Beti v Kama [2014] SBHC 26; HCSI-CC 429 of 2012 (11 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Between:

PHALETAU BETI
1st Claimant

And:

JOHN WESLEY TALASASA
2nd Claimant

And:

HENRY HIDI KAMA, JOHN PITU, BEN RAQO, JOHN HOMELO & ESAU UVELAMANA (Purported Roviana Panel of Chiefs)
1st Defendants

And:

ANGELINA YAHATA (representing herself & her siblings)
2nd Defendant

For the 1st & 2nd Claimants: M. Tongarutu.
For the 2nd Defendant: D. Marahare.
No appearance by the 1st Defendants.
Date of hearing: 24 March 2014
Date of Judgment: 11 April 2014

RULING

Apaniai, PJ:

Introduction.

1. This is the ruling on the issue whether or not Rule 15.3.18(d) of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") has been satisfied in relation to this claim.
   
2. The issue arose at a conference under Rule 15.3.16 ("Chapter 15 Conference") during which Mr. Marahare, of counsel for the 2nd defendant, submits that the claim should be dismissed because the claimants have failed to show that they had no other remedy to resolve the matter fully. He submits that an appeal to the local court is still available to the claimants under the Local Court Act (Cap. 19) should they not be satisfied with the chiefs' decision. He urged the court to dismiss the claim.
   
3. Mr. Tongarutu disagrees with Mr. Marahare. Mr. Tongarutu submits that the issues raised in the judicial review claim are issues of law which the local court has no jurisdiction to decide. He further submits that fraud has been alleged against the 2nd defendant and that if fraud is proved, it would unravel the decision of the Roviana Panel of Chiefs. He submits that the proper forum to determine the issue of fraud is the High Court, hence, the judicial review claim was properly brought.
   
4. Rule 15.3.16 requires that, as soon as practicable after the defence has been filed and served, the court must call a conference. At this conference the court is required under Rule 15.3.18 to be satisfied as to four matters before it can hear the claim. These are that the claimant has an arguable case; the claimant is directly affected by the subject matter of the claim; there has been no undue delay in making the claim; and, there is no other remedy that resolves the matter fully and directly.
   
5. It is accepted by the parties that the claimants have an arguable case and that they are directly affected by the subject matter of the claim. It is also accepted that there has been no undue delay in making the claim. The only issue is whether there is no other remedy that resolves the matter fully and directly as required under Rule 15.3.18(d).
   
6. The claimants have filed a Category C claim on 21 December 2012 seeking judicial review (under Rule 15.3 of the Rules) of a decision by the Roviana Panel of Chiefs ("Chiefs") dated 6 September 2012 whereby the ownership of Kidakale land was awarded to the 2nd defendant.
   
7. In that claim, the claimants allege bias and ignorance on the part of the presiding chiefs and Elders who made the decision. They also allege fraud on the part of the 2nd defendant. They further allege that the Chiefs had no jurisdiction to hear the dispute and that the Chiefs' hearing was not in accordance with the Local Court Amendment Act 1985. Other allegations were also made which I think are not necessary to list down.
   
8. One thing is clear from these allegations, that is, the Chiefs' decision was not acceptable to the claimants. The question therefore is whether or not there is another remedy available to the claimants apart from seeking remedies by way of judicial review of the Chiefs' decision.
   
9. It seems to me clear that since the substance of the claim seeks to challenge the decision of the Chiefs in relation to the issue of the ownership of Kidakale land, taking the issue further to the local court pursuant to the provisions of the Local Court Act is an option that is still available to the claimants. The reasons are as follows.
   
10. Section 254 of the Land & Titles Act (Cap. 133) gives the local court jurisdiction to hear disputes relating to customary land. The exercise of that jurisdiction is subject to sections 12, 13 and 14 of the Local Court Act. Under section 12, the local court cannot hear and determine a customary land dispute unless the dispute has been heard by the chiefs. Where the chiefs' decision is not acceptable to any of the parties, the dispute is then brought before the local court. Where the dispute is brought to the local court, section 13 gives the local court jurisdiction, amongst others, to hear the dispute de novo. An appeal from the local court decision then lies to the customary land appeal court ("CLAC") under section 256(1) of the Land & Titles Act. The Principal Magistrate is the clerk to the CLAC, purposely, to advise on the law and procedural matters. Under section 256(3) of the Land & Titles Act, a further appeal lies from a CLAC decision to the High Court on a point of law.
    
11. As commented by the Court of Appeal in Bavare v Nerapa[1] ("Bavare"), "By considering these provisions, it can be seen that the legislature has carefully put in place an exclusive hierarchy to deal with customary land disputes... Given this hierarchy of rights we are satisfied that there was ample opportunity for the appellants' complaints to be considered".
    
12. The "appellants' complaints" referred to in the Court of Appeal comments were similar to the complaints by the claimants in the present case.
    
13. In Bavare, the appellants represent the Siamabarava and Marava clans of the Kibi tribe of South Choiseul while the 1st respondent is the Babatana Council of Chiefs. The 2nd respondents represent the Para clan also of the Kibi tribe. There was a dispute between the Siamabarava and Marava clans and the Para clan in connection with the ownership of a plot of land within the Kibi customary land. The dispute came before the Babatana Council of Chiefs which made a determination in favour of the 2nd respondents. The appellants then filed a judicial review proceeding seeking an order to quash the Babatana Council of Chiefs' determination alleging bias, res judicature, breach of natural justice and breach of due process.
    
14. At the Chapter 15 Conference, the High Court ruled pursuant to Rule 15.3.18(d) that the appellants had an alternative remedy under sections 12 and 13 of the Local Court Act and dismissed the judicial review claim. On appeal to the Court of Appeal, the Court dismissed the appeal upholding the decision by the High Court.
    
15. In the present case, the claimants also seek judicial review of the Roviana Chiefs Panel's decision regarding the ownership of the Kidakale land. The complaints of the claimants are that the Roviana Chiefs Panel was biased and ignorant and that fraud was committed by the 2nd defendant. They further complain that the Chiefs had no jurisdiction to hear the dispute and that the Chiefs' hearing was not in accordance with the Local Court Amendment Act 1985.
    
16. I am satisfied, given the exclusive hierarchy put in place by the legislature as explained in Bavare, that there is ample opportunity for the claimants' complaints to be considered through the legal procedure prescribed under the Local Court Act and the Land & Titles Act. As such, it is my view that Rule 15.3.18(d) has not been satisfied and, hence, the claim should be dismissed.
    
17. Accordingly, the claim is dismissed with costs on standard basis against the claimants to be taxed if not agreed.
    

THE COURT

_________________________
James Apaniai
Puisne Judge

---

^[1] Civil Appeal Case No. 21 of 2011 (ruling 25 November 2011), at p. 7.