Balesi v Aloni [2009] SBHC 40; HCSI-CC 267 of 2008 (31 July 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 267 of 2008

BETWEEN:

LETIPIKO BALESI
Applicant

AND:

JOHN ALONI
1st Respondent

AND:

MAROVO COUNCIL OF CHIEFS
2nd Respondent

Cameron J

Date of Hearing: 5 & 6 May, 1 July 2009
Date of Decision: 31 July 2009

Mr Tegavota for Applicant
Mr Apaniai for First Respondent

DECISION ON APPLICATION TO QUASH A COUNCIL OF
CHIEFS’ DECISION DATED 21 APRIL 2008

Cameron PJ:

1 The applicant Chief Letipiko Balesi from Bareho Island, Marovo Lagoon, applies by writ of certiorari to quash a decision of the Marovo Council of Chiefs (MCC) dated 21 April 2008. In that decision, this Council held that 7 blocks of land (Tabakale, Korovua, Gakelea, Valuvalu, Boku, Kanivera and Pandakainigetu) were owned by the first respondent John Aloni and his family.

2 The essence of the application to quash that decision is that at its meeting the MCC did not make any determination of its own as to ownership of the individual blocks claimed by John Aloni. Rather, the MCC was simply content to confirm that John Aloni owned the blocks as that accorded with the outcome of a meeting of local leaders held on 15 October 2007. It is asserted that Chief Letipiko was not given a proper opportunity to be present or be represented at the 21 April 2008 MCC hearing, and that the resulting one-sided nature of it meant that the MCC was not seized of a "dispute" for determination as contemplated under the Local Courts Act.

3 Briefly, the facts are that logging on some or all of the blocks took place in 2005, without the consent of John Aloni or his family. Furthermore, attempts to obtain royalties from the loggers proved futile.

4 In 2008, under CC: 241 of 2008, John Aloni commenced a civil action in this Court against the loggers for trespass. Because it was necessary for him to establish customary ownership of the blocks in order to establish his claim for trespass, John Aloni decided to obtain a Council of Chiefs’ decision to that effect.

5 He started by arranging the chiefs of his own local tribe to convene on 15 October 2007 to confirm his ownership of the blocks. Having obtained that confirmation in writing in the form of both minutes and a report of the meeting from a police officer who was present, he then referred the matter to the MCC. He did this by letter of 22 January 2008, and enclosed those minutes and the police officer’s account as to what had occurred (together with certain other documentation). This resulted in a meeting of the MCC on 21 April 2008 and a decision on the same day confirming John Aloni’s ownership of the blocks.

6 As stated, it was John Aloni who referred the matter to the MCC by way of a letter which named he and his father as plaintiffs and Letipiko Balesi, John Balesi and Rosta Edwin (all siblings) as defendants. However, at the hearing on 21 April 2008 only Rosta Edwin, the sister of Letipiko and John Balesi, attended the meeting.

7 The reason Letipiko Balesi did not attend was that at that time he was a prisoner at Rove prison, Honiara, having commenced a term of imprisonment in the latter part of 2005. As to John Balesi, he was informed of the intended MCC meeting by John Aloni on the same day that it was held, and chose not to attend.

8 Following the MCC meeting on 21 April 2008, an ‘accepted settlement’ form was typed and signed by the chiefs. It contains a record of what occurred at the meeting. There is no record at all of Rosta Edwin having been consulted as to her views on the ownership of the land. To the extent that the secretary, John Maekera, suggested otherwise when giving evidence in answer to leading questions, I prefer the evidence of Rosta Edwin. Her evidence was that she said nothing at that meeting, which evidence I accept. I find that she did sign the ‘accepted settlement’ form underneath the typed heading of ‘Declaration of Acceptance’ and underneath the words:

"I, Roster Eddie, accept the decision made by chiefs in connection with this dispute and I hereby undertake to abide by it".

9 As to this, her evidence was somewhat confusing. However, I find that it was John Aloni who took the document to her for signature, and that he did not read the document to her or explain it prior to her signing (which facts were accepted by John Aloni in his evidence). Further, I accept that she is unable to read English, which was the language contained in the document. I accept her evidence that she did not appreciate that by signing the document she was acknowledging that she accepted the MCC decision.

10 It was asserted by John Aloni that Rosta Edwin attended the meeting on behalf of her brothers, Letipiko Balesi and John Balesi. However, on the evidence I am satisfied that Rosta Edwin attended only in her own right and had no authority from either Letipiko or John Balesi to act on their behalf, and did not in fact do so. As stated, Letipiko Balesi was in prison at that time, and there is no evidence that he even knew of the hearing, much less was given an opportunity of making representations on the merits of the claim. In this respect it is noted that one of the documents which the MCC placed weight upon was a letter dated 19 December 2005 purporting to bear his signature, a letter in respect of which Letipiko Balesi maintains his signature was forged. He had no opportunity to bring this to the MCC’s attention. When the MCC subsequently became aware of Letipiko Balesi’s assertions, the secretary of the MCC, John Maekera, in a sworn statement dated 7 October 2008 called for this Court to quash the MCC decision based on these assertions. This demonstrates the difficulties which can occur when a decision maker does not give a party an opportunity to respond to claims contrary to their interests prior to reaching a decision.

11 As to John Balesi, I accept his evidence that he did not attend the MCC meeting because he had nothing to say about land matters, as that was a matter for his older brother, Chief Letipiko. As John Balesi put it in his evidence:

"I really don’t have any right or position to talk about lands in dispute, matter for Chief Letipiko Balesi".

12 In effect, then, the MCC meeting was a one-sided affair, with the only representative of the Balesi family present, Rosta Edwin, not being consulted by the MCC chiefs as to who she represented or as to her contentions in respect of ownership of the land. The result was a rubber stamping of the agreement the local chiefs had come to in the previous meeting of 15 October 2007. Even before the hearing of the MCC on 21 April 2008, the secretary of the MCC foreshadowed in a letter to John Aloni dated 16 April 2008 that the MCC meeting would be a formality only. I refer to the foot of that letter containing the notation:

"PS: All you need now is the endorsement from the Council of Chiefs".

13 This lack of intent to investigate the issues to ownership is confirmed in the sworn statement of the Chairman of the MCC at that time, Chief Jonathan Kekevu. An extract from para 3 states:

"We did not conduct any disputed hearing. The Council did not make any determination as to who owns the individual land blocks claimed by the first respondent. All that the Council did was just to endorse the agreement on the ownership of the various land blocks already agreed upon by the first respondent’s group themselves during their previous meetings".

14. Consistent with that, in his evidence in Court, in referring to John Aloni and family, Chief Kekevu stated:

"this is their meeting, we are only there to give our aura to that meeting by our attendance".

I accept that this is what Chief Kekevu perceived the role of the MCC to be at that time.

15 The result is that the MCC did not look beyond the agreement by the local chiefs achieved at the 15 October 2007 meeting, and merely accepted that decision without question. This is apparent from the following extract from the ‘accepted settlement’ form signed by the MCC:

"The MCC did accept the minute of their meeting and will endorse it as their document of their resolution to identify the true land owners of the above said lands. The MCC highly congratulate them for solving land problem ‘in traditional means’."

16 Of course an essential difficulty with adopting that approach was the lack of opportunity given to the Balesi family to be properly represented at that hearing, as I have stated. Because of that lack of representation, the material put before the MCC supporting John Aloni’s claim was taken to be uncontentious, and adopted at face value.

17 I have not overlooked that in the minutes relied on by the MCC, Rosta Edwin is recorded as having told the previous meeting of 15 October 2007 that "these areas were known that is yours". That was taken by John Aloni as an acknowledgment by her of John Aloni and family’s ownership of the 7 blocks. In my view, if this statement was made then it is unclear as to precisely which blocks Rosta Edwin was referring to. In any event, I also find that Rosta Edwin, at the meeting on 15 October 2007, did not have the necessary authority from Chief Letipiko Balesi or John Balesi to speak on their behalf.

18 For these reasons, it is an appropriate case for the exercise of my discretion to quash the decision of the MCC.

19 The result is that the decision of the Marovo Council of Chiefs dated 21 April 2008 is quashed. The parties are at liberty to apply for any consequential directions should that be considered necessary.

20 The applicant is entitled to costs and disbursements against the first respondent on a standard basis (Rule 24.8 SI Courts (Civil Procedure) Rules 2007). I make no order as to costs against the second respondent.

BY THE COURT