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Peter v Feni [2020] SBLC 2; Land Case 10 of 2019 (16 July 2020)

IN THE MALAITA LOCAL COURT

EASTERN DISTRICT

SOLOMON ISLAND.

Land case NO: 10/2019

IN THE MATTER OF: OTELAGWA & FOUAGAMA/ GULE’I LAND BOUNDARY

BETWEEN: SAMSON PETER, DICK LAEFILAMO PLAINTIFF

AND: KENNEDY FENI, KEN GALAÁ DEFENDANT

Date of hearing: 13^th July 2020

Ruling on Preliminary Issues.

Introduction

This case has been heard by the Yuru Tataelanasina Council of Chief on the date 29/5/2019. The issue is that, Otelagwa Tribes which the defendants are represented has claim the common boundary of Otelagwa and Fouagama/ Guleí, which they said that the registered land had covered.

According to the Yuru Tataelanasina Council of Chief Determination, stated that the boundary of the Land Parcel number: 172-003-1, 173-001-001 are extended, which respectively the Waneagu School and the Atoifi Hospital are located.

Issue

Wants of Jurisdiction, which means whether or not the Local Court has the Jurisdiction to determine the case which the Registered Land is intrude.

Rules and law applied.

Land & Title Act (Cap. 133) and the Local Court Act Amendment (Cap. 19) 1985. Which give the power and the Jurisdiction for the Local Court to hear and determine cases.

Plaintiff’s case.

In plaintiff’s case on their submission, they solely asked the court to dismiss the aforementioned case, with the reason that the Local Court have no jurisdiction to determine a case which the claim of boundary has encroach into the registered land. And the other reason, why he filed this case with the Local court, is for the Local Court to determine whether the Tataelanasina Council of Chief has the right to preside over a land which encroach a registered parcel.

Defendant’s case.

The defendant told the court that he just received a letter from the Local court which confirmed the referral of this case to the local court by the plaintiff on the date 12^th of July 2019, regarding the determination of the Yuru Tataelanasina Council of Chief. He affirmatively told the court that they attended a settlement which the Yuru tataelanasina Council of Chief conducted. Hence the issues is about their boundary which they claim that the registered land are covered, and the beneficiaries that their grandmother used to obtained, because she is one of the joint-owner of that registered land.

Facts.

Whether the chiefs’ determination which occurred on 29th May 2019 is correct and accurate according to the provision provided. The Local Court Act Amendment (Cap 19) 1985 section 11 and 12 (1) specified that only the customary land is where the chief have the jurisdiction to determine. Do the chief have the jurisdiction to preside over such a case which involved encroachment in registered Land? No. In a situation where boundaries in dispute intrudes registered portion or land or any ownership of the registered land, chief are not oblige to hear or permitted to determined such issues, thus it would affect the ownership of the registered land.

Courts Analysis.

Within the preliminary hearing, the court carefully examined the issues which the defendant had claimed, there are two things, 1. The claim of the boundary which encroach the registered land and 2. The claim of the beneficiaries which their late grandmother had been obtaining, because she had been one of the joint-trustees to that registered land. The question is whether the local court has a jurisdiction to determine such issues.

According to the provision provided, s 254 (1) (a) (b) of the Land & Title Act (Cap133) stated the jurisdiction of the Local Court. The Local only has the jurisdiction to hear and determine only the Customary Land, the definition of the customary land under section 2(i) of the Act, it stated:

“Customary Land” means any Land (not being registered land, other than land registered as customary land, or land in respect of which any person becomes or is entitled to registered as the owner of an estate pursuant to the provisions of part III) lawfully owned, used or occupied by a person or community in accordance with current customary usage, and shall include any land deemed to be customary land by paragraph 23 of the second schedule to the repealed Act.

In support, the authority of Judge Frank Kabui J, in the case of (Karahu v Paeva [1999] SBHC 7; HC –CC179 of 1998) it deliberate clearly about the jurisdiction of the Local court.

As quoted:

It is therefore obvious that neither any Local Court nor any Customary land Appeal Court should again meddle with the question of ownership of any land already successfully acquired under Part V of the Act. The only exception is where the matter to be decided by the Local Court is whether any land is or is not customary land (s254(1)(b)).

Obviously, while enquiring in the preliminary hearing, both the Plaintiff and the defendant affirming that, this land boundary which claimed by the defendant is encroach within the registered land. Which this court has no jurisdiction to determine. With this, the local court gives its decision accordingly.

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Decision.

1. The Local Court has no jurisdiction to preside over this case.
2. The determination of the Yuru Tataelanasina council of Chief on 29^th May 2019 is set-aside.
3. The case is dismissed.
4. The parties shall bare their own cost.

Right to appeal within three months.

Date Signed: 16 – 07 – 2020.

President: Nelson Ne’e

Member: Camilius Torikeni.

Member: Edmond Maumeu.

Clerk: Wesley Ramo