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Tigulu v Buka [2018] SBHC 91; HCSI-CC 232 of 2017 (29 October 2018)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 232 of 2017

MARGARET TIGULU, KENNETH MAMU AND HAMLET WARREN
Claimants

v

MASEOLO BUKA, SILAS VOENASI AND JOSIAH DAVID
First Defendants

ATTORNEY GENERAL
Second Defendant

Date of Hearing: 29 August 2018
Date of Ruling: 29 October 2018

Mr. M Tagini for the Claimant
Mr. N Laurere for the 1^st Defendant
No appearance for the Second Defendant

RULING ON CHATER 15 CONFERENCE

1. Being a judicial review claim, court conducted chapter 15 conference pursuant to Rule 15.3.16. At the conference court must be satisfied with 4 matters in Rule 15.3.18 (a) (d), before the claim can proceed to trial. The 4 matters are: claimant has an arguable case; claimant is directly affected by the subject matter of the claim; that there is no undue delay and that there is no other remedy that resolves this dispute fully and directly. Court must be satisfied with all 4 matters.

Arguable Case

2. Issues for trial are disclosed from pleadings and sworn statements. And so naturally these issues will become the arguable case, because with arguable case, the court is looking to see whether some points for argument are disclosed for the court to entertain in a substantive hearing at trial^[1]. The arguable case here is allegations of fraud in relation to the chief’s decision of 2012. Additionally claimants raised the issue that the 2012 chief’s hearing was not on land ownership but on Ngali nut tree (“tree”) ownership, only. Court is satisfied claimants have an arguable case.

Claimants directly affected

3. There is no doubt that claimants are directly affected by the subject matter of this dispute being a party in the 2012 chief’s decision^[2]. Court is also satisfied with this matter.

Undue delay

4. Claimants were given leave to file this judicial review claim out of time. Accordingly, it follows that the court is satisfied with undue delay, even though this claim is filed well out of time.

Another remedy

5. I have a chief’s decision before me in evidence. It is that chief’s decision that claimants seek to quash, because they say, whilst the dispute was over a tree cut by the claimants; the written judgment of the chiefs say it was a land dispute over Pekopezo block area as well. Claimants also alleged fraud against the chief’s decision. For chiefs Sekeni and Mana swore^[3] a statement denouncing knowledge of any written judgment by Kubokota Council of chiefs in 2012. Both chiefs say they sat on the panel that presided over a “tree dispute” between claimants and 1^st defendants, not “land ownership dispute”, over Pekopezo^[4] block area. And that no written judgment was handed down by them (the panel).
6. This court also has evidence that claimants have made a referral to the Local Court. And that referral is pending hearing. Referral is evidenced by letter from Kapi Lapo^[5], Local Court Clerk, Western dated 11/10/2016 to Margaret Tiqulu.
7. This court is of the view that all traditional means of setting this dispute (whether tree or land ownership dispute) have been exhausted. Yet no acceptable resolution has been reached. Therefore this dispute should now be referred to the Local Court – under Section 12 of the Local Court Act (Cap 19). Rightly so; claimants have already made that referral; as alluded to above.
8. Should the Local Court sit to hear the referral, it will exercise powers under Section 13 (a) (e), of the said Act, whereby it will look at the chief’s decision; it will hear evidence from witnesses and it will call the chiefs who took part in making the decision. By doing all these; the Local Court will go to address the issues^[6] raised in this claim. Not forgetting that Local Court can also hear the dispute de novo^[7]. And further appeals lie to customary lands appeal court.
9. Counsel Tagini submitted that quashing orders are sought on the grounds of fraud. And only the High Court can properly deal with a serious fraud issue; because it will require a higher standard of proof. I agree. But that will not resolve the underlying issues of land ownership or tree ownership that is alleged against the 2012 chief’s decision. Whether about tree ownership or land ownership; the Local Court has power to resolve matters to do with custom. Even on fraud allegations, Local Court can properly enquire into that issue by calling the chiefs involved. Local court being a court of law and court of first instance for customary land disputes, has full powers to eliminate fraud by calling the chiefs involved and it can hear the dispute on land ownership or tree ownership or both de novo. It is apparent that claimants will say tree ownership only. Whereas the 1^st defendant will say that it is on land ownership; as well. Whichever way, Local Court can still resolve this dispute fully and directly.
10. Accordingly, I found that another remedy is available that will resolve this dispute fully and directly. I also found that a referral of this dispute is before the Local Court, Western. Matters of customary land dispute have an exclusive adjudicatory process established by law^[8]: Chiefs Local Court - Customary Lands Appeal Court High Court and Court of Appeal on error of law only. This dispute must therefore be removed from this court, and be dealt with in the appropriate forum.

Orders of the Court:

11.1 Dismiss the claim with costs on standard basis.

THE COURT
-------------------------
JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Lonsdale –v- Attorney General (2013) SBHC 39; HCSI-CC 356 of 2012 (17^th April 2013).
^[2] 2012 Kubokota council of chief’s decision was between claimants and 1^st defendant herein.
^[3] See joint statement filed 9/06/2017.
^[4] Also referred to in 2012 chief’s decision as Patubolibolivi area block named Pekopezo.
^[5] Additional Statement of Maseolo Buka filed 25/01/2018.
^[6] Issues are: Whether dispute over tree only OR whether dispute over land ownership or whether there was fraud involved.
^[7] Bavare –v- Nerapa (2011) SBCA 22; CA-CAC 2011 (25^th November 2011).
^[8] Land and Titles Act (Cap 133) – Section 254 and Local Court Act (Cap 19) – Section 12.