Felix v Korutalaumeimei [2001] SBHC 108; HC-CC 001 of 2001 (27 April 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 01 of 2001

FELIX ANO SIWA’AHU

V

KORUTALAUMEIMEI AND ALICK MAEHAU

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 20th April, 2001
Judgment: 27th April, 2001

J. Apaniai for the Applicant
P. Tegavota for the Respondent

JUDGMENT

(Kabui, J): By Notice of Motion filed on 6th March, 2001, the Plaintiff has asked the Court for the following Orders -

1. An order of Certiorari to bring up and quash the decision of the Korutalaumeimei Chiefs Panel made at Matangasi Village, South Malaita, on the 20th June 2000 whereby the Second Defendant was adjudged to be the owner of Tangiliu land.
   
2. Such further or other orders as the Court deems fit.
   
3. That the First and Second Defendants pay the costs of this application.
   

The Facts

Tangiliu land is situated near Afio Substation, Small Malaita, in the Malaita Province. There is a dispute over the Tangiliu land between the Plaintiff and the 2nd Defendant because of logging operation there being undertaken by Omex Limited and Loi Family Project. The Plaintiff on behalf of his tribe filed Civil Case No. 173 of 2000 in the High Court against George Kiriau Noa, Omex Limited and Loi Family Project. The dispute in the High Court was resolved temporarily by a Consent Order dated 2nd June, 2000. One of the terms of the Consent Order is the speedy resolution of the dispute over Tangiliu land in the Malaita Local Court. In pursuance of this, the Plaintiff immediately set out to arrange with the Hoasitaemane Chiefs Panel (“the Hoasitaemane Panel”) for their hearing of the Tangiliu dispute between the Plaintiff himself and Alick Maehau, the 2nd Defendant. The Hoasitaemane Panel is the Panel that has jurisdiction to hear land disputes in certain areas in Small Malaita which includes Afio, the area in which Tangiliu land is situated. As a result of a meeting held on 10th June, 2000 at Pululaha Village, the Hoasitaemane Panel’s Secretary, Mr. Tohuinoni by notice informed the Plaitiff and the 2nd Defendant that the Tangiliu dispute would be heard on 21st and 22nd June, 2000 at Afio commencing at 9:00 am. The Notice of hearing was served on the Plaintiff on 14th June 2000. The next day, 15th June, 2000, the Plaintiff came to know about the fact that two members of the Hoasitaemane Panel had been picked up on 12th June, 2000 in an Omex Limited outboard motor and were taken to the Tauranikuma log pond by Messrs Mei’e and Sahu, they being supporters of the 2nd Defendant.

For that reason, the Plaintiff decided to engage the service of the Hutohuto Chiefs Panel (the Hutohuto Panel) to hear the Tangiliu dispute between himself and the 2nd Defendant. After consulting the President of the Hutohuto Panel, Mr. Nakumora, on 18th June, 2000, he agreed that the Hutohuto Panel would hear the Tangiliu dispute on 21st June, 2000 at Afio. The 2nd Defendant was to be told that same information also by the Secretary to the Hutohuto Panel, Mr. Maneutai.

However, the next day 19th June, 2000, the Plaintiff received notice from the President of the Korutalaumeimei Chiefs Panel (the Korutalaumeimei Panel) that the Tangiliu dispute would be heard by the Korutalaumeimei Panel on 20th June, 2000 at Matangasi Village at 9:30 am. The Plaintiff objected on the ground that the Paramount Chief of the Korutalaumeimei Panel, Mr. Laealaha was a signatory to the Logging Agreement with Omex Limited to which the Plaintiff had objected in the past.

The other reasons were that the Plaintiff had already engaged the Hutohuto Panel to hear his case and that the Panel had not reversed its decision to hear the Plaintiff and the 2nd Defendant and that the notice of hearing was too short so that the Plaintiff had no time to consult his witnesses. Later, the Plaintiff discovered that Messrs Mei’e and Tohupo had objected to the Hutohuto Panel hearing the Tangiliu dispute. They said the Hutohuto Panel had no jurisdiction and the right Panel was the Hoasitaemane Panel. In other words, the 2nd Defendant and his group objected to the Hutohuto Panel hearing the Tangiliu dispute. The Secretary to the Korutalaumeimei Panel, Mr. Pipi then told the Plaintiff that he had not attended the hearing of the Tangiliu dispute conducted by the Korutalaumeimei Panel because whilst the Plaintiff had already paid $100 to the Hutohuto Panel, the 2nd Defendant had paid the Korutalaumeimei Panel $500.00 to hear the Tangiliu dispute. The Korutalaumeimei Panel having made its decision on 20th June, 2000 on the Tangiliu dispute failed to inform the Plaintiff of its decision. The Plaintiff eventually saw a copy of the Korutalaumeimei Panel decision on 8th December, 2000 at Honiara in his case file retrieved from the Public Solicitor’s Office at Honiara.

The Jurisdiction Issue

There is no dispute that the Korutalaumeimei Panel conducted a hearing on 20th June, 2000 of the Tangiliu dispute in the absence of the Plaintiff. The 2nd Defendant at that hearing called 5 witnesses to support his case against the Plaintiff. At the end of the hearing the Korutaumeimei Panel ruled in favour of the 2nd Defendant. A copy of that decision is Exhibit “FAS6” attached to the Plaintiff’s affidavit filed on 10th January, 2001. The Plaintiff however says the Korutalaumeimei Panel had no jurisdiction to hear the Tangiliu dispute and therefore its decision made on 20th June, 2000 should be quashed for lack of jurisdiction. The starting point is section 12 of the Local Courts Act (Cap. 19) which simply says that 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.

Section 12 is silent on the limits of the jurisdiction of the Chiefs or traditional leaders. It is assumed that the jurisdiction of Chiefs or traditional leaders is conferred by mutual agreement and understanding by custom in the locality in which such chiefs or traditional leaders are residing. In fact, section 11 of the Act defines “Chiefs” as meaning “Chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute.” Jurisdiction of Chiefs or traditional leaders in customary land disputes is therefore based upon the locality of the land in dispute and the acceptance of the parties to the dispute of the Chiefs or traditional leaders residing in that locality to deal with the dispute. In this case, the Chiefs constituting the Hoasitaemane Panel would have been the Chiefs or traditional leaders residing in the locality of the Tangiliu dispute, Tangiliu land being situated within the locality of the Chiefs. The problem however was that two members of the Hoasitaemane Panel, Messrs Lie and Horoimarau had associated themselves with Omex Limited being the supporter of the 2nd Defendant. The conduct of the two members of the Hoasitaemane Panel had created in the mind of the Plaintiff doubt about the impartiality of the Hoasitaemane Panel should they hear and determine the Tangiliu dispute. No evidence has been produced to explain the composition of Hoasitaemane Panel, its quorum and the pool of Chiefs or traditional leaders from which it draws its members. In custom, there may be no such things as mentioned above. The doubt about the Hoasitaemane Panel’s impartiality however prompted the Plaintiff to consult the Hutohuto Panel to hear the Tangiliu dispute. But unfortunately, Messrs Mei’e and Tohupo, the supporters of the 2nd Defendant had objected to the jurisdiction of the Hutohuto Panel to hear the Tangiliu dispute. The 2nd Defendant preferred the Korutalaumeimei Panel to hear the Tangiliu dispute but the Plaintiff objected and did not attend the hearing before the Korutalaumeimei Panel on 20th June, 2000 at Mataugasi Village in South Malaita. Clearly, the Konitalaumeimei Panel did not have the jurisdiction to hear and determine the Tangiliu dispute because its jurisdiction was not accepted by both parties. The Plaintiff disputed its jurisdiction in clear terms and thus this application to quash its decision on 20th June, 2000. The jurisdiction hopping that seemed to have been the case here is not within the intention of section 11 as read with section 12 of the Local Courts Act. The reason is that section 11 as read with section 12 of the Local Courts Act would seem to suggest that jurisdiction of Chiefs or traditional leaders in dealing with customary land disputes is restricted to the locality in which the Chiefs or traditional leaders are residing and the land in dispute is situated. The demarcations of the limits of each locality would seem to be the responsibility in practice of the local communities, their Chiefs or traditional leaders in consultation with the President of the Malaita Local Court. However, the practice that one Chiefs Panel of another locality is invited to determine a dispute in another locality is not based upon sections 11 and 12 of the Local Courts Act but upon the general principles of natural justice in the common law as applied in this jurisdiction under section 76 of the Constitution and Schedule 3 thereto. That is to say, “... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done ...” (per Lord Hewart C.J. in Rex v Sussex Justices Exparte McCarthy[1923] EWHC KB 1; [1924] 1 KB 256 at 259). Lord Deming, M.R. in Metropolitan Properties Ltd v Lannon [1968] 3 AER 304 added to it at page 310 that “... Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking” “The judge was biased. ...”. Clearly, the Plaintiff feared that the Korutalaumeimei Panel would be biased against him through Mr. La’ealaha, a paramount chief who signed the logging agreement with Omex Limited opposed by the Plaintiff. The Plaintiff could well have said, “Mr. La’ealaha will be biased against me”. This same practice has been applied by the Local Courts and the Customary Land Appeal Courts not by invitation but by drawing from a large pool of members duly appointed to serve as justices of these courts. In my view, the Korutalaumeimei Panel is a body authorised by the provisions of the Local Courts Act to decide rights of persons in customary land disputes. As such, its decision must be subject to the supervision of the Court.

The typical description of the order of certiorari is as stated at page 774 of The Supreme Court Practice, 1973, Volume 1 in these terms

“... The most important function of the order is that by it, in the exercise of the supervisory capacity of the High Court over inferior Courts, judgments, orders, convictions (other than judgments upon indictments) or other proceedings of inferior Courts, whether civil or criminal, made without or in excess of jurisdiction, may be removed into the High Court to be quashed. ...”

The classic statement of the scope of certiorari is to be found in the dictum of Lord Atkin in R v Electricity Commissioners [1924] 1 K.B. 171 at 205. That is to say

“... Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs. ...”

This dictum of Lord Atkin has since been eroded by the Courts over the years. The modern approach of the Courts is as stated by Muria, C.J. in Eric Tavea & Gordon Leua v Paripao House of Chiefs and Eric Kuta (Civil Case No. 196/99). At pages 2 - 3, Muria, C.J. said

“... Traditionally, certiorari can only lie against a body which was obliged to act judicially or quasi-judicially. However, it has now been made clear that this ancient remedy of certiorari must be adaptable to meet the changing conditions of our time. Decisions of tribunals or bodies established by acts of government and are of public, as opposed to private, character and which although not obliged to act judicially, are required to act fairly are reviewable by certiorari. This is the modern approach. The only constant limit is that the body concerned must be performing a public duty. See Reg. v Criminal Injuries Compensation Board, Ex. p. Lain [1967] 2 Q.B. 864; Reg. v Take-Over Panel, Ex p. Data fin P/c [1986] EWCA Civ 8; [1987] 2 W L R 699.

The Paripao House of Chiefs in this case had constituted itself for the purpose of enquiring into the dispute over the land in question between the applicants’ line and second respondent’s line with the Local Courts Act which provides, inter alia, that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless that dispute is first dealt with by the chiefs: section 12(1), (Cap. 19, Revised Edition of the Laws). One is therefore disposed to see that the authority of the Chiefs (or a body of them) stems, not only from an act of government but also from an Act of Parliament. The manner in which the Chiefs constitute themselves into a body and the procedure employed at the hearing of disputes before them are, however, not formalised by statute. Nevertheless the Chiefs are a recognised authority for the purpose of determining the rights of the disputing parties to a customary land dispute. The Chiefs have, by the nature of their authority, exercise at least some judicial-type duty. The remedy we are concerned with here would therefore lie against their decision.

Again, not only is their authority derives from the statute, the performance of their functions forms an integral part of the system of dispute adjudication applicable to customary land disputes in Solomon Islands. This gives them a public law character with sanctions thereof enforced publicly. They, therefore, also exercise important public law functions. Again in such a situation, the remedy of certiorari will lie. ...”

I agree with Muria, C.J. remarks regarding the role of Chiefs on traditional leaders for that matter and how the Courts should regard them for the purposes of the issuing the Writ of certiorari. It has been said that if

“... a particular voluntary body is public in character certiorari will lie even though the powers of the body do not derive from any specific legal source but rely upon acquiescence alone. However, in practice a declaration may be a preferable remedy. ...” (See Applications for Judicial Review Law and Practice of the Crown Office, Second Edition, 1993 by Graham Aldons and John Alder at page 49).

This quotation is relevant in this case in the reverse in that there was no acquiescence from the Plaintiff as regards the jurisdiction of the Korutalaumeimei Panel to hear the Tangiliu dispute. In the result, I find that the Korutalaumeimei Panel did not have jurisdiction to the hear the Tangiliu dispute on 20th June, 2000 at Matangasi Village.

The Natural Justice Issue

The reasons for the Plaintiff’s refusal to attend the Korutalaumeimei Panel hearing on 20th June, 2000 were set out in paragraph 9 of the Plaintiff’s affidavit filed on 10th January, 2001. There was a confusion in the mind of the Plaintiff because he was of the understanding that the Hutohuto Panel was to hear the Tangiliu dispute at Afio on 21st June, 2000. However, in the evening of the next day, the Plaintiff received notice that Korutalaumeimei Panel was to hear the same dispute the next day at Matangasi Village at 9:30 am. The Plaintiff immediately informed the President of the Korutalaumeimei Panel that he would not attend because a member of that Panel had signed the logging Agreement with Omex Limited opposed by the Plaintiff. Inspite of the Plaintiff’s objection and other reasons stated in paragraph 9 of the Plaintiff’s affidavit above, the Korutalaumeimei Panel went ahead and heard the Tangiliu dispute and decided it in the absence of the Plaintiff. Clearly, that was a breach of natural justice in that the Plaintiff was denied the right to be heard. Whilst the 2nd Defendant in his affidavit filed on 13th February, 2001 deposed to facts relating to hearings in 1995 between the same parties, such facts are not sufficient to correct the issues of lack of jurisdiction and breach of the principles of natural justice in favour of the 2nd Defendant. As for this issue, I find that the principles of natural justice had been breached by the Panel in conducting the hearing against the wish of the Plaintiff and in his absence. I must therefore on the whole order that the decision of the Korutalaumeimei Panel made on 20th June, 2000 be quashed forthwith. Each party will pay his own costs. Although I have ruled against the 1st and 2nd Defendant, the Plaintiff seemed to have contributed to the manner in which the 1st and 2nd Defendants had conducted themselves in resolving the Tangiliu dispute.

That is to say, the Plaintiff had shown some attitude of unwillingness to co-operate with the Hoasitaemane Panel in 1995 in resolving the Tangiliu dispute plus his further inability to get the dispute into the Malaita Local Court in 1995. There is evidence to say that the Plaintiff, perhaps out of ignorance, had not complied with the requirements of section 12 of the Local Courts Act. There is however attached to his affidavit filed on 10th January, 2001, Exhibit “FAS7” (Form LC) which is Form 1 in the Schedule to the Local Courts Act. However, he was not aware of this Form and the fact that it had been sent to Auki from the Korutalaumeimei Panel. This Form 1 may no longer be valid in view of my ruling against the decision of the Korutalaumeimei Panel. For the Plaintiff, it may mean having to lodge form LC in respect of the Hoasitaemane Panel’s decision on 18th January, 1995 together with a statement under section 12 (3) of the Local Courts Act. He may well have to seek legal advice or visit the Office of the Malaita Local Court at Auki to sort this out once and for all. Or, alternatively, he may have to start afresh bearing in mind that there may be further disagreements about the jurisdiction of the Hoasitaemane, Hutohuto and Korutalaumeimei Panels. Going round in a circle or deliberately delaying would not solve this dispute.

F.O. Kabui
Judge