Daudau v Tabusu [2012] SBHC 169; HCSI-CC 87 of 2012 (12 December 2012)

HIGH COUR OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 87 of 2012

BETWEEN:

MICHAEL DAUDAU
(Representing Ubere-Saua Tribe)
Claimant

AND:

HENRY TABUSU AND BARTHOLOMEW
NATI
(Representing the Bubuni Tribe)
Defendants

Date of Ruling: 12 December 2012

Mr. Kaboke for the Claimant
Mr. Fakarii for the Defendants

RULING

Mwanesalua J

1. This is an application filed on 3 April 2012 by the Claimant for the following orders: (1) An interim order that the Defendants themselves, their servants and agents, be restrained from entering, clearing and felling trees, including coconut trees, conducting reclamation works on the sea front, constructing semi-permanent houses, construction of a vocational training school on the claimant's Harifafa customary land situated at Mana'abu, North Malaita, Malaita Province; (2) An interim order restraining the Defendants not to enter into agreement with the Malaita Development Authority and the Israeli Consular Office in Solomon Islands for any proposed development on Harifafa Customary land; (3) The Defendants without delay remove their security personnel's stationed within Harifafa land; (4) If the interim orders sought are granted, the Claimant further sought that the interim orders be attached with Penal Notice; (5) Any orders deem necessary by the court and costs.
   
2. Brief background facts. The Morodo Council of Chiefs and the Ulufera House of Chiefs heard a dispute on the ownership and the boundaries of Oroba Customary land on 31 July 2008. The four defendants including Michael Daka were absent. Michael Daka's reason for not attending was because his brother and son had died and that he was still moaning for their death was considered to be unreasonable by the Chiefs. This is because the moaning time in Malaita merely casts 7 days. In their decision, the Chiefs found that Oroba was not a customary land but merely a settlement within Labatana Customary land; that Michael Daka invented Oroba Customary Land merely for the purpose of concealing the existence of Labatana Customary Land; that Harifafa, Suibongi-Fa'aia Tolomatonga and Labatana Customary Lands do exist; and that they are owned in custom by the Ubere-saua, Ngongora, Suibongi-Fa'aia Tolomatanga and Labatana tribes. The Defendants including Michael Daka do not own any customary lands. The Defendants were aggrieved by this decision and intended to appeal it to the Local Court. However, they say that their attempt was prevented by the Chiefs refusing to sign their prepared unaccepted settlement Form I. Further, the Defendants raised what appeared to be irregularities. They are that the secretary to the chiefs caused the Chiefs to sign blank accepted Form II forms before the chiefs' decision was made and delivered; two chiefs alleged their signatures on the decision were forgeries; and the names of two chiefs who neither participated in the hearing of the dispute nor took part in making the chiefs' decision appeared in the decision.
   
3. The case for the Claimant in this application. He says that the Defendants have trespassed on Harifafa land and carried out unlawful activities since the decision of the chiefs was made on Harifafa land. As such, he filed this application for interim restraining orders against the Defendants. Further, he says that the Defendants were barred from lodging an appeal against the decision of the chiefs when the Claimants in Civil Case 276 of 2009 in this court.
   
4. The case for the Defendants. They contend that this court should remit the issues on the ownership and the boundaries of Harifafa customary land back to the chiefs for rehearing; and that the Claimant has failed to produce relevant evidence to support the grant of the interim restraining orders sought against them.
   
5. Discussion. The Defendants were aggrieved by the decision of the chiefs. They sought to appeal the decision to the Local Court through a Form I certificate which the chiefs allegedly refused to sign. A Form I Certificate does not commence proceedings in the Local Court, in civil cases, inclusive of appeals against decisions of chiefs in customary land cases (Muna v. Hollan Billy & anor [2003]. ABHC 22; CC 284/2001, Brown J. "The mere lodgement of a Form I does not refer any dispute to the Local Court, either in form or substance " (Veno v Jino { 2006] ABCA 22; CA – CAC 002 of 2004). The Form 1 simply facilities proof that the jurisdictional facts under 5.12 paras (a) and (c) have been fulfilled. A summons is used to commence civil proceedings in the Local Court as provided for in the second schedule to the Local Courts Act (Forms Rules).
   
   • 5.1 The Claimant has advanced any argument as proved any authority in support on his assertion that the Defendants were barred from lodging an appeal against the decision of the chiefs when civil case No. 276 of 2009 was filed in this court. I say no more about it.
     
   • 5.2 In relation to first submission of the Defendants, this court does not have jurisdiction to remit the issues on the boundaries and the ownership of Harifafa in custom back to the chiefs for rehearing. Such power vests with the local court under section 13 of the Local Courts Act (Cap. 19), which states:
     

"13. When hearing and determining any dispute it has jurisdiction to hear and determine, the court may.................................

(e) refer the dispute to the chiefs with such directions as it may consider necessary".

5.3 The interim restraining orders sought in this application are based on the decision of the chiefs on 31 July 2009. There is no appeal in relation to that decision pending before the Local Court at the present time.

5.4 The Claimants have not adduced any evidence that the Malaita Provincial Government and the COM have plans to build a vocational training school on Harifafa land and the Malaita Provincial Government with the Israel Mission in this country to develop Harifafa land. There seem to be evidence of clearing and felling of trees along the shoreline. But there is insufficient evidence as to the purpose of this clearing. The order for the removal of securities from Harifafa customary land has been abandoned before the hearing of the application. Coconut trees would appear to be felled by the brother of the Claimant to build his village. The dispute between Claimant and the Defendants is still a live issue. It is up to the Defendants what they proposed to deal with the alleged irregularities referred above and the decision of the chiefs. It would be oppressive at the present time to leave their village, deter them from repairing their sea walls and repairing their present houses. What the court can do is to restrain the Defendants from carrying out any major developments on the land in dispute.

In conclusions: A summons is used to commence proceedings at the local court when appeals are made against decisions of chiefs; That jurisdiction to refer issues regarding the issues on boundaries and ownership of customary land is vested with the local court; Refuse to grant interim orders to restrain the Defendants from remaining on the land in dispute; Refuse to restrain the Defendants from repairing their houses and sea walls; Restrain the Defendants from making any major developments on the land in dispute; and costs in the cause.

THE COURT