Watts v New Georgia Local Court [2017] SBHC 47; HCSI-CC 50 of 2016 (18 July 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 50 of 2016.

BETWEEN: SIANA WATTS AND FRANK PAPAE Claimants
(Representing Mategele tribe of Gatokae, Marovo,
Western Province)

AND: NEW GEORGIA LOCAL COURT First Defendant

AND: BILLY KIOTO Second Defendant
(Representing Gelaratovo tribe of Gatokae,
Marovo, Western Province)

AND: OPIO KIOTO Third Defendant
(Representing the Gelaratovo tribe, Gatokae,
Marovo, Western Province)

Date of Hearing: 18^th July 2017
Date of Ruling: 18^th July 2017

Mr R. Firigeni for the Claimants.
Mr M. Tagini for the Second & Third Defendants.
Mr F. Hollison for the First Defendant.

RULING ON APPLICATION FOR STAY

FAUKONA J: On 18^th July after hearing of the submissions I made an oral ruling and promised to reduce in a form of writing, I now do so.

The background history of the case.

2. There was a dispute concerning Bulo Island as customary land in the Marovo Lagoon, Western Province.
3. The parties are the current Claimant and the current Second and the third Defendants. The Marovo Council of Chiefs which heard the dispute decided in favour of the Claimant on 23^rd October 1996.
4. That decision gave rise to the High Court Civil Case No: 111 of 1996 between the Claimants and the second Defendant.
5. Prior to the High Court case on 4^th November 1996, the current second Defendant filed a Form I, the unaccepted settlement form, as a referral to the New Georgia Local Court.
6. On 7^th February 1997, an interim order was granted by this court that the second Defendant filed a referral to the Local Court within one month.
7. When the Order was made, the High Court would have had in mind that a purported referral had been filed; that what was left was the payment of the fees and the filing of a statement. And no wonder reasonable time as 30 days was given to act.
8. In normal circumstances, a copy of the order would have furnished to the second Defendant and the Local Court Officer in the Western Province to manage the processes and progress the case. It would appear the Defendants including the Local Court had failed equally to progress the case forward.
9. Despite the Court Order and the letter by the Local Court Officer, the second and the third Defendants had failed to respond. Until 8^th September 2014, the second Defendant wrote a letter to the Principal Magistrate (Western) and expressed his grievances on the Chief decision and the reasons for it. By the tone of that letter, it can be treated as a statement required by Section 12(3) of the Local Court Act.
10. Eventually the Local Court case No. 1 of 2015 was filed. In fact there were two serial numbers given for the same case; Local Court Case No. 6 of 1996 and Local Court Case No. 1 of 2015. In reality there were no two cases registered, merely one. It was the Local Court in how it registered the cases because there were two referrals. But no one should be confused, as there is only one case, one subject land and the same parties. Expectedly only one outcome will materialise as a result.
11. On 9^th February 2016, the Local Court issued notices for the hearing of the case at Seghe on 23^rd February 2016.
12. On 18^th February 2016, after receipt of the notice of hearing, the Claimant filed an application for stay that is to halt the hearing on 23^rd February 2016 by the Local Court.
13. On the next day being 19^th February 2016, the same application was filed with the Central Magistrates Court. Subsequently on the same date, the Claimant obtained a Stay Order from the Second Class Magistrate Lelapitu. That Order consequently stayed the conduct and sitting by the Local Court on 23^rd February 2016. Later course in time, the Order was terminated by consent of the parties.
14. Apparently, the eventual termination of the Order by consent served no purpose. Already the order had impacted by staying the Local Court sitting. Now the Claimant returns to the High Court to pursue the application with the same reliefs. There was no amendment to the reliefs, despite the fact that there was mentioned in the submissions that an amendment would be filed to include the relief of permanent stay. The fact is that counsel cannot argue in support or cannot raise an issue not connected and pleaded in the claim.
15. The manner in which the Claimant had pursued both applications seeking the same order in the Magistrates Court and in the High Court now is an absolute abuse of court process. Why should the Claimant continue pursuing the same application in the High Court when he had obtained the same orders in the Magistrates Court? There is no new relief sought so that the jurisdiction of this court can be invoked; there is nothing left for this court to entertain.
16. On the question whether the Magistrate issued the Orders had jurisdiction, in my view, she did not have any jurisdiction to issue such orders. The manner she performed her duties must be scrutinised. Likewise the Counsel who accepted her to preside on the application must be brought to the attention of the law society. It would appear the application was presided over by the Second Class Magistrate Lelapitu was done by personal prior arrangement which should not be encouraged in the general administration of the Magistracy.
17. The basic argument raised by the Counsel for the Claimant is that an order for stay is appropriate because the referrals filed by the second Defendant was not in accordance with the requirements of S.12(3) of the Local Court Act.
18. Firstly, filing of a referral in the Local Court is not barred by time limit provided by Local Court Act, therefore not an abuse of Court process. Secondly, the Local Court had accepted the second referral filed by the second Defendant. Thirdly, the High Court by an Order had made a referral to the Local Court on 7^th February 1997. That simply can be interpreted as if the second and the third Defendants were yet to file Form I unaccepted settlement form. And if there was no written statement accompanied it, must be filed before the case be heard within 30 days.
19. As I have said earlier, a copy of the Order would have been received by the Local Court, Western. The Local Court Officer would have assisted to ensure the case was heard within 30 days by issuing notices to the parties of a set date.
20. I have read the letter by the second Defendant and I have described the content of the letter at paragraph 9 above, that can be treated as a written statement setting out the extent why the decisions of the Chiefs was not accepted and reasons for not accepting it. To prefer a proper written statement be filed cannot always be expected. Sometimes parties are not represented by counsels in the level of the Local Court or someone with better minimum education background.
21. I respect of time line of 30 days for the case to be heard in 1997; cannot be possible in terms of immediate funding of an immediate sitting of the Court. Those days funding for Local Court sitting was made possible by application for imprest. And imprest can only be obtained from Treasury in Honiara. And to obtain an imprest will take several months and cannot be 30 days. In seven years I was administering the Courts in the Western District, and I know the system and the delay it had caused in funding the sittings and the circuits of all the Courts in the District. To make an order for the Local Court to hear a land dispute in a month cannot be possible. The order for immediate sitting is rather mischievous and a misunderstanding of the real situation on the ground.
22. Another important aspect of the application is that there is no cause of action pleaded. The two reliefs that were sought was for stay and for this court to declare that the two Local Court cases filed in the Local Court is invalid.
23. On the second relief the fact there was no statement accompanied the first referral or Form I cannot nullify the referral because there is no provision in the Local Court Act that clearly stated that such failure within certain period render the entire referral invalidate or an nullity. In fact lack of disclosure of such statement had been rectified so the referral was at last accepted by the Local Court. I have dealt with the issue of stay, hence, not necessary to say more.
24. I noted there was delay of eleven (11) years before the referral was put cause list. However in the case of Rini v Silas,^[1] an appeal against Marovo Area Council was pending for 19 years. Apart from that the dispute concerning ownership was referred to the Marovo Local Court, since then the referral case was not heard for 18 or so years.
25. In that case the Claimant intended to invoke the inherent power of the High Court to declare both the appeal to WCLAC and the referral to the Marovo Local Court were null and void and of no effect.
26. The Claimant in this case has an equivalent notion in invoking the inherent power of the High Court. The Court of Appeal in Rini’s case stated a profound position of the law at page 5, paragraph 4, which stated, “...whilst Section 77 (1) given the High Court original jurisdiction, it does not extend to unlimited rights to impose remedies in other Courts. If it is to have such power in respect of other courts, it can only be prescribed by statute. The limit on its power and reason for any such interference is found in Section 84(1) namely that it may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is being duly administered by any such court. Section 77 goes to jurisdiction not to remedies or so it does not give the High Court power to make any orders which intrude on the exclusive jurisdiction of the lower court to determine issues of customary land.”
27. The Court of Appeal further stated on page 6, paragraph 1; “The order the judge made that the appeal in the WCLAC of the referral to the Marovo Local Court be struck out clearly usurped the power of those tribunals to make a decision which should have been in their exclusive domain.”
28. Finally the Court of Appeal stated on page 8, paragraph 1;

“The learned judge in the present case appears to have based his decision to strike on his consideration that the Local Court and customary land appeal court did not have jurisdiction to deal with the issues of delay and inaction. However, that disregards the terms of section 254, which gives those courts the exclusive jurisdiction in all matters and proceedings affecting or arising in connection with customary land as did these delay matters. If such a court is dealing with a matter before it in a manner which it does not appear to be duly administering justice the remedy may to seek some suitable form of injunctive relief through the High Court. The error of the learned judge in this case was to make an order which intruded on the jurisdiction of the lower courts and the order must be set aside.”

29. With the authority of the above case and the reasons stated above, this court cannot make an order to intrude on the jurisdiction of the lower court even on the issue of delay.

Order

1. That the application filed by the Claimant on 18^th February 2016, to stay New Georgia Local Court sitting is refused.

2. That the claim filed by the Claimant on 7^th March 2016 is hereby struck out.

3. That the Claimant to meet the Defendants costs.

4. The New Georgia Local Court must hear the dispute between the parties.
   

The Court

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^[1] (2016) S3CA 3; SICOA CAC 22 OF 2015 (22 April 2016)