ decision of 2008. Defendants’ party’s referral was in relation to Faudedema chief’s decision of 2013.
14. First defendants’ party had in fact made a proper referral under Section 12 (1) (a), (b) and (c) of the Local Court Act (Cap 19). The dispute had been before the chiefs (Faudedema). All traditional means have been exhausted without an accepted decision of the chief (both the Faudedema and joint chiefs decision) both one sided heard. So I found that the defendants’ party had duly complied with the proper procedure in referring the dispute to MLC. And that MLC had properly seized jurisdiction over this dispute under the mandatory requirements of Section 12 (1) (a), (b) and (c) of the Local Court Act (Cap 19). I found on the evidence before me, that two different House of chiefs’ decisions were referred to MLC in connection with this dispute. I can make this finding now rather than at trial to make it easier for parties. To have lengthy litigation means too much time and too much cost for parties. I do not think the evidence available now will change in a material way at trial.
15. In saying the first defendants’ party made a proper referral; I found that their referral met the mandatory requirements for a valid referral under Section 12 of the Local Court Act (Cap 19). That is to say they have completed the required particulars in Form I^[4] to the Schedule of the Act; in relation to Faudedema chief’s decision (Unaccepted Settlement). They have lodged a written statement setting out the extent to which they did not accept the said Faudedema chief’s decision; plus the reasons for not accepting it^[5]. And of course they paid the fees. Those are requirements for a valid referral under Section 12 of the Local Court Act (Cap 19). There are evidences of first defendants meeting those requirements before me now. And those evidences will not change at trial; if we have to go to trial. Counsel Ramo was saying in oral submission that, she had no prior knowledge about those relevant evidences, which Counsel Pitakaka presented in court. That her clients were not given those evidences prior to this hearing.
16. Then it was time for the MLC to resolve the dispute. In its decision dated 20/04/2016; there is one concern that this Court has. That concern is to do with whether MLC had properly dispensed with its statutory duty under the Local Court Act.
17. I have had time to read the MLC decision. One major defect I found about the MLC decision is; it did not define the boundary of the disputed land in its 5 main conclusions at page 7, of the decision. At conclusion No 4, the MLC says on boundary “the boundary as (from Aimela (West) direct to Tara’ana is not accepted by the court”. Court should then go a step further and conclude on or define the boundary that it accepted from the survey it conducted. A decision on customary land dispute is incomplete, if the land court fails to define the boundary^[6].
18. Another defect is the MLC did not give reasons or explanations for its 5 major findings/conclusions. What the MLC merely did was record the proceedings briefly, record a brief summary of both sides’ evidences and then went straight to make the 5 major conclusions.
19. I am unable to tell how MLC had dissected the materials before it to support the 5 conclusions it reached. Giving reasons for decisions is an essential part of the justification of an exercise of judicial power^[7]. Our land courts in the midst of difficulties, must try to be wary of this. I note lack of training for justices who come straight from the villages, to sit on land courts, as one real difficulty. It is my respectful view that MLC failed to discharge its statutory charter under the Local Court Act (Cap 19)-Section 13 (a) – (e). When that becomes a problem, this Court has power to intervene to ensure the integrity of the statutory charter is upheld.
20. Coming back to other remedy, I found that the underlying dispute here is land dispute between parties in relation to Harifafa land. Having already resolved on the issue of law involved in this claim, what is left now is pure customary land dispute. I will therefore refer that pure customary land dispute to be resolved in the land courts.
21. In doing that, I dismiss this claim. At the same time, I set aside the decision of MLC dated 20/04/2016. I remit the dispute back to the MLC to be reheard and newly constituted. A dispute was properly referred to MLC. Two chiefs decision is before MLC. It should now seize jurisdiction and resolve the dispute. In its powers MLC can refer the dispute to a chiefs panel with appropriate directions^[8]. Additionally and in the alternative, MLC can hear the dispute de novo, if required^[9].
22. The orders of this Court:
    • 22.1 Dismiss this judicial review claim.
    • 22.2 Set aside the MLC decision dated 20/04/2016.
    • 22.3 MLC to make a fresh hearing of the dispute; newly constituted.
    • 22.4 Parties meet their own cost.

THE COURT
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JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Section 12 (3) of the Local Court Act (Cap 19).
^[2] Ugra –v- Isabel Local Court (2012) SBHC 56; HCSI-CC 405 of 2011 (16th July 2012).
^[3] Section 254 (1) of the Lands and Titles Act (Cap 133).
^[4] Section 12 (2) of the Local Court Act (Cap 19).
^[5] Section 12 (3) (a) – (b) of the Local Court Act (Cap 19).
^[6] Holo –v- Mapo Development Company (2013) SBHC 65; HCSI-CC 92 of 2011 (11th June 2013).
^[7] Publication called “Judicial Decision: Crafting Clear Reasons” by the National Judicial College of Australia (2008) at Page 1 (www.njca.com.au).
^[8]Section 13 (e) of the Local Court Act (Cap 19).
^[9] Bavare –v- Nerapa (2011) SBCA 22; CA-CAC 21 of 2011 (25th November 2011).