Watara v Taro [2014] SBHC 28; HCSI-CC 241 of 2013 (1 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 241 of 2013.

BETWEEN:

PROBETS WATARA and MOSES HIRU (for and on behalf of Atawo clan)
Claimants

AND:

EDWIN TARO (for and on behalf of Amwea clan)
First Defendant

AND:

AND THE ATTORNEY-GENERAL (representing Makira Local Court).
Second Defendant

Date of Hearing: 1st April 2014.
Date of Ruling: 1st May 2014.

Mr N. Laurere for the Claimants
Mrs M. Bird for the First Defendant.
Mr J. Muria (Jnr) for the Second Defendant.

RULING.

Faukona J: A claim (Category C) for judicial review was filed on 23rd October, 2013, after an order for extension of time was granted. The Claimant sought to review the decision of the Makira Local Court dated 14th December 2010, which quashed the decision of the Haununu Chiefs.

2. In respond to the claim the Defendants had filed defences on 23rd January 2014 and 12th February 2014 respectively.

3. In claims for judicial review, it is a requirement under Rule 15.3.16 of the Court Rules 2007, that as soon as practicable after the defence has been filed and served, the Court must call a conference. Traditionally this conference often refers to as Chapter 15 conference.

4. At the conference, the court will be addressed on four matters. Rule 15.3.18 provides that the Court will not hear the claim unless it is satisfied on the balance that those requirements have been established. It would appear, in my view, that should the Court dissatisfies with one issue the whole claim will not be heard.

5. From submissions, it is apparent that the four preliminary matters are in dispute.

Arguable case:
6. The issue that constitute arguable case is that the Claimants had received a favourable decision from the Chiefs determination. By virtue of Section 12 (3) of Local Court Act, this does not really expresses in definitive term in relation to an aggrieved party. However, assimilated from paragraphs (a) and (b) of subsection (3), which require a party not accepting the decision, and its extend in effect, to file a reference case with the appropriate Local Court.

7. To substantiate his argument Mr Laurere refers to the case of Veno & Others V Jino and Others and Majoria V Jino[1] in which the Court held,

"... that a party who had obtained a favourable decision from the chief could not institute proceedings in the Local Court to confirm the decision.."

8. On the other hand, Mrs Bird argues that the Claimants had chosen to refer the matter to the Local Court; they can't turn around now and blame the second Defendant for their mistake.

9. This point alone encompasses an arguable case in law end procedure. The question is whether the referral by the Claimant is a valid referral is an issue to be heard at trial.

Claimants are directly affected by the matter:
10. The Claimants were owners of Sareai customary land by the decision of the Chiefs. In the Local Court, the Court quashed the Chiefs decision and ordered the case be referred by different constituted chiefs; and of course right of appeal explained.

11. There is argument that the Claimants were deprived of their rights of ownership. I do not think that submission has any value. This is a case referred to the Local Court by the Claimants themselves. The Local Court has a discretionary power to determine any claim placed before it. It can affirm the Chiefs decision or quash it and refer the matter back to the Chiefs for rehearing. Any decision whether for or against affect both parties, and no doubt has affected the Claimants directly.

Undue delay:
12. Undue delay under R.15.3.18 (c) is undue delay in making or filing of the judicial review claim. By R. 15.3.8 a claim for judicial review must be made within six months from the date of the decision of the lower court or tribunal. In this case, the date of decision sought to be challenged was 14th December 2010. It was the date upon which an oral decision was delivered in the presence of the parties. After the oral decision, the Claimant was advised by one of the chiefs to see a Principal Magistrate. That was an advice from someone in the same boat as the Claimant.

13. On the day of oral decision, the Claimant could have consulted the Clerk of Local Court, who at that time was present at tetere village, the Court venue. The Clerk should have advised him of his right of appeal, time limitation, how he would go about it, what was expected of him and of course appeal fees that may involve. The Claimant seemed could not bother to, or was ignorant of, instead absorbed an advise from a chief who also did not know of the Court procedures.

14. It may seem that the Claimant was worrying about a copy of a written decision. He understood and acknowledges his own circumstances living in a remote weather coast area of Makira island. How long would a mail from Kirkira take before it reached its destination in the weather coast? If the Court decision was something that caused grievances to him he would, as a best option, travel to Kirakira earlier perhaps at the end of December or early January in 2010. He did not until May of 2011 when he finally got to Kirakira by bush track. Worst still, the Claimant could have consulted the Resident Magistrate in Kirakira for some advice. Instead he travelled back home then to Honiara just to consult a Principal Magistrate. From Honiara he went home and then to Kirakira again.

15. Eventually the Claimant travelled again to Honiara and consulted a lawyer on 29th October 2012 and advised on time limitation for appeal and filing of a claim for judicial review. By then time limitation had lapsed for both processes. Despite that, a claim for judicial review was filed on 23rd October, 2013.

16. Whilst I agree that some, or most of S.I citizens do not know Court rules, procedures and practices. But it is common sense for the Claimant having aggrieved of the oral decision should consult the Local Court clerk immediately on the same day of his rights. Better still made his way to Kirakira to consult the Magistrate knowing the remoteness of his place of abode. As it appears, he was expecting a written decision before he made a move. That is a lay and unaccepted excuse. If he could walk to Kirakira forward and backward at will, he could have done earlier. Travelling to Honiara to seek legal advice was a waste of time. A proper and valid advice could have been obtained from the Magistrates Office in Kirakira. His letter of 8th August 2012 was an advice in the right direction. That the matter be referred to the Chiefs. Mr Taro's letter challenging referral to the Chiefs is so minimal in terms of its validity and effect. The Court order was clear and plain that the case be referred to the Chiefs. Mr Taro nor his lawyer would be unethical to challenge an order of court directing what ought to be done.

17. By raising difficulties associated with his lateness and undue delay are excuses I perceived as holding no ground at all. Arrangement for another Council of Chiefs to hear the case can be done with the assistant of the Resident Magistrate, Kirakira. I noted the Claimant is not someone who slept on his rights. I do sympathize with him in his effort to attain justice, but justice in my view has a limit in law, see Sika V Matupiko[2], page 11, and paragraph 4. I appreciate the Claimant's effort seeking advice but that could have sought earlier. 2 years and 30 days delay is unreasonable in the circumstances, therefore unjustifiable.

No other remedy that resolves the matter fully and directly:
18. There are two possible remedies that were available to resolve the matter fully and directly. One was an appeal to the Eastern Customary Land Appeal Court which advice could have been sought from the Resident Magistrate Kirakira. The Claimant as he was, seem to ignore that option but rather choose to see a Magistrate from Honiara. Reason for that is any body's guess, may be the Resident Magistrate is unqualified and incapable to give fair and quality advice. Whatever the reason may be any advice imparted should be first hand to assist the Claimant knew of his rights and to move this case forward.

19. Now it would be difficult to consider neither does it attract any determination because of the prevailing circumstances of unreasonable delay?

20. The second option is to go back to a differently constituted chiefs council to rehear the dispute again. That indeed was the content of an order of Court. The excuse that any other Council of Chiefs would not qualify as being outside of locality of the land and because of objection letter from the Defendant does not hold good reason at all. Having exhausted the jurisdiction of Haununu Council of Chiefs, there is no law in Solomon Islands to stop nearest Council of Chiefs to hear the dispute provided both parties have agreed to.

21. Arrangement for another or nearest Council of Chiefs to hear and determine the question of land ownership can be done with the assistant from the Resident Magistrate. It would be out of any legal argument if the Defendant objected to or even seek legal advice to object to any further hearing of differently Constituted Chiefs Council.

22. From the above reasonings, I feel I am far from being satisfied that no other remedy available to solve the matter fully and directly, meaning Rule 15.3.18 (d) has not been satisfied.

23. I have to exercise my discretion on the balance of probability in favour of the Defendant in this case. The Claimants have failed to satisfy me, hence, this claim should not proceed to trial, and therefore be dismissed accordingly.

Order:
1.The Claim for judicial review is hereby dismissed.
2.Cost to be paid by the Claimant to the Defendant.

The Court:

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^[1] [2007] SBC A 20; CA-CAC 36 of 2006. (1 November 2007).
^[2] [2001] SBHC 78; HC-CC 082 of 2001 (6 November 2001).