Criswell v Malaii [2009] SBHC 5; HCSI-CC 257 of 2008 (25 February 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 257 of 2008

BETWEEN:

JOHN CRISWELL
Claimant

AND:

JONATHAN MALAII
1st Defendant

AND:

ATTORNEY-GENERAL
2nd Defendant

Date of Hearing: 24 February 2009
Date of Decision: 25 February 2009

Mr Hapa for First Defendant
Ms Folaumoetui for Second Defendant
Mr M Tagini for Claimant

DECISION ON APPLICATION TO
STRIKE OUT AMENDED CLAIM

Cameron PJ.

1. The Claimant seeks declarations from this Court to the effect that his Bitakaula tribe was the owner and subsequently the rightful seller of land known as Auki Town Land. This assertion of ownership is disputed by the first defendant, representing the Sasadili tribe. It is common ground that prior to sale, the land was customary land. The purpose of the claim is to put the Claimant in a position where his tribe can deal with the Malaita Provincial Government over issues concerning the current use of that land.

2. Mr. M Tagini for the Claimant concedes that to determine these questions, custom evidence will be necessary in an attempt to establish the genealogy of the recorded seller.

3. The declarations sought are not to clarify matters of interpretation in the original sale documents. They are to determine who were the original owners of the land now owned by the Malaita Provincial Government, and are a thin guise for what is in reality a customary land issue.

4. It is well established that by virtue of the Local Courts Act and the Land and Titles Act this Court does not have jurisdiction to determine rightful ownership of customary land.

5. The amended claim is dismissed on the grounds of lack of jurisdiction. Costs of $1,000.00 to the first defendant and $350.00 to the second defendant are awarded.

BY THE COURT