Fataledea v Kinita [2015] SBHC 59; HCSI-CC 386 of 2013 (30 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Maina J:

Civil Jurisdiction
HC-SI CC: 386 of 2013

BETWEEN:

Benjamin Fataledea (Representing Kwaidei Tribe)
1st Claimant

AND:

Peter Kinita, Charles Kwaita & Rex Mae (Representing Aimela Tribe)
1st Defendants

AND:

Attorney General (Representing Commissioner of Lands & Registrar of Titles)
2nd Defendants

AND

Island Road Works Ltd
3rd Defendant

AND:

Rueben Damirara, Samuel Lamani, Stephen Sipolo, Fredrick Kakitee, Malaketa, William Tele, Bailaketa, Billy Ansa
4th Defendants

J. Keniapisia for the Claimants.
D. Lidimani for 1st Defendants.
J. Muria for 2nd Defendant
L. Kwana for 4th Defendant (Billy Ansa)

Date of hearing: 1st May 2015
Date of Judgment: 30th June 2015

RULING

Maina J:

This is the ruling on whether or not Rule 15.3.18 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") has been satisfied in relation to this claim. And if the court is not satisfied it may end the process at that stage.

The claimant's case relates the claim of trespass, rectification of registered land titles and a judicial review on the 1963 decision of the District Commissioner for reviewing the decision of the West Kwara'ae Native Court.

At a conference under Rule 15.3.16 ("Chapter 15 Conference"), Mr. Lidimani, counsel for the 1st Defendants submits that the claim should be dismissed because the claimants have failed to show that they have an arguable case and the appeal period or application for judicial review is over 40 years ago. They have not satisfied the requirement of Rule 15.3.18 of the Solomon Island Courts (Civil Procedure) Rules 2007.

He said that this matter had been dealt by the Native Court in 1963. And the District Commissioner does have power to review the decision of the Native Court under section 23 – 25 of the Native Court Ordinance 1942. And it is now res judicata.

The prescribed period for appeal against the District Commissioner's decision lapsed in or about November 1963 and so claim for judicial review.

Mr. Keniapisia submits that the claimant has arguable case considering the claims have issues as deduced from the relief claimed. He refers to the powers of the District Commissioner to review the decisions of the Native Court as issue or question of law. He submits that there are issues to be determined by the High Court, hence, the judicial review claim was properly brought.

Mr. Keniapisia said this problem was discovered after a research on the matters relates to the land. They discovered that the District Commissioner had no power to hear the appeal from the Native Court. If he had no power to hear the appeal then the decision he made in the case West Kwarae Native Court (WKNC) 22/5/63 by changing the decision of Native Court is wrong in law and subject to be dealt or heard in High Court as in the case Buarifi v Fomani CC no 198 of 1992. This court dealt with native court of Western Kwara'ae's decision of 1965 on issue of clerical error in relation to the description of boundary.

Parties seems to be agreement that they are directly affected by the subject matter of the claim and no other remedies that resolves the matter fully and directly except with no arguable case and undue delay in making the claim.

The Buarifi v Fomani case referred to by counsel for claimant relates to a clerical error committed in the Native Court's decision of 1965, which the High Court corrected when the respondent approached after about 3 years from the decision of the Native Court. The Chief Justice consulted the three justices who presided through District Commissioner and they made affidavits on the error made by the clerk in the decision. As stated by Palmer J "The judgment or decision was merely being corrected so that it reflected the correct and true judgment or decision which the court intended to give anyway on the 20th of October 1965".

However, for this case the claims relate to fraud, lack of powers by the District Commissioner to hear appeal from Native Courts, thus enabled the defendants to be registered the land.

One aspect that relates or to sort out first is as it would assist in determining the requirement of Rule 15.3.18 is what is this claim is seeking from the court.

Mr. Lidimani said that this is an application for judicial review and should be dismissed as it's overdue for more than 40 years. But Mr. Keniapisia said the claim is not judicial review per se but only the judicial review aspect of the claimant is the relief sought to nullify that review decision by Malaita District Commissioner dated 30th August 1963.

On 14th October 2013 the claimants filed this claim under a Category C seeking series of declaratory or orders for:

• Trespass and damages,
  
• Declaration that the decision of Malaita District Commissioner dated 31st August 1963, Kwaidei/Aimela dispute is null and void,
  
• Direct the council of chiefs to review and properly describe the boundary
  
• Nullify all land sales by Irobina (in the 1960s),
  
• Rectification pursuant to section 229 of the Lands and Titles Act (Cap 133)
  
• Declaration that the decision of West Kwara'ae Native Court over Kwaidei/Aimela land date 22nd May 1963 is final and conclusive on ownership of those two lands.
  

It is notably clear from the claim filed by the claimant that the West Kwara'ae Native Court decision over Kwaidei/Aimela land dated 22nd May 1963 and the decision of Malaita District Commissioner dated 31st August 1963.

This claim was filed under Rule 2.2 and while Mr. Keniapisia said the claim is not judicial review per se they are seeking an order to declaration that the decision of District Commissioner is null and void and declaration that the decision of West Kwara'ae Native Court over Kwaidei/Aimela land dated 22nd May 1963 is final and conclusive on the ownership.

The claimant disagrees with the decision of District Commissioner in 1963. This is so as irritated by the claimant when they say the case is filed after a research on the matters relates to the land and in 2011 when the Police housing project was in process. During that process, they discovered that the District Commissioner has no power to review the land case from the Native Court.

The claimant, in fact or no doubt is seeking a judicial review. The claimant is saying that the District Commissioner when he reviewed the decision of West Kwara'ae Native Court he has no power to review as he was just an administrator. This may be an issue for determination by the court but the counsel for the first Defendant argues that the Claimant is seeking a judicial review of the District Commissioner decision. The Claimant has not complied with Rule 15.3.8 as he just filed this judicial review in 2014 of the decision made in 1993 or more well over 6 months before the proceeding was commenced.

For this case, there has been a tremendous delay of about 5o years in bringing the matter before a court. A question to ask is "where were you then or at the time until recently? The long delay is injustice to the people who rely on the decision of the case.

In this case, the claimants are saying that he is not seeking for judicial review but the relief on the claim are for declaratory orders. It is filed under Rule 2.2 for trespass and rectification of titles but the entire claim in fact is seeking for the judicial review of the Malaita District Commissioner's decision that relates to West Kwara'ae Native Court case.

The period of review as long overdue and it is my view that Rule 15.3.18(c) has not been satisfied therefore the claim should be dismissed.

Accordingly, the claim is dismissed with costs on standard basis against the claimant to be taxed if not agreed.

Leonard R. Maina
Puisne Judge