Isiola v Po'oikera House of Chief [2016] SBHC 196; HCSI-CC 536 of 2015 (28 October 2016)

IN THE HIGH COURT OF SOLOMON ISALANDS

(Faukona PJ)

CIVIL CASE NO. 536 OF 2015

BETWEEN:
JEFFERY ISIOLA, LABAN HONIMAE, KEMUEL KOKEPINE, GIDEON WATELU
Claimants

AND:
THE PO’OIKERA HOUSE OF CHIEF
First Defendant

AND:
CHRIS WATE
Second Defendant

Date of Haring: 23^rd August 2016

Date of Decision: 28^th October 2016.

Mr B. Upwe for the Claimants
MS. A. Willie for the First Defendant
Mr D. Nimepo for the Second Defendant

DECISION ON CHAPTER 15 CONFERENCE

Faukona PJ: A claim for judicial review was filed by the Claimants on 19^th October 2015. The reliefs sought in the claim one basically for declaration to declare the decision of the second Defendant is null and void and have no effect based on breach of the rule of natural justice. Should that declaration is granted then an order quashing the decision of the Po’oikera House of Chiefs made on 16^th September 2015 be effected. Alternatively should the Po’oikera House of Chiefs decision is quashed an order be granted for a new hearing be presided by the Korutalaumweimwei Council of Chiefs within three (3) months. Alternatively an order that the Malaita Local Court be restrain not to hear the referral filed from Po’oikera House of Chief’s decision.

2.	On the outset relief (b) is an administrative matter which the Local Court can do. If the referral document not complied with Section 12 (3) (c) of the Local Court Act, Local Court will ensure that they are done properly and accordingly. Hence, there is no need for this Court to interfere at an early stage to restrain Malaita Local Court from hearing the referral filed in its court.
3.	The Subject of litigation between the Claimant and the second Defendant is the ownership of customary lands known as arapuamora and taniankaro.
4.	Apparently, the dispute on the substantive issue or related issue was filed in the High Court in Civil Case No. 244 of 2015. While the matter is pending before the High Court both parties agreed that the ownership of araupuamora and teniankaro customary lands be determined by the Chiefs.
5.	Arapuamora and teniankoro customary lands are situated at the tip of the Southern part of big Malaita, next to registered land where Maka Police Station is situated. The land in located within West AreAre political boundary.
6.	The question arise is which House of Chief has the physical jurisdiction to hear the dispute? Is it the House of Chiefs in Small Malaita or House of Chiefs within West AreAre?
7.	On 6th July 2015, the President of Arua House of Chiefs wrote to the President of Po’oikera House of Chiefs and referred the matter to them as they cannot hear it, citing conflict of interest. The matter was also referred to Korutalaumweimwei Council of Chiefs to hear the matter. On 14th August 2015, the Korutalaumweimwei Council of Chiefs cancelled the propose hearing of the land matter. The reason for cancellation being that the area disputed is not within their locality, they are a Council of Chiefs from Small Malaita Island.
8.	Apparently, the two House of Chiefs had written to Po’oikera House of Chiefs, disqualifying themselves not to hear the dispute and recommended Po’oikera House of Chiefs as having jurisdiction.
9.	The Po’oikera House of Chiefs then scheduled hearing of the ownership of the two customary lands for 21st July 2015. The Claimants did not attend. See their letter Exh CW3 attached to sworn statement of C. Wate filed on 10th December 2015.
10.	The case was then rescheduled to be heard on 8th August 2015. The Claimants once again did not attend though they were served by notice.
11.	The case was then adjourned to 14th September 2015. As implicated notices was issued. Again the Claimants refused to attend. On the 16th September 2015 the Po’oikera House of Chiefs made their decision, concerning araupuamora and taniankaro customary lands in favour of the second Defendant and his group as true landowners of those customary lands.
12.	The Claimants were aggrieved of that decision hence filed this claim for judicial review.
	Chapter 15 Conference:
13.	In claims for judicial review, after the parties have filed their claim, defence and supportive sworn statements, the Court must call a conference under Rule 15.3.16. At the Conference the Court will consider four requirements;
	a.	The Claimant has an arguable case; and
	b.	The Claimant is directly affected by the subject matter of the claim, and
	c.	No undue delay; and
	d.	There is no remedy that resolves the matter fully and directly.
14.	By Rule 15.3.18, the Court will not hear the claim unless it is satisfied that the Claimant has fulfilled those above requirements.
15.	To be satisfied, the Court at the conference must consider the papers filed and hear arguments from the parties, Rule 15.3.19
	Argument in submissions:
16.	In this case, argument seems to circle around the physical jurisdiction of the first Defendant. The Counsel for the Claimants argues that the first Defendant has no jurisdiction to hear the lands in dispute because they are not within their locality. Secondly the first Defendant is a House of Chiefs from West AreAre who possessed different culture and adopted different land tenure system from South Malaita where the Claimant and the Second Defendant come from, and suggested that Korutalaumweimwei Council of Chiefs should be the right forum because they have the same culture setting and language. In fact they did not recognize the Po’oikera House of Chiefs to hear the dispute.
17.	The Defendants argue that Po’oikera House of Chiefs has the jurisdiction because it consisted of Chiefs who resided within the locality of araupuamora and taniankaro customary lands. In addition it is not a contentious issue that the Claimants and second Defendant are from Su’uri village which is within West AreAre constituency. However, jurisdiction of Chiefs does not define by reference to political ward but by creation of statutes.[1] Practically a number of House of Chiefs can exercise jurisdiction within one constituency boundaries.
	Qualification of Chiefs:
18.	To be qualified as a chief to preside in a Chiefs Panel hearing of dispute concerning or related to customary land has to be a chief or a traditional leader – see Section 11 of the Local Court Act. At the same time those chiefs or traditional leaders which comprise of a Panel must reside within the locality of the land in dispute, and who are recognised by the parties.
19.	In this current case the argument that members of the Po’oikera house of Chiefs have different culture, custom and practises from the parties are a misconception submission which I rejected outright. How could that be possible, when it is admitted that the parties and members of the Po’oikera House of Chiefs are within the locality of the lands in dispute. If the parties adopted a different culture, custom and different way of inheriting rights, could the Po’oikera Chiefs panel ignorant about it? They are living in the same area within the locality of the land. I have no doubt the members of Po’oikera House of Chief understand very well the custom and culture of the parties. Similarly, the West AreAre people know the cultures and customs of South Malaita people or vice versa. There is no difficulty understanding and knowing the custom or culture of those living next to you, though separated by political boundary or language. For Malaitans it is easy to learn and understand custom and culture of others living next to you. It will not take months, years to learn and understand, but an hour.
20.	The next issue raise, is the Chiefs or elders must be recognized by the parties. This is an issue related to recognition in custom, a point this court lacks jurisdiction to entertain. It boils down to the crevices of customs recognized in the Community and by what standard. It will be doom for me to venture into considering issues to decide status of chiefs or traditional leaders. Far better to abandon such issue as a better option to take, and allow such issue filter through right channel.
	Referral to Local Court:
21.	In normal and common circumstances the aggrieved party will file a referral to the Local Court which will produce to the local court a certificate in Form 1, containing the particulars signed by two or more of the Chiefs, section 12 (2) of the Local Court Act. And fulfil the requirement under Section 12 (3) by lodging a written statement to the Local Court.
22.	If the Claimants deny filing a referral case then any document filed with the Local Court by the Secretary to the Chief must be a certificate in Form 1 signed by two or more of the chiefs, expecting the aggrieved party to complete the rest. If that had been done undermining the intent of the Claimants then that is an error. Very important that a decision had been made. If the Claimants do not satisfy with the decision they should file a referral to the Local Court immediately. The error is an administrative one and can be changed without severing the value of the decision. And not necessary to rely upon this Court remedied an administrative error by order of court. The Claimants still have the chance to file a referral case; the privilege is still open to them. Meantime the decision of the Po’oikera House of Chiefs still stands.
23.	I noted the Po’oikera House of Chiefs had applied the criminal standard of proof in relation to evidence it received; that is proof beyond reasonable doubt. Less we are tight up with legalism in our understanding of the law, how much do we expect from our people in the rural areas who might not have attained any form education at all. I noted from many Solomon Islanders, even from people who contributed to columns in social media, applied different standard that is proof beyond reasonable doubt, and not proof on the balance of probability. The difference between the two can only be verified by lawyers who know. This issue has no merit in it, not even constitute a triable issue. At the conclusion, it would be proper to say the decision of the Po’oikera House of Chiefs is valid.
24.	Subsequently the Po’oikera House of Chiefs had proceeded and heard the land dispute issue without the Claimants being present or represented. It was clear the Po’oikera House of Chief decided to conduct the hearing and made a determination after they had issued notices on three occasions but the Claimants refused to attend.
25.	In my previous decisions I attempted to apply S. 12 (1) (b) of the Local Court Act. That, where all traditional means to resolve the dispute have been exhausted, the Chiefs could refer the case to the Local Court directly with explanation. There should not be any ex-parte hearing at all. It is not part and partial of traditional means of resolving disputes.
26.	However, over the years, the practice seemed to favour an ex-parte kind of hearing for some reasons. One of them is to move the case forward to the Local Court as soon as possible. From that reason, I am unable to see the Po’oikera House of Chiefs had deprived the Claimants a fair opportunity to present their case.
27.	To conclude, it is pertinent to point out that the Po’oikera House of Chiefs was obliged to preside and hear the land dispute because the Arua House of Chiefs by a letter dated 6th July 2015 had disqualified itself from presiding because conflict of interest. A month later on 14th August 2015, the korutalaumweimwei Council of Chiefs wrote to Po’oikera House of Chiefs that they could not preside to hear the dispute because the land concern was not within their locality.
28.	Eventually, the Po’oikera House of Chiefs had to carry out the obligation and perform what the law conferred upon them. In this instance the korutalaumweimwei Council of Chiefs cannot rehear the dispute; they have disqualified themselves in a clear statement.
29.	All in all, all issues which the Claimants advance as triable issues can be argued in another forum that is the local Court, which is a proper forum to resolve the matter fully and directly.
30.	From this perception alone it is sufficient for this Court not to hear the claim. Rule 15.3.18 expressly stated that should one ground is not fulfilled by the Claimant; the claim should be dismissed accordingly. I must therefore dismiss the claim for judicial review accordingly.
	Orders:
	1.		The claim for judicial review filed on 19th October 2015 is dismissed accordingly.
	2.		All the reliefs sought under the claim from (a) to (e) is hereby refused.
	3.		Cost of this hearing is paid by the Claimants to the Defendants.
	The Court.

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^[1] Alongolia V Maefilia (1991) SBHC 52, HC – LAC 001 of 1991 (12 November 1991).