Morikana v Daka [2011] SBHC 36; HCSI-CC 57 of 2011 (26 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 276 of 2009

BETWEEN

JOHN MORIKANA Jnr
(Rep Fa'aia Totomatan Tribe)
First Claimant

And

MICHAEL DAUDAU
(Rep Ubere-Saua Tribe)
Second Claimant

And

JACOB OKAI
(Rep Ngongora Tribe)
Third Claimant Defendants

And

MICHAEL DAKA
(Rep O'oraba Tribe)
First Defendant

And

SAMO ONEONE and OTHERS
(Rep Bubuni Tribe)
Second Defendants

Mr Pitakaka for the Claimants
Mr Fakarii fo all the Defendants

Date of Hearing: 20th May 2011
Date of Judgment: 26th May 2011

RULING

1. I dealt with two applications today. One was from the Claimants. I will deal with that first. When this case first came before me, I believe that was in February this year, I asked the First Defendant ("Mr Daka") if he was the Michael Daka who had sat on the Malaita Customary Land Appeal Court. He confirmed he was. I then informed the parties in court I had worked with Mr Daka as Clerk to the Malaita Customary Appeal Court. At a hearing on 31st March Mr Pitakaka raised the issue and asked if I was willing to continue sitting as he thought I had indicated I was "uncomfortable" in hearing the matter. I relied that I was not uncomfortable but I had mentioned it because I thought that all concerned should know. I said if anyone else was "uncomfortable" with my hearing the case they should raise it now. Mr Pitakaka has now raised it. He raised it with the Registrar by Email on 12th April.

2. I was Principle Magistrate Malaita from 1989 to 1991. Part of my work was to sit as Clerk to the Customary Land Appeal Court. I knew Mr Daka as a member of that court. I did not know him in any other capacity. I cannot now recollect how many cases there were on when I acted as Clerk and Mr Daka sat as a member. I do not believe my working relationship can be seen as anything but that. I have been involved in other cases where one of the parties had been or was a Local Court member and I seem to remember hearing a case where one of the parties was or had been a CLAC member. I cannot recollect the details though. I do not believe the fact that I worked with Mr Daka as the Clerk to a Customary Land Appeal Court some 20 years ago would lead ordinary right thinking persons to believe I as biased in his favour. I do believe it was right though that I let it be known I had worked with him. I decline the suggestion I should not sit and hear any part of this case.

3. The second application was by the Defendants. They asked me to strike out the claim on the basis it disclosed no reasonable cause of action. The sworn statements of Henry Daudau dated 7th and 8th April 2011 were read, as were a sworn statement by the First Defendant filed 11th March 2011 and one by Henry Tabusu filed the same day. Of course, the Claim was read.

4. The main ground of the application was the boundaries of the customary land over which the claimants say the defendants trespassed, was not set out in the pleadings. I was referred to a great deal of case law and documentation. My instinct was to give a decision at the completion of argument but I thought that I should do justice to the detailed submissions by Mr Fakarii and the extensive case law and documentation produced. However, on perusal of all that has been put before me the decision is relatively straight forward. This is not a case suitable to be struck out. Whilst I accept the lack of detailed descriptions of the lands involved is inconvenient it does not stop the defendants from putting forward a defence. In any event, it is clear from Mr Daka and Mr Tabusu's sworn statements they know what land is being claimed. If there were any further doubt, maps have been submitted and are available for the defendants [1] to check.

5. I do not think the claimants even need to amend the claim. This is not a case where a party is saying you have trespassed over my land but I am not going to tell you where it is. The land over which ownership is being claimed is obvious.

6. On perusal of the papers I did come across one document that caused me concern. It too is exhibited to Mr Daudau's sworn statement. It is the letter from Bridge Lawyers dated 20th March 2008 (MDD2). That letter is a gross distortion of Palmer J's (as he was then) judgment. The High Court did not say in Civil case No.1 of 1993 that it was still open for the Chiefs and Local Court to hear and determine the issues of ownership. What his Lordship actually said, and I paraphrase, was the case before him involved contempt. The burden of proof was firmly on the applicant (Mr Daka) and the standard of proof was the same as that required in criminal cases, namely proof beyond reasonable doubt. He held that Mr Daka had not discharged that burden. He said, "It is important to point out here that where questions of genealogy are involved, and questions pertaining to whether certain persons are members of the same tribe or the same party as in a previous case, then the appropriate forum for the determination of those issues is before the Local Court, not here, unless there is sufficient material before this Court to enable it to make a satisfactory ruling on those issues. The reason is that these issues more frequently involve customary evidence of which the Local Court Justices would be in a better position to deal with, with their local knowledge in genealogy and custom." He went on to say, "This case has been brought on a claim for contempt and yet there are preliminary issues pertaining to the genealogy and membership of a tribe or line, which have not yet been determined. On this basis customary evidence would have to be introduced before this court." His Lordship did not mention one word about referring the question of ownership to the appropriate Customary Forum.

7. I would also point out in this case considerable evidence has already been introduced which deals with questions on customary land ownership in the form of Local Court and Customary Land Appeal Court decisions. Some of those decisions deal with genealogies and the origins of some of the parties. The parties should be aware of the dangers of saying things in sworn statements or on oath in this case which directly contradict sworn evidence in previous cases.

8. I refuse the application to strike out. Costs of the application are reserved.

Chetwynd J

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^[1] See exhibit MDD 1 to the sworn statement of Michael Daudau filed 7^th April 2011