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Niuga v Ologa [2021] SBLC 1; Land Case 5 of 2011 (24 March 2021)

IN MALAITA LOCAL COURT

AUKI MALAITA PROVINCE

SOLOMON ISLAND.

LAND CASE NO: 5 of 2011

IN THE MATTER OF: ANATE CUSTOMARY LAND LAND

BETWEEN: FRANCIS NIUGA & WANETA RIFA'ASIA PLAINTIFF

AND: DAVID OLOGA, TIMOTHY KWAIMANI & JOHN RAMOGA DEFENDANT

Preliminary Hearing

Date: 24th March 2021.

Time: 9: 42 AM.

Introduction

On 11th – 14th September 2007, a chief's settlement was conducted by the West Baelelea Council of Chiefs at Mandulua Community Centre. The chief's settlement was conducted one-sided, in the absence of the defendant.

The plaintiff informed the court that there is a notice given to both parties to attend the Chief's settlement.

Prior to the notice, the defendant wrote a letter to the chiefs claiming that he has the primary owner of the said land in dispute and he has the degree of the land in the previous court cases. He refers to a circular by the High Court of the Solomon Island regarding the Local Court Amendment Act 1985. As provided:

"The chiefs must not hear a dispute if a decision has already been made by the Local Court, Customary Land Appeal Court or High Court".

The defendant relies on a part that says, the chiefs had no power to hear a dispute if a decision has already been made by the upper courts about the land in dispute.

Upon the absence of the defendant, the chiefs gave its determination that the plaintiff's party is the rightful owner of the said land in dispute.

After the determination of the chiefs, the plaintiff which is the favored party in the chief's settlement then referred the said land in dispute to the Local court and register the case as Case NO: 20/2007.

Issue.

Whether the process of filing has satisfied the requirement provided in section 12 1, (a), (b), (c), 2 of the Local Court amended act (CAP) 1985.

Whether the Plaintiff has already been involved in the previous court cases over the said land in dispute.

Rule Apply

Local Court Amendment Act (CAP) 1985 Section 12 1, (a), (b), (c), 2.

Application

1. Whether the process of filing has satisfied the requirement provided in section 12 of the Local Court Amendment Act 1985. Through the preliminary hearing, the court carefully analyzed all the documents provided and even questioning the parties regarding the chief's settlement. The court found out that the chief's settlement held by the West Baelelea Council of Chiefs is a one-sided hearing. In Accordance to the Local Court amendment act 1985 section 12, the requirement arranges for both parties to appear in chiefs settlement, and if the chiefs give their determination about the land in dispute, the aggrieved party that partaker to the chiefs' settlement will refer the matter in dispute to the Local Court, and not the favored party to refer the dispute to the Local Court.

Schedule 3 (1) of the Constitution provides the power for the chiefs to determine the customary truth or law, as it stated:

"The chiefs are the repository of customary truth or law, any decision made by them in the absence of a referral to the Local Court must be accorded the same status as law in our jurisdiction. In this instance, therefore, where the decision had gone in favor of the plaintiff and a fortiori where no referral had been made under the Local Court act by the defendant that must be accepted as the law until it is overturned by a Local Court".

Whether the plaintiff has already been involved in the previous court cases about the land in dispute. Through the preliminary hearing, the plaintiff told the court that the previous court cases that the defendant relied on its degree, is a dispute between the defendant and a different party, he mentioned that he was a new party and not been involved in any dispute with the defendant regarding the said land in dispute.

Court wants to confirm with the defendant, whether the plaintiff is a new party. The defendant affirmed to the court that "yes" the plaintiff is a new party, they never been through any chiefs settlement or court cases.

According to the circular of the Registrar of the High court R J Coventry explaining the local court amendment act 1985, Stated clearly that, "if the parties are different or the land is different, then the chiefs can hear it"

The Local Court found that the plaintiff is a new party, he has never been through any court cases with the defendant. Both parties confirmed to the court, that the plaintiff is a new party.

Conclusion

After analyzing all the issues raised in the preliminary inquiry, the Malaita Local Court agreed that the proper avenue to solve such a dispute is for the parties to attend a chief's settlement that they agreed upon.

If they agreed with the chiefs' determination that they have attended, they may comply with the requirement provided in section 14 of the local court amendment act. But if any of the party which takes part in the chiefs' settlement disagreed with the determination of the chiefs then he may comply with section 12 of the Local Court Amendment Act.

In accordance with the findings, the Malaita Local court gives its order.

Order.

1. That case is now withdrawn from the Local Court administratively.
   
2. No order of cost.
   

Signer:

Nelson Ne'e: ___________________________ Vise President

Eddie Wasi: _____________________________ Member

Timme Aranga: ___________________________ Member

Wesley Ramo: ______________________________ Clerk