Ambrose v Keioi [2016] SBHC 172; HCSI-CC 213 of 2014 (5 October 2016)

IN THE HIGH COURT

OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN: BOLLEN AMBROSE & PAUL KAPAKENI - Claimant
(Representing their Tribe of family)

AND:ELLAH KEIOI, DAVID ALPEA & - 1^stDefendant
THOMAS ALPEA
(Representing their Tribe or Family)

LAUNIUA HOUSE OF CHIEFS - 2^nd Defendant

Date of Hearing: 1 September 2016
Date of Decision: 5 October 2016

Mr. Kwana for Claimant
No appearance for the defendant

Claim Category. “C” for declaration in relation to findings of a local court

Brown J:

The initial paragraph of the Claim expresses the problem.

“The Claimant seeks:-

[i] An order that the Claimants shall equal rights and access in custom with the First Defendant’s tribe or line to land and its resources known as Henuarei customary land situate at Keila Island, Luaniua, Ontong Java, Malaita Outer Islands, pursuant to the Malaita Local Court Decision in Land Case Number 3 of 1989 dated 29 July 1989; and subject and/ or pending the Appeal lodged in the Malaita Customary Land Appeal Court by Joseph Aisuhelo of the Claimant’s tribe.”

Bollen Ambrose swore a statement in support on the 15 July 2014 but on the 26 November 2015 a second application was made to strike out the proceedings pursuant to Rule 9.75 of the Civil Procedure Rules. The basis of the application was the absence of jurisdiction to entertain claims of this nature. In support of the application a statement of David Ma’ai, tribal elder of the 1^st defendant’s line was filed.

His statement said:-

“5. I say that inherent in the authority vested on late Kumuli were the following customary aspects;

[a] The absolute power to deal with and make decisions on how the island was to be used for the benefit of, not only the 1^st defendants relatives but also the Claimants.’;

[b] The power to banish individual members or tribal members who have rebelled against the ultimatecustomary authority;

[c] The power to restrict the use of the island to certain individuals when and where necessary including the right to exercise control over the use of resources, its harvesting and so forth.

6. I say that the matters deposed to above are customary responsibilities and obligations that fall outside of the formal court system and over which the High Court cannot exercise control and jurisdiction.

7. As deposed to above, if a member of the tribe attempts to dethrone or undermine the authority of the rightful heir or custodian of the land [and in this case our late Thomas Kumuli], the custodian would normally exercise the power in custom to banish him or her entirely from the island. Effectively, the relatives and descendants of the tribal members who had been banished would not be able to use and/ or benefit in any way from the resources thereon.”

The claimant’s case is as a consequence, the members of the tribe have been denied,since 1989 access to Henuarei land, and have found it difficult to survive.

The Customary Land Appeal Court has not entered upon the appeal. I shall make enquiries to determine why no action seems to have taken place over these years.

On reading the material in support of the claim, it would appear that the late Preslie Watts, Barrister and Solicitor had written to the LuaniuaHouse of Chiefs, Ontong Java Atolls, rather threatening the Chiefs with CID criminal action and again later

judicial review of the House’s decisions. The letters were scurrilous and while written under instructions presumably by the claimants, were not factually or legally based. For this Court, for instance has no right of judicial review over Chief’s proceedings in custom. It is this type of action which gives cause to dissention amongst tribes.

The recourse by the claimants is to the CLAC and only then if aggrieved on a question of law may they come to this court. The High Court does not have power to mediate as it were in matters of custom.

The avenue provided by statute for redress when any person is aggrieved by a decision of the local court exercising its jurisdiction under section 13 [d] or [e] of the Local Courts Act, is to appeal by way of section 256 of the Land and Titles Act. This would appear to have been done in this case. This court has power by mandatory order to oblige that CLAC to carry out its function.

By way of S. 256[2] a customary land appeal court may substitute for the decision appealed against such decision and may make such order as it may seem just.

The local court decision would clearly recognise the equality of rights afforded both conflicting parties for they stem from the same genealogy. The manner in which the tribal paramount body approaches the difficulties as shown by the statement of David Ma’ai may be seen as threatening breach of an International Convention against Human Rights for the statement would appear to prevent the basic right to sustenance from ones own land. Underlying custom needs to recognise these principles of rights if in fact there is a risk.

This court has no jurisdiction to entertain the claim.

The proceedings are struck out as being ultra vires the jurisdiction of the court. I make no order as to costs.

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BROWN J