Kimitora v Marovo Council of Chiefs [2003] SBHC 12; HC-CC 099 of 2003 (13 August 2003)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Civil Appeal No. 10 of 2002

BURNLEY KIMITORA, DENNIS LIKETE AND ALI PITU OFA
(representing the Nono tribe, Western Province)

-V-

MAROVO COUNCIL OF CHIEFS
(comprising Johnathan Kevu as President and Moses Lila, James Vora,
John Lilivae, Eric Gera Jimosi Rausu as members and John Oti Maekera as Secretary)
AND STEPHEN ROQEO, SIMEON ARI,
MISAKE NAQOTO SOLOMON KULU AND ELIHU LIPU
(representing the Koggukolo tribe of Marow, Western Province)

(KABUI, J.)

Date of Hearing: 06^th July 2003
Date of Ruling: 13^th August 2003

Mr J. Apaniai for the Appellant
Mr P. Tegavota for the 1^st Respondent
Mr D. McGuire for the 2^nd Respondent

RULING

Kabui J. The Appellant filed an application for leave to appeal on 29^th November 2002 against the whole of the interlocutory judgment/orders made on 20^th November 2002 and perfected on 25^th November 2002. There are 3 grounds of appeal but at the hearing of the application, Counsel for the Appellant, Mr. Apaniai, abandoned ground 1 of the appeal whilst ground 2 of the appeal was conceded by Counsel for the 1^st Respondent, Mr. Tegavota, and for the 2^nd Respondent, Mr. McGuire. Only ground 2 was contested. Ground 2 states –

"... The learned trial judge erred in law in striking out Messrs Burnley Kimitora and Ali Pitu Ofa as Plaintiffs in the action on the basis that they are witnesses and are therefore not entitled to be present in court as plaintiffs.."

Counsel for the Appellant, Mr. Apaniai, argued that Messrs Kimitora and Ofa were members of the Nono tribe and therefore were entitled to give evidence at the trial below. Counsel for the 1^st Respondent, Mr. Tegavota, agreed but argued that the Plaintiff was the Nono tribe and its members including Messrs Kimitora and Ofa should merely be witnesses. He argued that one member of the Nono tribe could have been the Plaintiff for the Nono tribe and others would be the witnesses. He said that such an arrangement would not in any way prejudice the rights of the Nono tribe. He said the exclusion of Messrs Kimitora and Ofa as Plaintiffs was not fatal to the interest of the Nono tribe as the alleged owner of the Nono land in custom. Counsel for the 2^nd Respondent, Mr. McGuire, gave his support to the arguments advance by Counsel for the 1^st Respondent.

The decision of the Court

I accept that Mr. Lokete as the Plaintiff representing the Nono tribe as a member of that tribe was sufficient to protect their interest in that land. He was also the Defendant in a related Civil Case No. 159 of 2002. The person who went to the Chiefs with the dispute in the first place in this case was Mr. Lokete and not Messrs Kimitora and Ofa. He is the Plaintiff in the first place. In this respect, of Order 17 of the High Court (Civil Procedure) Rules, 1964 "the High Court Rules are relevant." Rules 8 and 9 of Order 17 of the High Court Rules clearly do entitle one person to represent the community or line or group according to custom practice or where numerous persons are involved in suing or being sued in a court of law. Obviously, Mr. Lokete, as the Plaintiff, would be entitled to state his case and give evidence himself and call witnesses.

Messrs Kimitora and Ofa could have been joint Plaintiffs to increase their number as the Plaintiffs but that is not absolutely necessary in this case. Even if they were made joint Plaintiffs, they would be merely sitting beside Mr. Lokete who was to be the spokesman for them. The other factor against them joining as Plaintiffs was that they had filed affidavits upon which they could be cross-examined. As a matter of fact, Messrs Lokete, Kimitora and Ofa did file affidavits on 6^th November 2002. However, Mr. Lokete was the Plaintiff at the hearing before the Marovo Council of Chiefs on 23^rd August 2002 and is also the Plaintiff in the application for an order of certiorari. Messrs Kimitora and Ofa were witnesses; they could not be joint Plaintiffs and at the same time witnesses. The affidavits filed by them would remain evidence in support of Mr Lokete's evidence which could be tested by cross-examination. That is allowable to test his evidence as the Plaintiff. There would be no injustice caused to the Nono tribe by the omission of Messrs Kimitora and Ofa from being joint Plaintiffs. Deciding who should be the Plaintiff is a matter for the members of the Nono tribe. The fact that Mr. Kimitora was bent on side-lining Mr. Lokete as the Plaintiff does not really matter because their case is one that is common to all the members of the Nono tribe. They are bound to speak with one voice to win their case in court. As I have said, Messrs Kimitora and Ofa could well be co-plaintiffs provided they are not witnesses at the same time. That is the point in issue. I think the position is fairly clear and presents no arguable point worthy of being sent to the Court of Appeal for a decision. I would refuse leave for ground 2 to proceed to appeal. Costs will be costs in the appeal.

An Order for a stay

By Notice of Motion filed on 21^st March 2003, the Appellant seeks an order for stay of the orders I made on 25^th November 2002. The effect of order 3 of the said orders is that the Plaintiff's application by Notice of Motion for an order of certiorari was being adjourned awaiting the decision of the Marovo Local Court following a referral of the dispute to that court on 18^th October 2002. The effect of the application for a stay, on the other hand, is that the Marovo Local Court should not hear the referral of a dispute to it for its determination until the appeal has been concluded. The Plaintiff's intention in his application for an order of certiorari is to cancel the determination of the Marovo Council of Chiefs and to declare it null and void. If the appeal succeeds, the application for an order of certiorari can proceed to annul the determination of the Marovo Council of Chiefs. On the other hand, even if the Appellant succeeds in the appeal, it will not the erase the fact that there is in existence a referral of the dispute to the Marovo Local Court for hearing. The referral may well not be an appeal but that is not the point. The point, as I have said is that there is a referral to be dealt with by the Marovo Local Court. I have not, in this respect, heard evidence to show that the Marovo Local Court has heard the dispute referred to it. If there is lack of funding, the dispute may never be heard. It is now 9 months since I adjourned the hearing of the application for an order of certiorari. Any further delay by the Marovo Local Court to deal with the dispute referred to it due to lack of funds will cause injustice to the Appellant. If I grant the order for stay and the appeal does not proceed due to lack of funding by the Appellant, the order for stay will probably bar the Marovo Local Court from proceeding with the referral made to it by the 2^nd Respondents. The Respondents will probably apply for the dismissal of the appeal on that ground thus bringing it to a formal conclusion. The staying order will then come to an end. Delay of justice caused by lack of funding for the Marovo Local Court is the problem. Whichever way one moves, there is the problem of funding causing delay everywhere. The Marovo Local Court has had 9 months to deal with the referral of the dispute and has not yet done anything to that effect. But do I have the power to suspend the jurisdiction of the Local Court to exercise its legitimate jurisdiction? I do have the view that I do not have the power to do what is asked of me in this case. His effect of order 3 of the orders I made on 25^th November 2002 was that I adjourned the hearing of the Appellant's application for an order of certiorari until the Marovo Local Court had done its part in the resolution of the dispute. I said nothing about the exclusive jurisdiction of the Marovo Local Court to deal with customary land disputes which is governed by the provisions of the Local Court Act (Cap.18). I cannot over-ride the wish of Parliament as stipulated in that Act and order a stay of its legitimate jurisdiction thus acting against the provisions of that Act. I decline to do that in this case. In any case, I do not know how I can order a stay of an order for the adjournment of the Appellant's application for an order of certiorari for it is already adjourned. This application for an order for stay is misconceived. I refuse it. The application is dismissed with costs. The orders of the Court are as follows –

1. Leave to appeal on ground 2 refused with costs to be costs in the appeal.

2. Stay refused with costs.

F.O. Kabui
Judge