Paza v Rani [2016] SBHC 80; HCSI-CC 157 of 2016 (2 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 157 of 2016

BETWEEN:

CHIEF SIMBA PAZA
(Representing the Moka Tribe of Rendova Islands,
Western Province)
Claimant

AND:

HAMILTON RANI, JOSEPH PITU, WILLINGTON LIOSO,
REDLY LOPAEVO, ROBERT KULONI, DONALD BASILI,
BILLY APUSAE AND CONNIE GROUSE (As members
Comprising the panel of chiefs delivering the decision
Dated 10^th November 2015)
First Defendants

AND:

FLORENCE VIRIVOLOMO
(Representing the members of the But’ru and Ghalaz’va
Tribe of Rendova Island, Western Province)
Second Defendant

Date of Hearing: 2 June 2016
Mr. Marahare for the Claimants
Mr. Pitakaka for 2^nd Defendant

BROWN PJ:

Extempore.

Application for Judicial Review

This case is properly categorised as one for judicial review since the Claimant seeks a declaratory order. The High Court is asked to find that the panel of chiefs who sat and determined a customary land claim argument are not chiefs or traditional leaders residing within the locality of the Moka & But’ru/Ghalaz’va customary lands for the purposes of Ss.11 & 12 of the Local Courts Act (cap 19)

The Claimant also seeks an order quashing their decision and consequent upon that order a direction that any fresh dispute as to Moka Customary Land as between the Claimant and 2^nd Defendant should be referred to the Rendova Council of Chiefs as the appropriate forum to hear any such dispute.

In so far as the first claim concerns the finding whether or not these chiefs who made a decision (after hearing) on the 9 November 2015, since it principally goes to the fact of whether or not these presuming to sit as Chiefs have standing so to hear this dispute, and is not strictly a question of law but custom, the High Court is not the appropriate forum for the determination of facts going to the standing of persons in custom in their community.

There is, by virtue of Ss. 12, 13 of the Local Court Act, the right in an aggrieved person to appeal an unacceptable decision by the chiefs to the local court, and this clearly is such a case.

The joining of the 2^nd Defendant in judicial review proceedings is not an appropriate course, since while the 2^nd Defendant may have been concerned with the chief’s finding, she is not the decision maker whose finding the Claimant seeks to bring up for review. Her joinder can be seen as an attempt to have any rights so found by the Chief extinguished by this application, without further hearing if I was to grant the application and quash the decision. The joinder is an abuse of process. The appropriate tribunal is that provided by the review process set out in the Local Court Act, for a local court has jurisdiction in accordance with S.13 to address the matters raised in the application before me, and it may if necessary include taking evidence from one or more chiefs as to the customary law applicable within the locality of the land (including the authority of those able to speak as chiefs) and custom governing the issues in the dispute , all matters which the High Court shall not entertain.

I am not prepared to exercise my discretion to entertain this application by granting leave for review, for the reasons I have given.

The application is refused. The claim is dismissed. Mr. Pitakaka seeks costs since they follow the event.

I make an order for costs on the 3^rd schedule in favour of the 2^nd Defendant.

I direct if the time limited to appeal from the chief’s decision has expired, that this Claimant has 28 days in which in his discretion to institute such an appeal. --

THE COURT