Gwali v Malai [2017] SBHC 12; HCSI-CC 602 of 2015 (21 February 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 602 of 2015

BETWEEN: URIEL GWALI and WATSON SIKUAI
(Representing the Bitakaula Tribe of Central
Kwara’ae) Claimants

AND: JONATHAN MALAI, JOHN MARK SAOMAE,
FREDRICK SAMO First Defendants

AND: ALFRED GEGEO, COLLIN RAMO,
WILLIE KWALEA Second Defendants

AND: DALGRO (SI) LTD Third Defendants

Date of Hearing: 21^st November 2016
Date of Ruling: 21^st February 2017

Mr P. Tegavota for the Claimants
Mr D. Marahare for the First Defendant
Mr L. Kwaiga for the Second Defendant
No one for the Third Defendant

RULING ON APPLICATIO TO STIKE OUT

Faukona PJ: This is an application by the second Defendant to strike out the claim on the basis that it does not disclose reasonable cause of action.

2.	On 26th June 2014, the bitakaula/aisisiki customary land dispute was heard by the Lafari House of Chiefs from Ward 28, West Kwaio. There is no dispute that the subject land is located within Central Kwara’ae, of Malaita Province.
3.	On the same date of hearing the Lafari House of Chiefs gave their decision in favour of Mr Watson Sikuai, one of the current named Claimants.
4.	On 12th November 2015 an MOU was signed between the first, second and third Defendants with the intention to grant consent to the third Defendant to enter dukwasi gravel pit or quarry and extract gravels. The MOU was witnessed by Malaita Province, Provincial Police Commander and a representative of the Ministry of Infrastructure development.
5.	Based on Lafari House of Chiefs determination, the Claimants had filed a claim in category C on 15th December 2015 for trespass and damages.
6.	Before that, an application for ex-parte restraining orders was filed on 30th November 2015. On 14th December 2015 this Court heard the application, and granted the orders sought and endorsed on 15th December 2015.
7.	On 20th January 2016 the second Defendants filed their defence. On the same date they filed this application for dismissing the claim. On 18th February 2016 the first Defendants filed their defence.
8.	Since the restraining orders were obtained, by way of ex-parte, this proceeding must therefore be treated as an inter-parte hearing.
	The issue:
9.	The issue is not so much entails whether there is reasonable cause of action disclose in the claim as required by Rule 9.75. But more so of a jurisdictional issue which is a point of law, rather than disclosure of facts that will attract and entertain arguments. On the other hand, Mr Marahare also relies on the fact that the claim is frivolous and vexatious.
10.	The question is whether a House of Chief in a different ward, in a different constituency can able to entertain and gave final determination in a landownership issue of which the subject land was located in a different ward in a different constituency?
11.	The argument advanced by Mr Kwaiga on behalf of the second Defendant is based on Section 11 of the Local Court Act. That argument seems to be supported by Mr Marahare. Section 11 specifically states, “For the purpose of sections 12, 13, 14 the expression “Chief” means chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute”.
12.	I would agree with Mr Kwaiga and Mr Marahare that Section 11 of the Local Court Act is mandatory. However, so often that provision is violated for some undisclosed reasons.
13.	Section 11 advocates, among others, those Chiefs or traditional leaders who reside within the locality where the land in dispute is located can able to hear that land dispute. However, there are situations where the parties do not agree with the composition of the entire house of Chief. They can agree on a different house of Chiefs not residing within the locality of the land in dispute to preside the hearing. In this case there is no evidence that parties agreed for another House of Chief to determine the issue of ownership of bitakaula/aisisiki customary land?
14.	For Lafari House of Chief from West Kwaio, in Ward 2 to preside and determine bitakauli/aisisiki customary land which is situated in Central Kwara’ae is contrary to the natural tone of law enshrine in Section 11 of the Local Court Act. It is better to yield to the rule of law as a law abiding citizens. After all, obedient is a silent action that speaks volume of who a person is.
15.	In constructing my decision I find comfort in the authorities in the case of Vaekesa V Varisi House of Chief[1] and the case of Lagobe and Tozaka V Premier of Western Province[2] which adopted the reasoning in Vaekesa case.
16.	In turning to the substance of the claim, which is trespass based, has negatively been affected by the lack of jurisdiction by Lafari House of Chiefs. To prosecute a trespass case in the High Court, one has to have in possession of a valid decision from one of the land tribunals (as chiefs) or Courts. In the absence of such, one cannot expect to succeed in prosecuting the issue of trespass to land.
17.	Hence jurisdictional abhorrent manifested by Lafari House of Chiefs must not be accepted, and the decision made under such circumstance must be invalid. The reasons are precisely clear that Lafari House of Chiefs is located in a different ward, in West Kwaio and in different constituency from Central Kwara’ae where the land is situated. Secondly there is no evidence that the parties had consented for the Lafari House of Chiefs to preside over their land dispute.
18.	If there had been a number of litigations in the past, concerning the same customary land, the Claimants could have utilised one of the decisions, if it was in there favour at all. How many more decades would the dispute about the same land will continue on. I think the Courts must be conscious and be vigilant to ensure land disputes must come to an end and to watch out for res-judicata principle.
19.	With my respective reasoning I grant the orders sought by the second Defendant.
	Orders:
	1.	The restraining orders granted on 15th December 2015 to be discharged and dismissed.
	2.	Order that Lafari House of Chiefs lack jurisdiction to hear and determined bitakaula/aisisiki customary land which is located within Central Kwarae.
	3.	That decision of the Lafari House of Chiefs must be without any effect and be dismissed.
	4.	That the claim by the Claimants filed based on Lafari House of Chiefs decision is hereby dismissed.
	5.	Cost of this application is to be paid by the Claimant to the Defendants.
	The Court.

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^[1] (2008) SBHC 70; HCSI CC 465 of 2007.
^[2] (2008) SBHC 67