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Vavanga v Tala [2024] SBHC 91; HCSI-CC 1 of 2020 (30 August 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 1 of 2020

BETWEEN

BARTHOLOMEW VAVANGA
Appellant

AND:

ROSE TALA
First Respondent

AND:

POLYCARP SEKANI
Second Respondent

Date of Hearing: 31 July and 12 August 2024
Date of Decision: 30 August 2024

Mr Nelson Laurere for the Appellant
Mr Mark A Sina for the First & Second Defendant

RULING

Bird PJ:

1. This matter is an appeal against the decision of the Guadalcanal Customary Land Appeal Court (GCLAC). The decision confirms the prior Guadalcanal Local Court (GLC) decision giving primary ownership of land known as Komutalu to Rose Tala and Polycarp Sekani and secondary ownership to Bartholomew Vavanga.
2. Being aggrieved with the decision, Mr Vavanga has lodged this appeal to this court. Fourteen (14) grounds of appeal are advanced by Mr Vavanga. It is important to note on the outset that the Attorney General was not joined as a party to this appeal. The decision of the GCLAC is the focal issue here. The Attorney General should have been joined as a party to represent them. It is important for me to state this because most of the grounds of appeal touches on practise and procedures of the GCLAC.
3. During the hearing of this appeal, I have enquired from counsel as to why the Attorney General was not named as a party to the appeal. It could have been an oversight, I am not sure.
4. Mr Vavanga has sought orders in lieu of what was decided by the GCLAC. He seeks orders to set aside the decision of the GCLAC and either to also set aside the decision of the GLC and or to remit the matter to a differently constituted GCLAC.

Grounds 1 & 2
Mr Vavanga’s case

5. The first and second grounds of appeal by Mr Vavanga relate to the same issue. I am dealing with them together. The central issue is the GCLAC convened the hearing without a quorum. The law requires the quorum of a CLAC to be five (5). The composition shall include a President, a Vice President and not less than three other members. At least one of the three members must be a Magistrate.
6. During the hearing on 12 June 2019, objections were raised against the President who then was Mr John Seketala and a member, one Mr Henry Lui. As a result, they recused themselves. The hearing nonetheless proceeded. The composition was Mr John Gatu as Vice President, two members being Mr Nelson Sabino and Mr William Rex Pocho and Ms Fatima Taeburi as the Magistrate. There was no President to preside over the hearing.
7. When the matter was called by the GCLAC on 4 November 2019, an additional member, one Martin Tsuki was included to sit with the panel. Mr Tsuki was not part of the panel that presided over the hearing on 12 June 2019. It is therefore Mr Vavanga’s case that the mandatory requirements of the composition of a CLAC were contravened and appeal grounds 1 and 2 must be allowed.

Ms Tala & Mr Sekani’s case

8. In respect of the above appeal grounds, Ms Tala and Mr Sekani contends that the GCLAC was validly constituted as required by law. I was referred to the court’s record of proceeding on 4 November 2019 when the case was called before them. They say that the said document confirmed the GCLAC was validly constituted. These appeal grounds must be dismissed.

Analyses of appeal grounds 1 & 2

9. I have heard and read submissions from the respective parties and have perused the relevant documents relied upon by them. Section 255 of the Land and Titles Act (cap 133) (LTA) is the relevant law in the establishment of a Customary Land Appeal Court. The CLAC must consist of a President, Vice President and three members, one of which must be a Magistrate.
10. When the appeal was called for hearing by the GCLAC on 12 June 2019, the President and a member of the panel were objected to. They both recused themselves from presiding over the case. The GCLAC nonetheless proceeded with hearing without a President. Only the Vice President with two members and Magistrate Ms Taeburi proceeded with the hearing. There was clear contravention of the requirement of section 225 (2) and (5) of the LTA.
11. It was open for the GCLAC to have adjourned the hearing to another date because they do not form a quorum. Without giving any thought to the legal requirement, they proceeded anyway. I have perused a copy of the proceeding of 4 November 2019 at page 73 of the Appeal Book. The Vice President informed parties as follows: ‘We have received all your submissions verbal and written in the last sitting we are unable to deliver ruling continue sitting because we did not form quorum we now have quorum – we will deliberate and deliver ruling on Thursday 17/11/19 9.30am’.
12. The above statement by the Vice President confirmed in writing that they did not form quorum when hearing the appeal on 12 June 2019. The ruling was delivered on 17/11/19 as scheduled. The statement is a damning one by the Vice President. They have proceeded with the hearing without a President because Mr Seketala had recused himself. The document reproduced on page 73 of the Appeal Book also confirmed the composition to be the Vice President, Mr Gatu, three members, being Messrs Pocho, Sabino and Tsuki and Magistrate Ms Taeburi. Mr Tsuki was not part of the panel on 12 June 2019.
13. It is obvious from proceeding of 4 November 2019, that the GCLAC has contravened s.255 (2) of the LTA. They have acted without jurisdiction when they heard Mr Vavanga’s appeal on 12 June 2019 and deliberated on it on 17 November 2019. Appeal grounds 1 and 2 are therefore allowed.

The balance of the appeal grounds

14. For the balance of the appeal grounds 3 to 14, I am of the view that in allowing appeal grounds 1 and 2, I need not deal with those grounds, The whole proceeding of the GCLAC from 12 June 2019 and 4 November 2019 and their decision of 11 November 2019 is a nullity. They have dealt with the case without jurisdiction on those dates. It is upon that basis that I need not discuss and determine the issues raised therein.
15. Having said the above, I hereby make the following orders:
    1. I allow appeal grounds 1, and 2 of the Notice of Appeal filed on 8 January 2020;
    2. I decline to determine and make orders in respect of appeal grounds 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 for the reason that the decision is a nullity;
    3. I hereby order that Mr Vavanga’s appeal to the GCLAC be reheard by a differently constituted GCLAC de novo;
    4. For the reason that appeal grounds 1 and 2 could have been resolved with consent of counsel at an earlier stage, I hereby order cost against the First and Second Respondents.

THE COURT
Justice Maelyn Bird
Puisne Judge