Daudau v One'One [2019] SBCA 20; SICOA-CAC 21 of 2018 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Daudau v One‘one
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	21 of 2018
Parties:	Michael Daudau, Jacob Okai, Stephen Siale and John Morikana v Sam One’one, Fr. John Tome, William Sumu, Bartholomew Dolonati, Henry Tabusu and Daniel Lioneno, Attorney General
Hearing date(s):	10 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. M Pitakaka for the Appellant Mrs. L Ramo for the First Respondent Mr. S Banuve for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s256
Cases cited:	Simbe v East Choiseul Council [1999] SBCA9
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The appeal is Allowed
Pages:	1-8

JUDGMENT OF THE COURT

Introduction

1. This is an appeal filed 29^th June 2018 by the Appellants (First Defendants) against part of the judgment of the High Court delivered on May 30^th, 2018.

Background facts

2. The history and background of the proceedings is contained in the judgment under appeal at Paragraphs 1-8. The summary of it is as follows:-
3. A customary land dispute arose over a piece of land in Suava Bay, Malaita Province between the Appellants and the Respondents on the ownership and boundary of Harifafa land also referred to as Bubuni Harifafa land.
4. In 2008, a joint Council of Chiefs of Marodo and Ulufera convened to hear the dispute. The Appellants (First Defendants) attended the meeting. The First Respondents (Claimants) did not attend.
5. Aggrieved, the First Respondents (Claimants) referred the dispute to Malaita Local Court (MLC) in Land Civil Case No. 12/2012. On 1^srt November 2012, the MLC sat at Maluú and dealt with the preliminary issues but not a full hearing, because it insisted that a Form 3 must be filed before, it can convene a full hearing on the First Respondent’s (Claimants) referral. Form I is the necessary Form to complete as a mandatory requirement for referral of a customary land under section 12 of the Local Court Act [Cap 19] where there is an “unaccepted settlement” but not Form 3.
6. After the preliminary hearing and adjournment of the main case in Land Civil Case No. 12 of 2012, the First Respondents (Claimants) took their dispute to Faudedema house of Chiefs. On the December 3^rd, 2012, the First Respondent (Claimants) obtained a decision in their favour. The Appellants (First defendants) did not attend. The Faudedema decision was recorded briefly on Form 3, rather than on a detailed descriptive and narrative record of the proceeding and determination by the chiefs in Form 1.
7. When the MLC resumed full hearing in Land Civil Case No. 12 of 2012, the Appellants (First Defendants) made a referral to the MLC being aggrieved by the Faudedema’s decision. The MLC described the Appellants’ (First defendants) referral as (“cross-appeal”).
8. Consequently, there are now 2 house of chiefs’ decisions which were brought before the MLC, one relates to Harifafa land dispute referral made by the First Respondents (Claimants) and the other by the appellants (First defendants) over the same subject customary land. The First Respondents (Claimants) referral was in relation to the joint chief’s decision of 2008. The appellants’ (First defendants) referral was in relations to Faudedema chiefs’ decision of 2013. This explained why the MLC issued receipts and referred to the appellants (First defendants) referral as (“cross appeal”).
9. Malaita Local Court finally heard these two Harifafa dispute referrals and gave its decision on 20 April 2016 in favour of the appellants (Frist defendants) as the primary rights owner of Harifafa land.
10. The First respondents (Claimants)lodged an appeal to the Malaita Customary Lands Appeal Court (MCLAC) and at the same time, they also filed the judicial review claim which is the subject of this appeal, to quash the decision of MLC, alleging procedural irregularity with the appellants (First defendants) referral dispute to MLC.

Judgment appealed from

11. We note that the judicial review claim rule 15.3.18 Conference was convened before the learned judge on April13, 2018. The learned Judge made his decision on May 30, 2018.
12. The First Respondents’ primary challenge in the claim was that the Appellants did not follow the correct process which was contrary to Section 12(1) (a), (b) and (c) of the Local Court Act [cap 19] in referring their appeal to the Malaita Local Court and therefore they sought a quashing order of the Malaita Local Court decision dated April 20, 2016.
13. 13. At the conference, it is incumbent on the judge to be satisfied with Rule 15.3.8(a) – (d) 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 not been no undue delay in making the claim; and
    • (d) there is no other remedy that resolves the matter fully and directly.
14. At the conference hearing, the judge directed that counsel only make submissions on Rule 15.3.18(d) (whether there is no other remedy).
15. The judge accepted that the Appellants’ referral was proper pursuant to section 12(1) (a), (b) and (c) of the Local Court Act [cap 19]. Because he was satisfied that the Appellants’ referral complied with sections 12(1) (a), (b) and (c) as he remarked:
    • “I can make this finding now rather than at trial to make things easier for parties. To have lengthy ligation means too much time and too much costs for parties. I do not think the evidence available now will change in a material way at trial.”
16. The judge when dealing with the issue of whether there is no other remedy available that resolves the matter fully and directly, was concerned that Malaita Local Court decision dated 20 April 2016 did not define the boundaries of customary land that is in dispute thereby did not comply with its statutory duty under the Local Court Act. The judge therefore dismissed the claim and at the same time set aside the Malaita Local Court decision of 20 April 2016 and issued the following orders:-
    1. Dismiss this judicial review claim.
    2. Set aside the MLC decision dated 20/09/2016.
    3. MLC to make fresh hearing of the dispute, newly constituted.
    4. Parties meet their own costs.
17. The judgment and orders issued on 29^th June 2018 by the learned Judge are now the subject of this appeal.

Grounds of the appeal:

They are as follow:

• (a) that the court erred in law and fact to set aside the judgment of the Malaita Local Court dated April 20, 2016 exercising its powers under Rule 15.3.18 of the High Court Rules 2007.
• (b) That the Appellants seek the following orders in lieu of these appealed from:-
  • (i) that the appeal be allowed;
  • (ii) that order setting aside the decision of the Malaita Local Court decision dated April 20, 2016 be set aside;
  • (iii) that the pending ownership appeal of the Malaita Local Court decision dated April 20, 2016, in the Malaita Customary Lands Appeal Court should be heard accordingly between the parties;
  • (iv) the Respondents pay the costs of the Appellants in this court;
  • (v) such further or other orders as the court thinks fit.

Discussions on the Appeal

18. During the hearing of this appeal, we invited Counsel for the First and Second Respondents to submit first before we heard submissions from Counsel for the appellants.
19. The learned Judge not only dismissed the judicial review claim but he also set aside the Malaita Local Court decision of 20 April 2016 which was the subject of the appeal pending before the Malaita Customary Land Appeal Court with the effect that there was no longer a Malaita Local Court decision pending before the Malaita Customary Land Appeal Court for consideration. That is the fundamental question that is raised in this judgment as to how to remedy it.
20. Counsel for the First Respondents filed written submissions and attempted to submit and rely on them but then she sensed the fundamental flow in the judgment under appeal when we discussed over it with all Counsel including her. She conceded the appeal should be allowed.
21. The Solicitor General, on behalf of the Second Respondents, although they filed no written submissions, assisted the Court and submitted that the appeal in this case should be allowed.
22. We consider and accept the appellants’ submissions to the following effect:-
    • (a) that in the context of the learned judge’s analysis, the judge was not satisfied there was no other remedy that can resolve the matter fully and directly. The learned judge commented, amongst other matters, that the underlying dispute is customary land dispute of Harifafa land and that it should be resolved in the local land court supports this conclusion. Therefore, there are other remedy that will resolve the matter fully and directly.
    • (b) that once the judge is not satisfied on the evidence before him that there is other remedy to resolve the matter fully and directly, he should then decline to hear the claim and strike it out. Here the judge dismissed the claim.
    • (c) that the judge was wrong when he went further to set aside the Malaita Local Court decision. The Malaita Local Court decision should not be set aside on the basis that that Local Court did not identify the boundaries of the land in dispute and has failed to give reasons for its findings. What the judge did was enquiring into the merit of the Local Court decisions in customary land matters. The High Court does not have jurisdiction to determine customary land dispute (see section 231 (2) [now section 254] of the Lands Titles Act and the judgment of this Court in Simbe v East Choiseul Council [1999] SBCA 9, CAC 8 of 1997 (9 February 1999). The jurisdiction of the High Court is to hear and determine the judicial review claim on the process and in this case it had been dismissed.
    • (d) that in the present case, the claim which seeks to challenge the jurisdiction of the Local Court decision the result of which, if successful the Local Court decision be quashed, was dismissed. It follows that the Court does not have discretion and or jurisdiction after the claim is dismissed under Rule 15.3.18.
    • (e) That, furthermore, the Local Court decision was made within jurisdiction. There can be no suggestion that it acted in excess of its jurisdiction requiring the High Court’s intervention as the learned judge did in this case in the court below.
    • (f) That, it is noted that the Respondent has already appealed the Malaita Local Court decision which was then pending for hearing before the Malaita Customary Land Appeal Court before making the judicial review to challenge the said claim.
    • (g) What the learned judge was concerned of in his judgment is within the jurisdiction of the Malaita Customary Land Appeal Court to deal with under section 256 of the Land Titles Act [cap. 133]. The First Respondent has already exercised their rights under section 256 of the Act by filing an appeal against the Malaita Local Court decision. The Malaita Customary Land Appeal Court is the next court in the hierarchy vested with competent jurisdiction to deal with customary land dispute and boundary dispute.
    • (h) that in the judgment under appeal reference was made to chiefs decisions that were before the Malaita Local Court and it is common to the parties which area of land and its boundaries they are disputing.

Result

23. Based on the above considerations, we allow the appeal on all grounds of the appeal. We make the following orders:
    1. that the appeal is allowed;
    2. that order setting aside the decision of the Malaita Local Court decision dated 20 April 2016, is set aside;
    3. That the pending ownership appeal of the Malaita Local Court decision dated 20 April 2016 in the Malaita Customary Land Appeal Court shall be heard accordingly between the parties;
    4. The costs shall follow the event.

Dated at Honiara, this 18^th October 2019
By the Court
Goldsbrough P
Lunabek JA
Gavara-Nanu JA