Muna v Billey [2003] SBHC 9; HC-CC 284 of 2001 (11 December 2003)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 284 of 2001

EDDIE MUNA AND SMILEY MUNA

-V-

HOED BILLEY AND TOBEN MUNA AND ATTORNEY GENERAL
(AS REPRESENTATIVE OF THE COMMISSIONER OF LANDS

Honiara: Brown J

Date of Hearing: 04 December 2003
Date of judgment: 11 December 2003

Custom law - primary right in the Chiefs to enunciate customary law - clear findings of law by Bellonese Council of Chiefs - no disputant party in terms of s.12(3) of the Local Courts Act (Cap 19)

Custom law -procedure to be followed by Chiefs in their deliberations - question whether audi alteram partem rule to be imputed in custom when custom not a jurial process - Constitution: Schedule 3 para. 3(3)

Injunctions - ex parte injunction preventing disposition of funds - inter partes hearing resulting in jurisdictional question over plaintiffs' cause of action - judges finding against plaintiffs - basis on which injunction extended.

The applicant/defendants were subject to an injunction continued by this court on the 28 March 2002 preventing them benefiting from moneys paid for the lease of the airport on Bellona. By motion they sought to have the injunction discharged for the earlier finding of the court recognized that the plaintiffs were seeking redress in the wrong place. Facts sufficient for the reasons appear in the judgment.

Held: 1. The Council of Chiefs' procedures are unfettered by concepts recognized by Western law and adopted in this jurisdiction in jurial proceedings.

Constitution: Schedule 3 para. 3(1)

Ridge -v- Baldwin (1963) 2 All ER 66 referred to;

Price Waterhouse -v- Reef Pacific Trading Ltd. CAC 3/95 followed.

2. The Chiefs are accorded the primary responsibility to enunciate customary law.

Constitution: Schedule 3 para 3(3) Local Courts Act (cap 22) s. 12(1),(3)

3. The injunction without substantive proceedings has no basis in law and should be discharged.

Gandley Simbe -v- East Choiseul Area Council anors (CAC 8/97) applied.

Mrs. M. Samuel for the Applicant/1^st Defendants
Mr. Brian Liddy by leave for the Respondent/Plaintiffs
Mr. G. Deve for the 2nd Defendant

Motion to discharge interim injunction

Brown J: On the 28 March 2002 my brother judge, Kabui PJ gave judgment refusing interim orders arising out of a claim by these respondent/plaintiffs to benefit from moneys payable for the lease of the western part of Anua Airport, Bellona Island. They claimed as members of the landowning tribe.

The judge did, however, continue in force an interim injunction affecting the lease moneys. The motion consequently seeks to discharge the injunction for the reasons given in the earlier judgment and for other reasons which appear from my decision.

Mrs. Samuel points to the finding of the 28 March 2002 where the judge at 4 found that the High Court does not have jurisdiction in the circumstances of this case.

"Clearly this court has no jurisdiction to hear such dispute on the authority of Gandly Simbe's case."

The judge struck out the originating process. As he said:

"the dispute must be referred to the Chiefs for determination and then to the Local Court etc if necessary"

On the 23 May 2002 the dispute at the request of the defendants, came before the Bellona Council of Chiefs. The plaintiffs had, notice, I am satisfied, but did not attend the hearing. They had been helped by the defendants who postponed the hearing for their convenience. But whether the notice given accords with custom (is blowing of a conch shell, perhaps sufficient?) is not something about which I need concern myself, for the Chiefs were obviously satisfied that they could embark on the hearing in the plaintiffs absence and they did so.

I am sure custom reflects the old maxim omnia praesumuntur rite it sollenniter esse acta (it is presumed that all the usual formalities have been complied with). The defendants were successful before the Council of Chiefs. The Chiefs found:

"Our Council of Chiefs granted that Holland Billy and Torben Munah (defendants) are the rightful owner of Nukuitu'a Land and also to dealt with its matter"

McPerson JA whose judgment was adopted by the Court of Appeal in Gandley Simbe was careful to address and refute argument that the High Court had, by virtue of s. 51 of the Forest Resources and Timber Utilisation Act, jurisdiction to hear disputes about customary land ownership. He said –

"Indeed the contrary intention (to the argument) is clearly implicit in the contemporaneous enactment in Part II A of the provisions of s.5E (1), which expressly confirm a right of appeal to the customary land appeal court having jurisdiction in the area; and of those in s. 5E(2), which make the decision of such a court not only final and conclusive but prevent it from being questioned in any proceedings whatsoever. The effect of that subsection is, as we have seen, to exclude the jurisdiction of the High Court to issue certiorari in respect of a decision of a customary land appeal court given in the exercise of jurisdiction under that provision or its earlier equivalent. See Talasasa v. Talasasa (1988) CAC 2/1987, at 4-5 and Paia v. Talasasa (1980/81) SILR 93 approved by this Court in Beti v. Allardyce Lumber Co. Ltd. (1992) CAC 5/92, at 9".

Perhaps the use of the phrase "and then to the Local Court etc if necessary," when read by the applicant, caused them to presume an obligation which legislation does not expect of them. McPherson JA's statement presumed exhaustion of any appeal process about custom findings, it cannot be read as authority for the need in every case to obtain a decision of the CLAC before ones rights are recognized.

The finding of the Chiefs would be to no purpose, if we are to accept the defendant solicitor's following statements as a valid statement of law.

In her letter to the Deputy Chief Magistrate of the 10^th October 2002, Mrs. Samuel's firm said variously.

"Our client (the defendants) had assumed in his letter of 2^nd October that the Chiefs determination was an "unaccepted settlement" hence he requested to have the same issue referred to the Local Court. We affirm our clients view on the point".

and again

"Since the non-appearance before the Chiefs by the Muna brothers had rendered the Chiefs determination an "unaccepted settlement" the referred to the Local Court is therefore necessary in our view as a matter of law and certainly in conformity with the judgment"

For in the first part, the letter presumes the fact that absence of a respondent in a hearing of a referral to the "chiefs" must imply an "unaccepted settlement".

This latter phrase is seen in the schedule to the Local Court Act, Form I (section 12(2)) which is the same as Form II ("accepted settlement") except for the addition to the Form II of a statement – by both complainant and defendant to the effect that both accept the decision and importantly an undertaking to abide by it. So by dint of the 2nd pro forma, the provisions of s. 14(2) are addressed. Section 14 prescribes when the Local Court may receive a decision acceptable to both sides.

But the 1^st pro forma is prescribed under s. 12(1). Now s.12 deals with the Local Courts statutory jurisdiction to hear disputes involving or arising out of customary land. The Local Court is a creature of statute. It powers must be found in the Act.

"Custom" is the principle responsibility of the Chiefs. This accords with Schedule 3(1) of the Constitution which acknowledges the existence of customary law as "part of the law of the Solomon Islands".

Section 12(1) says;

"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".

The Local Court only finds jurisdiction when the procedure to complain is strictly followed, and the Court is satisfied that circumstances enumerated in (a) to (c) have taken place. (A Customs Recognition Act is not in force, so that regulation of the manner and resolution of conflicts of customary law remain a matter for the Chiefs.)

So apart from these sections in the Local Court Act, (and the Land Titles Act subsection 254 & 255 giving exclusive jurisdiction to the Local Court) the "proof and pleading, regulation of manner and resolution of conflict", remains a matter of custom and usage in the discretion of the Chiefs, in accordance with the Constitution (Schedule 3(3)). Their procedural powers are unfettered by any consideration of concepts more suited to jurial proceedings.

My allusion to the maxim is strengthened, for there is no Customs Recognition Act for instance, to be read with any established practice of the Chiefs to bring into conflict "procedure" and the need or otherwise for appearances of persons before them, or the need for attendance of particular persons before their decisions in personen or in rem are efficacious. Section 12 does not alter the primary right in the chiefs for customary dispute resolution over land or matters arising, a right clearly expressed by the words of the section.

The Land and Titles Act (despite use of the phrase "exclusive jurisdiction, to the Local Court") does not alter the need for Chiefs to be accorded the primary responsibility to enunciate customary law. That is express by the wording of s. 12(1) of the Local Court Act. Before criticism can be levelled at the Chiefs' decision, a reading of s. 12(1) requires at least one of the parties to resile, or recoil from all or some part of the Chiefs decision. That must be a positive act as envisaged by s. 12(3) Local Courts Act;

"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'

Yet curiously here the successful parties, the applicants/defendants, appear to have felt obliged to undertake an obligation which the Act in no particular, imposes on them. They are not aggrieved by the decision of the Chiefs in terms of s.12 (3) yet they, inexplicably, sought to file with the Clerk of the Local Court the "unaccepted settlement" Form 1 which presupposed that they are the aggrieved party.

This view of the defendants and their lawyer (shown by the quotations from the letters, above) cannot prejudice their right at law for it would be even more curious if the law could be interpreted and changed in that fashion by whim of litigants or their lawyers. The fact that the applicant/defendants have presumed, in the words of Holland Billy (one of the them) that the Chiefs determination of the 23^rd May 2002 is an "unaccepted settlement" (in the absence of the respondent/plaintiffs at the Chiefs hearing) is a presumption wrong in law for the obvious reasons set out above. The acceptance of the applicant/defendants attempts to have a further hearing before the Local Court, by the respondent/plaintiff cannot affect the standing and validity of the Chief's findings. No dispute has been referred in accordance with s.12(3) to the Local Court.

It must also be remembered that the Western concept of a breach of the audi alteram partem rule giving rise to an arguable appeal point in the sense understood in the reasoning of the House of Lords, in Ridge v. Baldwin, and the obligation in custom affecting the Bellona Council of Chiefs to state customary law in this case, is difficult to reconcile.

For if the lawyers' letters reflect some implied acceptance of the need to accord the Western concept recognition in these circumstances, then, I consider they mistake the law. The Chiefs evince custom regulating inheritance and property rights of adoptee persons, a question of pure customary law, unrelated to any need to find facts. Applying the law to the accepted facts, the Chiefs have published their decision of the 23^rd May 2002. That process, then cannot be equated with a jurial one, (nor administrative), for the Chiefs are the oracular authority in so far as custom is concerned. So great care should be exercised before presuming a right to be heard in matters before the Chiefs for they do not necessarily exercise powers as arbitrators or judges, rather they are the repository of customary truths or law. Even in a Western sense, where judges (whether or not in the strict sense) come to arbitrate, not every breech will entitle a litigant to redress (Price Waterhouse anors v. Reef Pacific Trading Ltd anors CAC 3/95). I quote from the judgment of the Appeal Court at 10 where the Judges of Appeal said -

"In our considered opinion, the qualification of the relevant principles of common law by the High Court of Australia in Stead v. State Government Insurance Commission ((1986) [1986] HCA 54; 161 CLR 141) is a proper and a correct development of those principles. We would oversees adopt those qualifications as part of the law of Solomon Islands. They are sensible and practical. They husband appellate resources. They focus the attention of the appellate court on the suggested error of the primary judge's orders rather than upon the reasons given for those orders. Often the orders will be clearly correct even where the reasons are defective or even wrong or the procedures followed open to criticism".

The "qualification" to which the court was alluding, was the need to set aside any supposed right to be heard when a question of law would clearly be answered unfavourably to the disputant party. Yet the disputant party in these proceedings has taken no steps, rather the successful party before the Chiefs commenced a procedural process to have that favourable finding reviewed by the Local Court. Such process was unnecessary, misguided, and may have proceeded on this misapprehension of the need to consider the audi alteram partem rule.

The substantive rights of the parties have been determined by the particular Chiefs. These Chiefs all have affixed their signatures to the finding. They are –

1. Ron Puia (Chairman)

2. Wilson Taungabea

3. Alo Sanga

4. Morise Saueha

5. Jeffery Taika

As I say, any procedure matters of custom required by the Chiefs leading up to the hearing are within their absolute discretion, in the absence of any legislation dealing with Customs Recognition. I would be somewhat surprised, for instance, were the young plaintiffs to be in such a position of status and power to dictate to the Chiefs when and how they are to conduct their hearings.

In any event, the respondent/plaintiffs had notice of the Chiefs hearing.

But nevertheless, any supposed procedure irregularity cannot affect the substantive finding handed down by the Chiefs on the 23^rd May 2002.

If the Local Court were to become seized with a dispute, a procedural point about the conduct of the Chiefs hearing in the absence of the plaintiffs may be raised at that point in time. There has been no attempt by the respondent/plaintiffs to point to any part of the decision of the Chiefs as unacceptable, supported by reasons.

There may be an increasing culture of vexatious litigation over Chiefs decision, but the Constitution is clear. The findings of the Chiefs in custom shall be afforded the status of law.

I am satisfied that the findings of the Bellona Chiefs of the 23^rd May 2002 clearly express the rights of the applicant/defendant to this particular land.

There is consequently no basis for the continuation of the injunction for it flies in the face of the Chiefs findings. As my brother judge said, the dispute has not been resolved in favour of the respondent/plaintiffs by the Chiefs. Quite the opposite.

In these circumstances, I do not need to address Mrs. Samuel's argument about the validity of the earlier order continuing the injunction when the statement of claim was effectively struck out. McPherson JA did express views about the availability of injunctive orders to support proceedings in the Local Court (Gandly Simbe's case at 22) but no proceedings were effectively on foot when these injunctive orders were continued.

Order

I discharge the injunctive order made ex parte on the 31^st October 2001 and continued on 28^th March 2002.

I further order a permanent stay in these proceedings, for the reasons given by Kabui PJ on the 28 March 2002 since this court has no jurisdiction to entertain the summons.

I award cost of the summons today to the applicant/defendants, for the respondent/plaintiffs have by leave, appeared by the Public Solicitor to argue against the motion without advancing any just cause in support. Mrs. Samuels's written argument should have afforded the Public Solicitor pause but unfortunately the court was not advantaged by a short adjournment that I gave to enable him to consider the argument.

J.R. Brown
Puisne Judge

Crystal Lawyers for the Applicant/ defendants
The Public Solicitor for the first defendants
The Attorney General for the State