Teika v West Rennell Council of Chiefs [2014] SBHC 90; HCSI-CC 422 of 2014 (5 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOHNSON NGATONGA TEIKA & TONY TUATA
Claimants.

AND:

WEST RENNELL COUNCIL OF CHIEFS
1st Defendant

AND:

LEONARD KAITU'U
2nd Defendant.

A. Rose for the Claimants
M. Hauri'i for the 1st and 2nd Defendants.

Date of hearing: 9 July 2014.
Date of Ruling: 5 September 2014.

RULING
Apaniai, PJ:

1. On 2 July 2013, the 1st defendant, West Rennell Council of Chiefs, delivered a decision in respect of a land dispute between the claimants and the 2nd defendant in relation to the ownership of Tepotuhage customary land ("Land"), situated on Rennell Island in the Rennell and Bellona Province. The hearing took place on 28 June 2013 and the decision is that the 2nd defendant is the owner of the Land.
   
2. The claimants are not satisfied with the decision and filed a judicial review claim against the 1st and 2nd defendants challenging the legality of the decision. The ground for the challenge is that they have not been properly served with the notice of the hearing. They claim that the hearing was fixed for 24 June 2013 but the notice of hearing was only served on them on 20 June 2013, which was just four days away. They say this was insufficient time to allow them prepare their case properly. They say they wrote to the secretary to the 1st defendant objecting to the timing of the hearing and suggesting that the hearing be cancelled or that the dispute be heard by the Bellona Council of Chiefs. They say that despite their letter, the 1st defendant proceeded with the hearing and made the decision referred to above.
   
3. In response to the claim, the 1st and 2nd defendants have filed a defence in which they admitted that a decision was made in favour of the 2nd defendant but denied, amongst other matters, that the claimants were not given sufficient time to attend the hearing. They say that the hearing did not proceed on 24 June but on 28 June 2013.
   
4. Under, rule 15.3.16 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules"), the court must call a conference (normally referred to as Chapter 15 Conference) as soon as possible after the defendant has filed a defence. 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. In other words, the court will dismiss the claim unless it is satisfied as to these four matters.
   
5. These four matters are:-
   

[a] the claimant has an arguable case;

[b] the claimant is directly affected by the subject matter of the claim;

[c] there has been no undue delay in making the claim; and,

[d] there is no other remedy that resolves the matter fully and directly.

6. Under Rule 15.3.19, the court is entitled to hear argument from the parties in relation to these matters.
   
7. At the conference, Mr. Hauri'i, of counsel for the 1st and 2nd defendants, failed to turn up despite having been issued with a notice of hearing relating to the conference. I decided to proceed with the conference. I heard Mr. Rose of counsel for the claimants who tendered a written submission. Mr. Rose's submission is that the requirements of rule 15.3.18 have been satisfied and that the case should proceed to trial. In other words, the judicial review claim is the proper process and that the case should proceed as it is.
   
8. I have considered Mr. Rose's submission. I am satisfied that Rule 15.3.18(a), (b) and (c) have been satisfied. The only issue is whether paragraph (d) of Rule 15.3.18 has been satisfied.
   
9. It is a settled principle of law that the court will not readily grant judicial review of administrative decisions where statute has prescribed an appeal process[1]. As Sir John Donaldson, MR, said in R v Epping & Harlow General Commissioners, ex parte Goldstraw[2]:
   

"It is a cardinal principle that, save in the most exceptional circumstances, the jurisdiction to grant judicial review will not be exercised where other remedies were available and have not been used."[3]

10. As the only issue in this proceeding is whether there are remedies available other than the judicial review process, which could resolve the dispute between the claimants and the 2nd defendant fully and directly, I can do no better than refer to the Court of Appeal decision in Bavare v Nerapa[4] ("Bavare"). That was a case where an application for judicial review was made in relation to a chief's decision regarding customary land ownership. In that case, a Chapter 15 conference was convened at which Justice Chetwynd held that the claimant had an alternative remedy pursuant to sections 12 and 13 of the Local Court Act (Cap. 19). He therefore dismissed the judicial review claim.
    
11. On appeal, the Court of Appeal dismissed the appeal holding that, since a hierarchy of appeals has been provided by the Local Court Act and the Land and Titles Act to enable parties aggrieved by decisions made in relation to customary land by the chiefs, the local court and the Customary Land Appeal Court, Justice Chetwynd was correct in dismissing the claim on the ground that paragraph (d) of Rule 15.3.18 had not been satisfied.
    
12. On the basis of the Court of Appeal ruling in Bavare, it is my view that this proceeding must follow the same path. In other words, a referral of the dispute to the local court is still an alternative remedy available to the parties which could resolve their dispute and that a judicial review claim cannot resolve the dispute fully and directly.
    
13. In that regard, I am not satisfied that there is no other remedy available to resolve the matter fully and directly as required under Rule 15.3 18(d).
    
14. The judicial review claim is therefore dismissed with costs against the claimants to be taxed if not agreed.
    
15. Orders:-
    

[1] The claim is dismissed.

[2] The claimants to pay the costs of the 1st and 2nd defendants on standard basis to be taxed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] Bollen v Sade [1999] SBHC 109; HC-CC 345 of 1999 (9 November 1999); Bavare v Nerapa [2011] SBCA 22; CA-CAC 21 of 2011 (25 November 2011); Koga v Attorney General [2014] SBHC 15; HCSI-CC 105 of 2012 (20 March 2014).
^[2] [1983] 3 All ER 257 at p. 262

^[3] R v Epping & Harlow General Commissioners, ex parte Goldstraw [1983] 3 All ER 257, per Sir John Donaldson MR at p. 262.
^[4] [2011] SBCA 22; CA-CAC 21 of 2011 (25 November 2011).