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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 465 of 2007
ROBERT VAEKESA
V
VARISI HOUSE OF CHIEFS,
1ST DEFENDANT
AND:
ALICK SOGATI
2ND DEFENDANT
FAUKONA, J.
Date of Hearing: 10 November 2008
Date of Ruling: 28 November 2008
F. Waleanisia for the Claimant
P. Tegavota for the Defendants
RULING ON APPLICATION FOR JUDICIAL REVIEW
Faukona, J.
This is an application for Judicial Review pursuant to Rule 15.3.4 of the Solomon Islands Court (Civil Procedure) Rues 2007. The relief sought are:-
The decision of the Varisi House of Chiefs which is being the subject of this application is outline as thus:-
"The Ngatakobo tribe are truly the owner of the Ngatakobo land. They are the original owner of Ngatakobo land. Mr. Alick Sogati and his people of Ngatakobo, they are the only people who have every right to have access for further development within the Ngatakobo land.".
The Claims
The Claimant claims ownership of Vure land which comprised of Volekana 1, Volekana 2, Nola and Kilaghuru block of lands. That he is a member of both Volekana and Sukuvai tribes through his mother Salome Derekolo. His clan through Luikana of Sukuvai had acquired rights and claim to those lands which situated within Sukuvai land. Those blocks of land existed between Kozo stream and Lalaguti stream.
Further he also claim ownership of those lands through intermarriage of Sogavena who was a male descendant of Volekana tribe who married Gilaviuru, the daughter of Liukana the son of Sukuvai, the principle owner of Sukuvai lands. He claims that those lands were given to his clan for services rendered by Galaviuru as a nurse aid; see his affidavit filed on 10th December 2007.
In his affidavit filed on 23rd March 2008, the Claimant also claimed ownership of Ologho land through original discovery and settlement by his ancestors.
The Second Defendant claim ownership of Ngatakobo customary land. However by letter dated 20th June 2007 written by Rence Dako of which a notice of hearing was attached to (see Exhibit RV4) Claimant’s affidavit filed on 10th December 2007, addressed to the Claimant and others, that other customary lands too were included as Volekana 1, Volekana 2, Sukuvai land and Zizima land.
I did not seem to understand the fact, whether those four lands are part and partial of Ngatakobo land. Even if I insisted to know, it is an issue this court lacks jurisdiction to entertain. Hence, the parties have to sort out among themselves in the rightful forum. Ensure that the lands being the subject of the dispute are well identified with clear demarcated boundaries.
Identification of Ngatakobo land
At the Timber Rights Hearing in 1995, Volekana 1 and Volekana 2 customary lands were large portion of lands bounded by Oake river and goes in land. At that hearing the East Choiseul Area Council identified the Claimant and three others as rightful persons entitled to grant timber rights in Volekana 1 land, and Steven Taki and four others to grant timber rights in Volekana 2, and Leadly Lukisi and three others are entitled to grant timber rights in Zizima land, see Exhibits DG2, DG3, DG3-A and DG3 – B attached to Galo sworn statement filed on 5th September 2008.
In February 1999 the Senga Council of Chiefs determined Dali tribe as owner of a land from Loanga river to Kozo stream. In September 1999 the Senga Council of Chiefs determined Dali tribe as owner of a land from Kozo stream to Lalaguti stream. None of those land won by Dali tribe has a boundary beyond Oaka river inland.
In a High Court case Simbe and Mala v Harrison and Madada, and Eagon Resources Development Company (SI) Ltd[1], reference was made to the Chiefs determination that the land between Kozo stream and Lalaguti stream comprised of Volekana 1 and Nola land areas. In the same case the court refer to Volekana version that block 3 is Vure land or Volekana 1 and 2. So from Timber Rights Hearing in 1995 to Senga Council of Chiefs determination in 1999, Volekana 1 and 2 lands were diminished drastically in size, and also located in a different area of land altogether, see map Exhibit RV7 attached to Claimants affidavit filed on 10th December 2007.
The current picture now is that Volekana 1 as claimed by Claimant in 1995, is part of Sukuvai land which was owned by the Sukvai tribe, determined by the Ririo House of Chiefs on 10th September 2005, see Exhibit DG7 annexed to Galo’s affidavit. And Volekana 2 now appears to be Ngatakobe land owned by the Defendant as decided by the Varisi House of Chiefs on 21st and 22nd August 2007, which is now the subject of this application, see Map Exhibit DG 9 coloured green, and attached to Galo’s sworn statement filed on 5th September 2008.
The Facts
On or about 24th July 2007, the Claimant was served with a notice of hearing, Exhibit "RV4", from the Secretary to the Varisi House of Chiefs for a hearing in respect of Volekana 1 and 2 lands, Sukuvai land and Zizima land. The parties are the current Claimant and Defendant in this court, and other parties as well, as Defendants.
On 26th July 2007, G. Suri Solicitor for the Claimant wrote a letter to the Secretary to Varisi House of Chiefs seeking clarification of the dispute. No respond was made, See Exhibit "RV5" attached to the Claimant’s affidavit filed on 10th December 2007.
On 7th August 2007 the Claimant raised similar and additional objections to the Chairman of Varisi House of Chiefs. These objections are:-
On 12th August another letter was written by the Claimant reiterated the same objections, see Exhibit RV9, attached to Claimant’s affidavit filed on as above.
Despite those letters of objection the Varisi House of Chiefs proceeded on 13th August 2007 to hear the customary land dispute. At the hearing the Claimant orally raised his objections and reiterated the need to adjourn the hearing. About mid-day he was told by the Secretary outside of the market place that the Varisi Chiefs decided to proceed despite his objections. Upon hearing that, the Claimant then left for his home.
The Chiefs proceeded one sided, hearing evidence on the Second Defendant’s side without the Claimant. On 21st and 22nd August 2007, the Varisi House of Chiefs delivered a determination that the Ngatakobo customary land was owned by Ngatakobo tribe represented by the Second Defendant.
The issues
Issues of Custom
The parties have raised various issues of custom in their sworn statements. Those issues related to ownership of customary land. I am mindful that customary issues are matters for the appropriate forum to consider such as Chiefs, Local Court and Customary Land Appeal Court. This Court lacks jurisdiction to deal with customary matters or even to consider them, in particular, when they relate to ownership of customary land. I agree with Mr. Tegavota that the principle has been laid down in Simbe’s case and applied in Harold v Letipiko Balesi and Others,[2] quote;
It follows there that on the authority of Gandly Simbe v East Choisuel Area Council, Eagon Resources Development Company Ltd, Stephen Taki and Peter Madada, the High would have no jurisdiction to deal with the issues of custom.
Powers of the Court
The powers of the court in application for judicial review, is to consider the issues of law based on the facts presented. In this case, this court has to consider and determine whether the Chiefs had complied with Sections 11 and 12 of the Local Court Act.
Breaches of Section 11 of Local Court Act – Chiefs within the locality
Rules 15.3.2 and 15.3.4 provides that a claim for judicial review must be commenced in the High Court. This can be seen as a judicial control of public decision-making institution like the House of Chiefs. It is a form of accountability to which the decision of the Chiefs is subject to. And to ensure the Chiefs function within the bounds of the Local Court Act which delegate this special function to them to deal with customary land disputes.
Mr. Waleanisia may be right, but not absolute, that there is no specific law defining the powers and the functions of the Chiefs. In fact the Local Court Act has provided some guidelines and powers to the Chiefs in dealing with customary land disputes. The intention of the Parliament that the Chiefs are to apply traditional means of solving customary land disputes rather than statutory powers and procedural requirements, which to them is foreign, new, and may not be easy to understand. But to see them function informally applying traditional norms in solving land disputes, at the same time recognize by the law.
S.12[1] Local Court Act
Notwithstanding anything contain 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 to have been exhausted; and
(c) no discussion wholly acceptable to both parties has been made by the Chiefs in connection with the dispute.
And Section 11 define "Chiefs" means 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.
Let me first deal with Section 11 of LCA, which require Chiefs living within the locality of the land. The Defendant conceded that the Varisi Chief is not residing within the locality of Ngatakobo land. However, despite letters objecting Varisi Chiefs not to preside, see Exhibit RV5 and RV9, and oral objection by the Claimant on the start of the hearing, the Varisi Chiefs proceeded and heard the dispute and made a determination.
The Defendant’s argument is that the Varisi Chiefs proceeded because one Peterson Peter, a Member of Volekana tribe, as the Claimant Confirm at paragraph 2 of his sworn statement that the Kirugela Chiefs have interests within the subject land. He also confirmed that he agreed with the Varisi Council of Chiefs to hear the dispute, and accepted the decision as correct.
Rence Dako in his sworn statement confirmed Patterson Peter attended the hearing on behalf of Volekana tribe. He also confirmed that he received a letter from land Convenor at Kirugela region that Kirugela Chiefs had interest in Ngatakobo land dispute, Exhibit RD1 attached to his affidavit filed on 5th September 2008. He also confirmed that the Claimant walked out of the hearing on the second day but Peter remain and agreed for the hearing to proceed.
Mr. Tegavota’s point of argument is that Peter accepted Varisi House of Chiefs to hear the dispute, therefore no breach of Section 11. Secondly that Kirugela Chiefs had interest in Ngatakobo land dispute. So any decision they made will be seen as bias. To preserve the principle of natural justice, the Varisi House of Chiefs which is neutral should hear and determine the dispute. He refer to the case of Felix and Siwaahu v. Koritalaumeimei and Alick Michael[3], I will deal with this case later when I deal with the issue of bias.
However the argument advanced by Mr. Waleanisia that the Chiefs empowered to undertake this function must to do so according to law that empower them. A decision made beyond their scope of power ultra vires that power. He refers to the case of Judicial Application by Andre Psai[4], where the court stated;
"...in bad faith; a mistake in construction of limit of power, a procedural irregularity for example, breach of natural justice or unreasonableness in the Wednesbury sense...".
Further Sheehan J continued;
"In undertaking its review the court itself cannot exercise discretion even if it were to disagree with the determination made. It cannot act as a Court of Appeal. It cannot substitute its own view of what penalty should be imposed. All it can do in review is to determine whether the Leadership Tribunal exercise its discretion lawfully and in accordance with the powers given to it by the organic law".
This brings us to a significant question to ask, is the statutory provision, S.11 of LCA, directory or mandatory? If mandatory it must be a strict compliance provision, if it is directory then it will depend on whoever interprets that section.
In my view S. 11 of Local Court Act is mandatory. It must be strictly complied with. In the case of Reresare Development Limited v. Dive[5], Brown, J. on paragraph 7 said;
While Reresare is in North Vella La Vella, South Vella La Vella Council of Chiefs seemed to have presumed jurisdiction. Whilst I do not need to make findings in relation to the propriety of this, the Local Courts Act suggests that this course of action is not available. {See S. 11 of Local Court Act]".
The court concluded that only the Chiefs Council resided within the locality where the land is situated can hear and determine the issue of land ownership within its jurisdiction. The above decision was adopted in the case of Lagobe and Tozaka v Premier of Western Province and Others[6].
Exhibit RV8 attached to Claimant’s affidavit filed on 10th December 2007 that the land in issue is within Avoso traditional territory which is totally outside of Varisi House of Chief’s territory. There is no dispute that the Varisi House of Chiefs do not reside within the Avoso territory.
Here we see the prime function of the courts is to enforce, and to preserve the force of law. Rule of law is the bedrock justification for judicial review, which has a function to ensure that public functionaries as the Council of Chiefs comply with the law.
Has Varisi House of Chiefs breached S 12[1] [a] of the Local Court Act?
It would have meant differently, if the parties agreed because the Kirugela Chiefs had an interest in the land, and prefer to have Council of Chiefs from the nearby Ward, or Area, or a different House of Chiefs altogether. That would be an appreciative arrangement, at least both parties have agreed for the Chiefs residing outside of the locality to hear and determine the issue of landownership.
Section 12 (1) (a) of Local Court Act prescribe parties have to refer the dispute to the Chiefs. "Parties" is a word used in plural. It means there has to be consensus by both parties before the dispute is referred to the Chiefs, and which House of Chief to arbitrate. There has to be consensus that both parties to meet the cost of the sitting.
Today, lodgement of land dispute with Council or House of Chiefs is no longer practically the same as intended to be. Where a dispute concerning land ownership arise, one of the parties will proceed immediately to the Clerk or Secretary and lodged a complaint and paid all the necessary fees; almost the same as filing a Civil Case in the formal courts. In my view I would agree with Mr. Waleanisia’s submission as being the initial intention of the Local Court Amendment Act in 1985.
Noted from Exhibit RD2 attached to Rence Dako’s affidavit filed on 27th October 2008, that it was the Second Defendant that wrote a letter to the land convenor of Kirugela Ward that most of the Chiefs of Kirugela had conflict of interest in Ngatabobo land, therefore requested that another Chiefs Council will hear his land dispute. It was then the land convenor consulted land convenor of Varisi area to arrange for the Varisi House of Chiefs to convene and hear the dispute.
The failure was on the part of the land convenor of Kirugela Ward for not consulting the Claimant for his consent to the referral to another House of Chiefs. As a result the Claimant objected to Varisi House of Chiefs to preside and determine the dispute. This had been expressed by his lawyer’s letter Exhibit RV5 and his letter Exhibit RV8 and his oral submission at the commencement of Chiefs proceedings. Unfortunately the Varisi House of Chiefs rejected his objections.
For the Varisi House of Chiefs to rely on Patterson Peter’s consent giving them permission to proceed was incorrect. The letter Exhibit RD2 and Exhibit RD6 to Dako’s sworn statement clearly stated that Patterson Peter was only a party among others in Volekana 2 land, and not in three other lands comprising Ngatakobo land claim by the Second Defendant. It would not, of course, in the best interest of justice that a person who had no concern or claim in other blocks of land to give consent for the Chiefs to hear blocks of land claim by others. Consent had to be obtained from rightful representatives or spokespersons on behalf of other tribes as well. There is no evidence available before this court in regards to that.
Also noted from Exhibit RV1 attached to Claimant’s sworn statement filed on 6th November 2008, Ngatakobo tribe owned Ngatakobo land, and the names of the landowners are Alick Sogati and Patterson Peter plus four others. Whilst it appeared from the Second Defendant’s letter dated 15th May 2007 (Exhibit RD2) attached to Dako’s sworn statement, Mr. Peter was one of the Defendants in Volekana 2 land, and in Exhibit RV2 Mr. Peter is one of the landowners of Ngatakobo land with the Second Defendant and Others. How truthful is Peter’s sworn statement. Is he not a person wearing two coats?
And then Mr. Nelson Cyril, a land convenor in the Kirugela area. By his letter dated 8th June 2007, addressed to the Chairman of Varisi House of Chiefs inviting them to hear Ngatakobo land, see Exhibit RD1 attached to Dako’s sworn statement. In Dako’s letter dated 3rd October 2007 (Exhibit RV11) attached to Claimants Affidavit filed on 10th December 2007, Mr. Cyril was the spokesman with the Second Defendant during the Chiefs hearing of Ngatakobo land. I do not seem to understand what actually went on. Those involvements may of course give rise to suspicions. In my view S.12(1)(a) of LCA require consensus by parties of a land dispute before inviting a different House of Chiefs not residing within the locality to preside and determine the dispute.
Element of Bias
Mr. Tegavota raise that the determination by Varisi House of Chiefs did not amount to breach of S. 11 Local Court Act. The reason is that Kirugela Chiefs had interest in Ngatakobo land. They live in the area and there is likelihood their decision will be biased. He refers to Felix’s case above.
Mr. Waleanisia submitted that there were four House of Chiefs within the vicinity that had jurisdiction. There may be conflict of interest but the argument remains as to Chiefs within the locality. See Claimant’s sworn statement filed on 6th November 2008.
The question ought to be asked, has the parties exhausted all the jurisdiction of the four House of Chiefs in the Area? I do not think so. In Felix’s case the issue of Chiefs jurisdiction is not the point of argument. In fact the chiefs that constituted Hoasitaemane panel were Chiefs or traditional leaders residing in the locality of the land. The problem, however, was the two members of the panel had associated themselves with Omex Limited being the supporter of 2nd Defendant. The conduct of the two members of the panel had created in mind of the Plaintiff doubt about impartiality of the panel. On page 5 Kabui J quotes Lord Denning’s words in the case of Metropolitan Properties Ltd v Lannon[7];
"...Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking" "The judge was biased..."
In Felix’s case the conduct of two members prompted the mind of the Plaintiff doubt about impartiality. In this case the Defendant assumed because the Chiefs within Kirugela Area lived there and may have related to parties and had interest in the land. There is no evidence that practically supports that assumption. Mr Cyril’s involvement may have been a show case in time. However, common knowledge will reason out that people residing within one locality almost related to one another. One thing needs noting why the Local Court Act expressly stated that Chiefs within the locality should hear land disputes within their area, because they understand the customs and traditions of their locality. And they know quite well who owns which land in their area.
Having said that there is mass tendency of over looking S. 12 (1) (b) of Local Court Act. That section empowers the Chiefs to refer the matter to the Local Court having exhausted all traditional means of solving the dispute. This section provides a way out to avoid impartiality. If the Chiefs have found themselves related to parties, or having interest in the land, they could utilise the section, to avoid suspicion of likelihood of bias in their decision making. So the decision in Reresare Development Ltd case upheld the position of the law, and to confine parties to avoid window shopping for Chiefs, unless both parties agreed that Chiefs outside of their jurisdiction will hear the land dispute.
The Second Defendant in this case had done it in 1998. In fact the lands and the parties whose names appeared in the unaccepted settlement form are the same as this case. The Katazi Chiefs who heard the dispute had referred the case to Choiseul Local Court on the aground that they could not able to resolve the dispute. In an attempt to do so had exhausted all traditional means available. Meantime that case is still pending; see Exhibit RV2 attached to Claimant’s sworn statement filed on 6th November 2008. What the Second Defendant could have done is to pursue his case in the Local Court, rather than going back to another House of Chiefs; the case had reached Local Court stage and in my view should not be reversed back to the chiefs again.
However, the interest of Second Defendant as perceivable is that, he wanted an ownership title under this name for the purposes of development, and in most cases logging.
That next issue raised by the Claimant pursuant to paragraph 12(v) of his sworn statement file don 10/12/2007, was the payment of the cost of hearing by the Second Defendant. It involved sitting allowances and perhaps transport as well. The Second Defendant by paragraphs 8 and 9 of his shown statement filed on 27/10/08 admitted the payments. However, he met the costs because the Claimant did not agree to share in meeting the Chiefs expenses, see Exhibit AS2 filed on 27/10/08.
I noted from Exhibit RV4 attached to Claimant’s sworn statement filed on 10th December 2007, in which the Secretary to the Varisi House of Chiefs, Mr. Dako proposed a budget for the entire sitting. The figure he arrived at was $12,670.00, excluding transport and accommodation. He did mention that the total expenses will be met by both parties equally. And the amount should be paid to the Secretary one week before the Chiefs sat to hear the dispute
The Claimant refused to pay. His lawyer’s letter was so plain about it, because he was not consulted and not agreed that Varisi Chief should preside over the dispute.
In my view it is not a kind of bias that may have been secretly arranged in order to induce the chiefs to make a decision, so as at the end of the day, it will be label as made in bad faith. The Chief’s Secretary was open about it, that both parties to meet the Chiefs costs in terms of sitting allowance, accommodation and transport. The Claimant refused to pay and so the Defendant has to meet all the costs. I do not see any bias in that.
Secondly, the Claimant walked out of the Chiefs hearing on the second day. What would one expect if the case was heard one sided? Of course the award will be made to the party attended. Its not because of the money that the Second Defendant paid that induce the Chiefs to award ownership of the land to the him, but because the Claimant did not agree with Chiefs and refused to attend. I see there is no bias at all.
Having said all that, the crux of this case pivoted on the non compliance with the statute the Local Court Act, which gave power to the Chiefs to hear and determine customary land disputes. All other issues raised in this Court are secondary issues, and some are custom in nature which this court lacks jurisdiction entertain. The question to ask, has the Varisi House of Chiefs had jurisdiction to hear Ngatakobo land which was outside of their jurisdiction. The answer is no. The Reresare Development Ltd case made it so plain, that only the Chief residing in the locality where the land is, have jurisdiction to preside and determine the dispute, Chiefs outside of the locality this course of action is not available to them.
Existence of other cases – Breach of Section 12(1) [a] Local Court Act
A number of sworn statements were filed by the parties in respect of proving existence of other court cases. I have read those statements together with the submissions. My findings is that all the Chiefs Hearing in regards to Lands from Loanga river to Lalaguti stream, bounded by Oaka river in land, had never encroached into Ngatakobo land claim by the Second Defendant, even Sukuvai tribal land heard on 10th September 2005 had never encroached into Ngatakobo land, as well, see Exhibit DG9 attached to Galo’s sworn statement filed on 5/9/2008.
The only case which is pending in the Choiseul Local Court was the referral by the Katazi House of Chiefs which the Second Defendant must have filed it in respect of Ngatakobo land, see Exhibit RV2 attached to sworn statement of Claimant filed on 7/11/08. I did mention above that the Ngatakobo land had reached Local Court stage and the Second Defendant should pursue that.
ORDERS OF THE COURT:
THE COURT
[1] [2004] HC-CC-205 of 2004
[2] Civil Appeal Case No. 8 of 1997
[3] (2001) HC-CC 1 of 2001.
[4] [1995] PNGLR 350 of page 4.
[5] (2007) SBHC 104 – HCSI-CC 264 of 2007.
[6] (2008) HC-CC No. 62 of 2008.
[7] [1968] 3AER 307.
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