Bavare v Nerapa [2011] SBCA 22; CA-CAC 21 of 2011 (25 November 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION	Appeal from Judgment of the High Court of Solomon Islands (Justice Chetwynd)
COURT FILE NUMBER:	Civil Appeal Case No. 21 of 2011 - (On Appeal from High Court Civil Case No. 17 of 2011).
DATE OF HEARING:	16 November 2011
DATE OF JUDGMENT:	25 November 2011
THE COURT:	Sir Robin Auld, President
	Sir John Hansen, JA.
	Justice Gordon Ward, JA.
PARTIES:	BAVARE-(Rep – Siamabarava & Marava Clan) - Appellant
	-V-
	NERAPA -(Rep – Pare Clan of Kibi Tribe) - Respondent
ADVOCATES:
Appellant:	M Pitakaka for Appellant
Respondent:	M Bird for First Respondent
	D Tigulu for Second Respondent
KEY WORDS:	Judicial review; strike out; alternative remedy; customary land.
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	DISMISSED
PAGES:	8

JUDGMENT OF THE COURT

[1] This is an appeal from the decision of Chetwynd J, dated 20 July 2011, when he struck out the Appellant’s application for judicial review.

Background

[2] The appellants represent the Siamabarava and Marava clans of Kibi Tribe of South Choiseul. The first defendant is the Babatana Council of Chiefs dealing with customary land disputes in South Choiseul. The second respondents represent the Para clan of the Kibi tribe.

[3) The clans represented by the appellants and the second respondent were in dispute over land within the area of Kibi customary land. The first defendant made a ruling dated the 28 July 2010. On 28 January 2011, the appellants issued judicial review proceedings seeking the quashing of the order of the first respondent, alleging bias, res judicata, breach of natural justice and breach of due process. Allegations to support these grounds are set out in the Statement of Claim. We do not rehearse them as they are irrelevant in the context of this appeal.

The High Court Decision

[4] Chetwynd J convened a conference pursuant to High Court Rules 15.3.16. He accepted the Council of Chiefs were amenable to review. However, he concluded the claimants had an alternative remedy pursuant to ss. 12 and 13 of the Local Court Act. Accordingly, he found that the claimants failed to satisfy Rule 15.3.18(d) and struck out the claim pursuant to Rule 15.3.20.

Submission

[5] For the appellants, Mr Pitakaka argued that in its supervisory role, the High Court had exclusive jurisdiction to review the procedures and processes of the Council of Chiefs. In response to assertions from the Court, he submitted that s. 84(1) of the Constitution rendered s.256(3) Lands and Title Act void. He submitted the Local Court had no power to consider the matters complained of and therefore no alternative remedy was available.

[6] For the Respondent, Ms Bird and Mr Tigulu submitted that as the Council of Chiefs dealt only with Customary Law they could not, and should not be amenable to review. They submitted that it was not for the High Court to consider customary matters.

[7] They further submitted that the legislature had put in place a comprehensive hierarchy as to the way in which customary land disputes were to be dealt with. The procedure, by way of an unaccepted settlement form, was a referral to the local court who heard the matter de novo. Accordingly, they submitted that the High Court was correct to find R.15.3.18 (d) had not been satisfied.

Discussion

[8] For present purposes we are prepared to accept that a Council of Chiefs is amenable to judicial review. However, as we have decided this appeal on other grounds we make no final decision. This is not the appropriate case to finally determine such an important issue.

[9] The Judge correctly convened a conference and turned to R:15.3.18 which reads:

The Court will not hear the claim unless it is satisfied that:

(a) the claimant has an arguable case; and

(b) the claimant is directly affected by the subject matter of the claim, and

(c) there has been no undue delay in making the claim; and

(d) there is no other remedy that resolves the matter fully and directly.

The essential question is whether the Appellants had another remedy available to them. We agree with the Judge they did. The relevant statutory provisions are as follows:

Local Courts Act Cap 19 – Section 12

(1) Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that:-

(a) the parties to the dispute had referred the dispute to the Chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.

(2) It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred.

(3) In addition to producing a certificate pursuant to sub-section (2), the party referring the dispute to the local court shall lodge with the local court a written statement setting out –

(a) the extent to which the decision made by the chiefs is not acceptable; and

(b) the reasons for not accepting the decision.

Section 13

When hearing and determining any dispute it has jurisdiction to hear and determine, the local court may –

(a) have regard to the decision made by the chiefs in connection with the dispute;

(b) hear evidence from –

(i) any or all of the witnesses who gave evidence before the chiefs at the hearing of the dispute; or

(ii) any other witness called by the parties;

(c) call one or more of the chiefs who took part in making the decision to give evidence on the customary law which –

(i) is applicable within the locality of the land in dispute; and

(ii) governs the issues in the dispute;

(d) substitute for the decision made by the chiefs such decision as may to it seem just; or

(e) refer the dispute to the chiefs with such directions as it may consider necessary.

Lands and Title Act (Cap 133) - Section: 254 \

(1) A local court shall, subject to the provisions of this section, sections 12, 13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than -

(a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land.

(2) A local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act.

(3) The decision of a local court given in exercise of its jurisdiction under this section shall be final and conclusive, and shall not be questioned in any proceedings whatsoever save an appeal under section 256.

(4) The provision of this section shall have effect notwithstanding anything contained in any other law, other than sections 12, 13 and 14 of the Local Courts Act, or in any warrant establishing any local court.

(5) Nothing in the foregoing provisions of this section shall operate to confer or be construed as conferring, upon a local court any jurisdiction over any person who by reason of his status would not, apart from those provisions, be subject to the jurisdiction of a local court, except with the consent of such person.

Section 256

(1) Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 254 or section 13(d) or (e) of the Local Courts Act may, within three months from the date of such order or decision, appeal therefrom to the Customary Land Appeal Court having jurisdiction.

(2) On any appeal to it under subsection (1) a Customary Land Appeal Court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just.

(3) Any person aggrieved by any order or decision of a Customary Land Appeal Court may within three months from the date of such order or decision, appeal there-from to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.

(4) Any order or decision of the High Court, and, subject to subsection (3), of a Customary Land Appeal Court, in each case given in exercise of the jurisdiction conferred by this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever.

[10] By considering these provisions, it can be seen that the legislature has carefully put in place an exclusive hierarchy to deal with customary land disputes. S.254 Lands & Titles Act makes it clear that a local court shall have exclusive jurisdiction in all civil matters dealing with customary land. It is subject only to ss.12,13 and 14 of the Local Courts Act. S.14 is irrelevant for present purposes. S.12 effectively acts as a filter so that only decision of the Council of Chiefs that are not accepted by the parties reach the local court. S.13 sets out the powers of the local court, both as to evidence and the resolution of the matter. Under s.13, the local court clearly has the ability to hear the matter de novo if required.

[11] S. 256 gives a right of appeal from the local court to a customary land appeal court. A magistrate, usually a Principal Magistrate sits as the clerk to such court, clearly to advise on the law and procedural matters. Matters of custom are left to the court. There is then a further right of appeal to the High Court on a point of law or any other ground of failure to comply with any procedural requirement of any written law.

[12] This latter provision is not void because of s.84 (1) of The Constitution as contended by Mr. Pitakaka. S.84(1) does not give the High Court exclusive jurisdiction to supervise subordinate proceedings.

[13] The legislative regime allows the appellants a hearing de novo in front of a local court. There is a further appeal to the Customary Land Appeal Court, which has the benefit of legal advice from a magistrate sitting as a clerk. Finally, there is a right of appeal to the High Court on a point of law or procedure.

[14] Given this hierarchy of rights we are satisfied there was ample opportunity for the appellants’ complaints to be considered. It follows Chetwynd J was correct to conclude that the appellants had failed to satisfy the requirement of R: 15.3.18(d) and to strike out the claim.

[15] The appeal is dismissed.

[16] Unless counsel wish to address us on costs, we consider they shall follow the event.

Sir Robin Auld
President

Sir John Hansen , JA
Member

Gordon Ward, JA