Daveta v Kotomae [2010] SBHC 13; HCSI-CC 288 of 2009 (15 April 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 288 of 2009

BETWEEN

EZEKIEL DAVETA & NASON BEIKERA
(Representing Degere Tribe)
Claimants

AND

EDDISON KOTOMAE & SAM CHRISTOPHER
(Representing Gadora landowners)
First Defendants

AND

JOHN PAVUKERA
(Representing Vitu landowners)
Second Defendant

AND

DEMARK SIMI, PALOLO SEKENI, JOHN LAMU
LIKE IRAPIO & BILLY MAENA
(Representing Kubokota Chiefs Committee)
Third Defendant

Mr Tegavota for Claimants
Mr Ashley for 1st & 2nd Defendants
No appearance for 3rd Defendants

Date of Hearing: 12th April 2010
Date of Judgment: 15th April 2010

Ruling

1. This is a hearing which has arisen because of the operation of Rules 15. 3.16 and 15.3.18[1] . The claim is for a quashing order and to be able to proceed the Claimant must show (under Rule 15.3.18):-
   

(a) an arguable case, and

(b) that he is directly affected, and

(c) there has been no undue delay, and

(d) there is no other remedy that resolves the matter fully and directly

2. I would mention at this point Rule 15.3.18 is inclusive and cumulative in that it says the case must be arguable and one which directly affects the claimant who must also show he has not unduly delayed in bringing the case and that he has no other remedy available. If the Claimant fails to satisfy the court on any of those 4 points it must decline to hear the claim and strike it out[2]. The Claimants concentrated on the requirement of an arguable case but they did touch on the other requirements of Rule 15.3.18.
   
3. The facts are relatively straightforward. The Claimants are involved in another case, Civil Case 297 of 2008. In that case the Claimants are Second and Third Defendants, the First Defendants are the Second Claimants and the Second Defendants are Fourth Claimants. The Third Defendants do not figure as parties in civil case 297 of 2008 and there are other parties in 297 of 2008 who do not appear as parties in this case. The claim in 297 of 2008 relates to logging operations on Ranongga Island and a felling licence No. A10763. The Claimants in the case are asking for orders declaring the licence void and for injunctive and other relief. The facts relied on are, in essence, that the licence was issued in breach of the provisions of the Forest Resources and Timber Utilisation Act [3]. It would appear the Claimants in 297 of 2008 have gone to the Chiefs (the Third Defendants in this case) and the Chiefs have made a finding as to the ownership of Customary Land on Ranongga Island. It is against that finding the Claimants in this case are asking for a Quashing Order.
   
4. Turning now to Rule 15.3.18 (a) to (d), the only thing I can be certain of is the Claimants are directly affected by the decision of the Chiefs which is the subject matter of these proceedings. In other words, The Claimants satisfy Rule 15.3.18 (b).
   
5. As to 15.3.18 (a), the Claimants say they have an arguable case. That assertion is based on two main points. First, there was no agreement between the parties as to which Chiefs should hear the "dispute" and secondly the Chiefs made a decision in the absence of the Claimant.
   
6. Looking at the first point, I accept the tenor of ss 11 and 12 of the Local Courts Act seem to indicate that, "....the jurisdiction of Chiefs or traditional leaders is conferred by mutual agreement and understanding by custom in the locality in which such Chiefs or traditional leaders are residing" per Kabui J[4]. As he went on to say there is a definition in s11 itself. Chiefs are,"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". What s11 does not say is they are Chiefs or traditional leaders chosen as such by both parties. There is a vast difference. In the Siwa’ahu case referred to above the point in issue was one party asked Chiefs from the Hutohuto Panel to be involved in the dispute whereas the land itself was within the area where members of the Hoasitaemane Panel resided. The other party did not like the choice of Hutohuto Chiefs and asked yet other Chiefs from outside the area or locality to hear the case, those from the Korutalaumeimei Panel. As Kabui J found, there was no agreement between the parties that Korutalaumeimei Chiefs resided within the locality and, "....the practice that one Chiefs Panel of another locality is invited to determine a dispute in another locality is not based on sections 11 and 12 of the Local Courts Act but upon the general principles of natural justice ...".
   
7. In this case there is no suggestion by the Claimant that the Third Defendants are not Chiefs or traditional leaders residing in the locality and there is no suggestion that the Claimants did not recognise the Third Defendants as such. What the Claimants are unhappy about is that they were not consulted as to who should sit. The First and Second Defendants say[5] the Kubokota Chiefs Committee was the only functioning Chiefs’ Committee on Ranongga Island at the time. There is no evidence one way or another the First and Second Defendants chose the individual members from the Kubokota Chiefs Committee. This is not a situation as in the Siwa’ahu case where outside Chiefs were bussed in to hold the hearing. A similar situation to Siwa’ahu appears in the Vaekesa and Sogati case[6]. Faukona J makes the point (at page 5), "The Defendant conceded that the Varasi Chiefs are not residing within the locality of Ngatakobo land."
   
8. I am not convinced by the argument that the Local Courts Act requires both parties to actually choose who sits to hear the dispute. The Act requires the parties to the dispute to recognise the Chiefs who are to hear the dispute as being from the locality and accept them as being Chiefs or traditional leaders from the locality.
   
9. In any event, whilst the Claimant says as a question of law the court will be asked, "Whether the decision of the Third Defendants who were only selected by the First and Second Defendants was biased against the Claimant", there is no indication of how this bias arose. The only thing the Claimant says is that as they were only selected by the First and Second Defendants, the Chiefs must have been biased. As there is no evidence either way that the First and Second Defendants individually selected the Chiefs, merely that they asked the Kubokota Chiefs Committee to hear the dispute, this argument has difficulty getting off the ground in the first place. In addition, there is an absence of any real evidence of bias or reasons for alleging bias. It is not said, for example, the Chiefs were closely related or associated with the First and Second Defendants. It is not said the Chiefs had any business or commercial ties with First and Second Defendants. All the court is left with is the bare assertion that as they were selected by the First and Second Defendants, the Chiefs must have been biased. That is not sufficient.
   
10. The second point argued is that the decision was made in the absence of both Claimants. The law on the effect of the absence by one or other of the parties in a case is pretty well settled both in this jurisdiction and others. However, I do not think I need to consider the well settled body of law because I am not satisfied the reason put forward by the second named Claimant (Nason Beikira) is correct. If you look at the detail of the minutes of the Chiefs’[7], and this evidence was not disputed before me, the Claimants are recorded as having other reasons for not attending. If the Claimants deliberately chose to absent themselves from the Chiefs meeting it is difficult to see how they can now say that they were disadvantaged.
    
11. As to delay (Rule 15.3.18 (c)), it could be argued the Claimants only recently became aware of the Chiefs’ decision but from what is said above it is an extremely tenuous argument. From the minutes of the Chiefs meetings I believe they were well aware of the meeting and could have easily discovered what went on. There is no suggestion that the decision was suppressed in any way. The Claimants, I am sure, were aware of the Chiefs hearing and any prudent person would have made enquiries as to what went on.
    
12. Having said all that, the main point to be considered in this particular case is the criteria set out in Rule 15.3.18 (d). The court has to be satisfied there is no other remedy that resolves the matter fully and directly. I am not entirely sure what the word "directly" adds to the criteria, possibly, that the remedy for resolving the matter must be accessible to the parties rather than accessible to them through some other circuitous route, such as via third parties. Is that the situation here? Does the Claimant have direct access to a way of resolving this matter fully? The answer to both questions is an emphatic yes. The Claimant, both or either of them, can go to the Local Court and ask that tribunal to hear the dispute. The Claimant can go to the Local Court and say the decision made by the Kubokota Chiefs is not wholly acceptable. They would then be able to commence proceedings to ask the Local Court to decide the dispute involving ownership of customary land. That is the effect of S 12 of the Local Courts Act.
    
13. I would go further and say I would find it difficult to contemplate a situation where any court could or should become involved (at the behest of anyone involved in a dispute about customary land before the Chiefs) in the judicial review of proceedings before the Chiefs unless the decision made by the Chiefs has been recorded in the Local Court (see the provisions of s. 14 of the Local Courts Act) or the proceedings before the Chiefs have come about following a direction by the Local Court (See s. 13 (e) of the Local Courts Act) or some other Court. Until such times the parties in a dispute involving customary land can, if the decision of the Chiefs’ is not wholly acceptable to them, refer the dispute to the Local Court. Until such times, there will always be another remedy available to any of the parties "that resolves the matter fully and directly".
    
14. It does not matter, as appears to be the situation here, that the reason for going to the Chiefs or disagreeing with their decision in the first place is for evidential purposes in another High Court case. If that is the only reason why the dispute went to the Chiefs another remedy available to the parties is to call the Chiefs as witnesses in the High Court case. If the Local Court can call "one or more of the chiefs who took part in making the decision[8]" then the High Court can also hear from the Chiefs.
    
15. In all the circumstances I have to say I am not satisfied the named Claimants have:-
    

(a) an arguable case, and or

(b) not been guilty of delay and or

(c) no other remedy available to them, either individually or jointly, which would fully and directly resolve the matter.

16. I therefore have no option but to refuse to hear the claim and to strike it out. That is the order I make. I also order the costs of the Defendants in these proceedings to be paid by the Claimant.
    

Chetwynd J

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Rule Solomon Islands Courts (Civil Procedure) Rules 2007 Rule 15.3.20
^[3] See the Amended Claim filed on 5^th August 2009 in Civil Case 297 of 2008
^[4] Siwa’ahu v Maehu Civil Case No. 1 of 2001
^[5] Paragraph 3 of the defence filed 6^th November 2010
^[6] Robert Vaekesa v Varisi House of Chiefs and Alick Sogati Civil Case No. 465 of 2007
^[7] See exhibits to the Sworn Statement of Alpheus Zobule filed in Civil Case 297 of 2008
^[8] S 13 (c) Local Court Act