Ghaokale v Tolia [2017] SBHC 46; HCSI-CC 571 of 2015 (20 June 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 571 of 2015

BETWEEN: ROSELYN GHAOKALE Claimant

AND: DANIEL TOLIA First Defendant

AND: THE GUADALCANAL CUSTOMARY LAND Second
APPEAL COURT Defendant

Date of Hearing: 15^th May 2017

Date of Decision: 20^th June 2017

Mr A. Hou for the Claimant
Mr N. Laurere for the First Defendant
Mr F. Hollison for the Second Defendant

JUDGMENT ON CLAIM FOR JUDICIAL REVIEW

Faukona PJ: A claim for judicial review was filed on 6^th November 2015. The first order sought was a quashing order to have the judgment of Guadalcanal Customary Land Appeal Court (GCLAC), verbally announced on 23^rd March 2015 and delivered as 26^th June 2015, be quashed. Time frame permitted by the Rules to file judicial review is an issue and will be dealt with later in this judgment.

2.	The second relief is a declaration sought that judgment of Guadalcanal Local Court on 1st April 2011 stands binding on the parties. And order 3 sought that Claimant be granted leave to appeal out of time against the judgment of the Guadalcanal Customary Land Appeal Court.
3.	On the outset, a point to note is that, the Claimant is a member of buru clan of thogo bonogo Landholding group. The first Defendant is also from buru clan and comes under thogo main tribe. Those facts are gathered from the sworn statements of the parties.
	Background facts:
4.	On or about 18th June 1985, Thomas Vithao and Alfred Tharoghia (both now deceased) were registered as joint owners of PN-191-012-7 on statutory trust on behalf of thogo bonogo Landholding Group.
5.	Mr Alfred Tharoghia is the son of Mr Thomas Vithao. The first Defendant (Mr Daniel Tolia) is the younger brother of A. Tharoghia (the last surviving trustee).
6.	On or about 13th February 2006, Mr A. Tharoghia died without a will, therefore, the estate did not form part of his residuary estate.
7.	Before the last surviving trustee died intestate, there had already been a dispute between J. Bikupe (the uncle of the Claimant) and Alfred Tharoghia) (elder brother of the first Defendant). The dispute was finally determined by the Ghaobata Council of Chiefs on 27th May 1998 that Mr Bikupe was a true relative of Thomas Vithao and that Alfred tharoghia only have rights on the registered land, and that any future acquisition proceedings concerning Lot 6 of LR 653, Mr Bikupe should be added.
8.	Alfred Tharoghia sought to quash that judgment in the High Court per (CC 187 of 2004), but by a decision of 15th November 2004 the Chief Justice refused to interfere with the decision in any way.
9.	Following that High Court decision, Alfred Tharoghia made a reference case against the Chief’s decision to the Guadalcanal Local Court on 2nd March 2005.
10.	Following the death of Alfred Tharoghia on 13th February 2006, his surviving family by letter dated 9th August 2006, referred the question of who should be the successor in title of perpetual estate to the Guadalcanal Local Court pursuant to Section 105 of the Wills, Probate and Administration Act (Cap.33).
11.	On 25th November 2008, the current Claimant and Others applied for an order that letters of administration of the estate be granted to them. The first defendant objected to and sought an order dismissing the application for letters of administration, on the ground that it was misconceived and an abuse of the Court process. The Court then ruled that the proceeding was an abuse of process of the Court and dismissed the application.
12.	Accordingly the Court found that the requirement of section 105 of the Act was mandatory and regulated the procedure to follow.
13.	That paves the way for the Local Court to hear the issue on 21st March 2011.
	Local Court jurisdiction and determination:
14.	This case contemplates an issue where the last surviving trustee died intestate without leaving a will. Therefore the perpetual estate in PN.192-012-7, being the subject, does not form part of his residuary estate. Being as it may, the relevant provisions, Sections 104 and 105 of the Wills, Probate and Administration Act which provides mandatory requirements and regulated the procedures to follow, must essentially take its course.
15.	The issue is who should be the successor in title of the perpetual estate or who should the perpetual estate devolved to in accordance with current local custom usage practiced by the people in the area? To determine the issues, the Act specially stated in S. 104, that the Court shall referred the matter by way of a case stated to the appropriate Local Court or Customary Land Appeal Court and to accept the certificate of such Court as evidence of the local custom applicable as a conclusive proof of such custom. In a similar content are the words expressed in S.105 of the Act.
16.	It transpired vividly that when the Guadalcanal Local Court presided over the dispute on 21st march 2011, there were two cases before it. One was a referral case by Alfred Tharoghia deceased, and represented by the first Defendant pursuant to S.12 (2) of the Local Court Act, and the other is a case stated referred to the Local Court under S. 104 and 105 of the Wills, Probate and Administration Act.
17.	Though there was no introductory statement related to the two subject matters, heard in consolidation, the analysis of custom evidence discussed under the heading “findings in custom”, was a reflection by Local Court of the custom and culture practiced by people in the area. They ought to be commended for their work.
18.	I noted the Counsel for the Attorney-General had pointed out certain errors in the decision by the Local Court. In particular as appeared in the orders of that decision. Whilst I would concede, that should not linger to derail the entire work done, but something which should be digested with some understanding. In my opinion, the decision seemed to mean that Alfred Tharoghia including Roselyn Ghaokale and Daniel Tolia were representatives of thogo bonogo tribe.
19.	Of course, there were discrepancies and confusion in Orders 2 and 3 but with a right of appeal granted, and the fact that the Guadalcanal Customary Land Appeal Court which comprised of one member who is a legally qualified Magistrate, should as required, recorded proper construction of words as far as orders and decision of Court is concerned.
20.	On the whole, since there were two cases involving same parties with the same issues, a consolidation would be proper means to deal with both cases. Any outcome should achieve the same result. As such, I agree with Mr. Laurere that appeal rights is due to an aggrieved party to appeal to the Customary land Appeal Court. In this case the first Defendant had grasped that opportunity by filling notice of appeal to the GCLAC.
21.	At this point, the Claimant argues that the GCLAC acted ultra vires its powers under S.104 of the Wills, Probate and Administration Act that instead of being confined to the stated case, conducted itself unlawfully by entertaining an appeal from the Guadalcanal Local court. Such conduct therefore contravened S. 105 which does not provide any appeal against any certification by any Local Court on the issue of succession in title. However, the Act does not prescribe any procedure for certification, and that could be viewed as insufficient.
22.	The Claimant’s argument can be perceived as legitimate if the only issue before the Local Court was a reference made to it by a case stated. In this case the Local court had two cases to determine. One was a referral from the Chiefs decision and a stated case referred to it by S.104 of the Wills, Probate and Administration Act. I have to reiterate again that the Guadalcanal Customary Land Appeal Court had jurisdiction to hear an appeal from the Local Court, so far as consolidation of the two cases are concerned. It is a jurisdictional issue that follows on from the decision of a Local Court and nothing could erratically do away with.
23.	So far as evidence adduced in the lower Courts was concerned; they were in fact produced the most stunning confused statements of all. One understanding is that the Claimant is from buru clan which comes under thogo main tribe. The first Defendant is of bonogo clan and comes under lathi tribe.
24.	On 8th August 2006, there was a statement made by the first Defendant that Vithao and Tharoghia jointly owned the estate on statutory trust on behalf of thogo bonogo land holding group which is the same as bonogo clan of the thogo tribe. The consistent used of the words; “bonogo clan of thogo tribe” in the statement is not the same as bonogo clan of lathi tribe.
25.	The difficulty confronted by the two clans was when the Crown decided to transfer the estate to the original customary land owners on 18th June 1985, which perhaps must be made to a land holding group to be held by certain people in statutory trust on their behalf. Therefore, and most probably, a combination or mixture of two clans was relevant to form one customary land holding group. This was probably the rational for the birth of “thogo bonogo land holding group”.
26.	In any event the first Defendant denied in his sworn statement filed on 8th July 2016, that it is wrong to combine a sub-tribe (clan) with a main wrong tribe as in the case of thongo bonogo”. It was further stated that thogo have no customary association on connection with bonogo.
27.	The basic reason for separate existence of the two clans is traced back to their original founders. The founder of the Claimant’s clan was Kokomu and the founder of the first Defendants clan was Lumani. According to evidence two clans or sub-tribes cannot jointly own one customary land neither integrated in customary land inheritance, ownership and usages.
28.	For this reason, and one believed by the Guadalcanal customary Land Appeal Court that Vithao’s rights including rights of inheritance to this particular land will ceased with him as he was the last men standing so far as bonogo clan is concerned. This right of inheritance of customary land cannot automatically transfer by inheritance to his children, because by matrilineal traditional system their mother is from sili clan, a different clan which have their own land rights to their land.
29.	To maintain continuity of land rights and ownership of the land including lot 6 without cessation, the first Defendant, his brothers and sister transacted in custom, a payment to their father T. Vithao a consideration consisted of $10,000.00, five pigs and one red shell money (talina) under customary usage. This traditional transaction was denied by the chiefs and the Local Court but was believed to have been done by the Customary Land Appeal Court and therefore decided in favour of the fisrt Defendant.
30.	I see no reason that the CLAC in exercise of its powers had committed any error in point of law or procedures or abuse of process which may require this Courts intervention. Conclusion they have arrived at was to the best of their knowledge and understanding concerning the case presented before them.
	The preliminary issues:
31.	The preliminary issue particularly raised by the Counsel for the second Defendant pertaining to late filing of this case out of 6 months as required by Rule 15.3.8 of the Solomon Island Civil Procedure Rules 2007 (CPR).
32.	At Chapter 15 Pre-Trial Conference all the parties agreed that the Claimant had complied with the four requirements as stated in Rule 15.3.18.
33.	After certain sworn statement was filed Counsel for the Attorney-General sought leave to draw oral submissions on the issue of filing out of time. I agreed with some reservations, however, leave was eventually granted.
34.	The Counsel’s core argument was never supported by the written submissions filed on behalf of the first Defendant. His arguments premises on the fact that the CLAC had delivered its decision on 23rd March 2015 and that a written judgment was delivered on 29th June 2015. Therefore to file this claim on 6th November 2015 was more than late.
35.	According to record of CLAC, an extempore or oral decision was read out on 23rd March 2015 and a written judgment was delivered on 29th June 2015. Therefore filing of this claim on 6th November 2015 was more than six months therefore late. The Counsel persisted that six months started to count from 23rd March 2015 when an extempore decision was read.
36.	Mr Hollison has referred me to a number of case authorities. However, the most appropriate case which has some similarities in facts is the case of Vikasi V Vunagi[1]. In this case an extempore or oral judgment was delivered to the parties on 26 July 2013. Full written reasons for decision were made available, or delivered to the parties on 8th August 2013. The Court of Appeal affirmed that appeal against decision of CLAC should commence on 26th July 2013 and not on 8th August 2013.
37.	By authority of Vunagi case above, the provision under Rule 15.3.8 was not complied with. The claim for judicial review was filed on 6th November 2015, one month and two weeks late. Therefore was an undue delay.
38.	Amidst all, there was no application to extend the time outside of the prescribed period for making a claim, see R. 15.3.9. This could have been done before filing of a claim for judicial review. Meantime undue delay is prevailing which the Claimant had failed to fulfil. Hence I must refuse to hear the claim, see Manasau V Attorney-General[2].
39.	In all that I say and exerted as reasons for my decision, I must therefore concluded with the following orders.
	ORDERS:
	1.	The claim for judicial review must be dismissed.
	2.	The decision of the Guadalcanal Customary Land Appeal Court delivered on 23rd March 2015 still prevails.
	3.	Refuse to grant leave for the Claimant to appeal out of time. There was no intention to appeal at all, nor there was any formal application for leave to extend time to appeal out of time.
	4.	Cost of this case is to be paid to the Defendants by the Claimant.
	THE COURT.

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^[1] (2016) SBCA 14; SICOA – CAC 02 of 2016 (12 October 2016)
^[2] (2014) SBHC 83, HCSI-CC 332 of 2013 (8 September 2014)