Bofanata v Samosia [2017] SBHC 74; HCSI-CC 332 of 2016 (27 March 2017)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: BOFANATA & OTHERS - 1^st Claimant
(Representing Usualai Tribe)

LANETELIA & DAONANITA - 2^nd Claimant

(Representing Baekwa Tribe)

AND: SAMOSIA AND WALESUA - 1^st Defendant
(Representing Kwaleungga and

Kwalenuru Tribes)

ELIJAH TOLOAU - 2^nd Defendant
(Representing Rafea Tribes)

COMMISSIONER OF LANDS - 3^rd Defendant

REGISTRAR OF TITLES - 4^th Defendant

Date of Hearing: 7 March 2017
Date of Judgment: 27 March 2017

Mr. R. Firigeni for claimant
Mr. W. Rano for 1^st & 2^nd defendants
Attorney-General by Mrs. R. Soma for 3^rd & 4^th defendants

Ruling on application for Judicial Review pursuant to R.15.3 of the Civil Rules of Court.

Brown J:
This claim originally was commenced by category A proceedings, seeking a declaration that ruling in HCSI – CC’s 226 of 2009, 324 of 2009, and 428 of 2009 have “not ousted the primary customary ownership interest of the claimants to Talifu land as found by the Lafari House of Chiefs in August 1999” and consequently declarations of rightful customary ownership by the tribe of the 1^st and 2^nd claimants to particular lands.
By leave granted on the 24 February 2017 the claimants have amended their claim to more properly recognize the proceedings as falling within Category C of the Rules by seeking judicial review of earlier decisions.

The Claim has accordingly posed the question whether, by S. 66 (4) of the Lands and Titles Act, the 1^st and 2^nd claimants are prevented from seeking declarations from this court that the 1^st defendants are bound by the Lafari (decision) of the House of Chiefs (given) in August 1999.

By statement of case the claimants detailed the litigious history of the particular land.
By paragraph’s 10-15 of the case, the claimants plead their right to judicial review.

The paragraphs are set out:-

“10. The First Defendant, knowing that they had failed to attend the said chiefs hearing, choice not to refer the chiefs decision to the Malaita Local Court to obtain a different decision. In fact the First Defendants refused to attend following advice from their lawyer.

11. The First Defendant rather successfully participate and vindicated their claim of ownership at the Acquisition hearing in December 1999, Magistrate Court Appeals in appeal case No: 19/2000, and the High Court in civil case No.226/2009, 324 of 2009, 428 of 2009.
12. The High Court on 20^th July 2016, dismissed all appeals and upheld the decision of the Magistrate Court in the above appeals.
13. The First Claimant did not participate in the hearing of the appeals in the High Court, as their notice of appeals was filed out of time and was dismissed by Order of the Court on 5^th November 2010.
14. The First Second Claimant claims that notwithstanding the ruling in the High Court Land Appeals in Civil No’s: 226/2009, 324 of 2009, 428 of 2009, the First Defendant are bound by the decision of the Lafari House of Chiefs of 5^th August 1999, as to the question of ownership of Talifu customary land, also known as Bina Talifu customary land.
15. Consequently, the First Defendant the right to lease or sale the land to the Commissioner of Lands, pursuant to the ruling of the court in the above appeals is subject to the First and Second Claimants right of ownership.”
    

It is plain much of the case would rely on hearsay but putting that aside, the gist of the claimants denial of right in these particular defendants is clear.

The defendants, the 1^st and 2^nd represented by Mr. Rano and the 3^rd and 2^nd by Ms. Soma have relied on defences previously filed. Such defences address the 1^st amended claim, which, while subsumed in the application for judicial review, need be considered since the defences address matters relevant to the factors this court must address when considering the requirements to be satisfied under Rules 15.3.16 & 15.3.19 before proceeding to a judicial review of decisions made under an Act or subsidiary legislation. The Act, the claimants say, is the Land Titles Act, although I am also minded to have regard to S.11 of the Local Courts Acts.

To assist with understanding, the paragraphs 18-21 of the “amended Claim” is set out:-

“18. The Claimant contents that the First Defendants are bound by the decision of the Lafari House of Chiefs in August 1999.

19. The Claimant claims that the ruling in High Court Land Appeals No. 226/2009, 324 of 2009, 428 of 2009, is not conclusive evidence of ownership of the Bina/Talifu mainland and sea area pursuant to S 254 of the Land and Titles Act Cap 133, and as such, do not convey upon the First and Second Defendants the right to lease or sale the land to the Commissioner of Lands for the development of the industrial and sea port.
20. The Claimants further claims that, it is trite law in this jurisdiction that chiefs and or local court decision are decision inter-parties.
21. The Claimants claimed that the Second Defendant claim of ownership of Talifu customary land had been determined against them in Local Court (Malaita) LC No. 4 of 1982, Malaita CLAC 83/C/1, and High Court of Solomon Islands CC No. 13/84, in favour of the current First Defendant, and hence, the Second Defendant are bound by these decision.”
    

The 1^st defendant defence was:-

“11. As to paragraph 19 of the Further Amended Claim, the First Defendants say that:

1. The claim is an attempt by the Claimant to re-litigate an acquisition proceedings that been completed;
2. The claim is an appeal in disguise;

100. Res judicata; and

4. Frivolous and vexation,

hence nothing more than an abuse of process.
12. Paragraph 20 is denied and is a wrong proposition in law.

13. As to paragraph 21 of the Further Amended Claim the First Defendants say that the decisions held that the Second Defendants held secondary interest and also held that they are also entitled to jointly lease or sell the land to the Third Defendant.”
    

The 2^nd defendants defence was:-

“12. As to paragraph 19 of the Further Amended Claim, the First Defendant say that:

1. The Court held that right being in rem binds all parties;
2. No appeals were made against that ruling;

100. The claim is an attempt by the Claimants to re-litigate an acquisition proceedings that had been completed;

4. The claim is an appeal in disguise;
5. res judicata; and
6. Frivolous and vexation,

hence nothing more than an abuse of process.
13. Paragraph 20 is denied and is a wrong proposition in law.

14. As to paragraph 21 of the Further Amended Claim the Second Defendant says that the decisions held that the Second Defendants held secondary interest and also held that they are also entitled to jointly lease or sell the land to the Third Defendant.”
    

The Attorney defence says:-

“2. Alternatively, the Third and Fourth Defendants state that they;

1. Have no knowledge of paragraphs 1, 2, 3 and 4 of the statement of case.
2. Admit paragraphs 5, 6, 7, 8, 9, 10 and 11 of the statement of case.
3. Have no knowledge of paragraphs 12, 13, 14, 15, 16, 17 and 18 of the statement of case.
4. Deny paragraph 19 of the statement of case and further states that the ruling in the High Court case 226/2009, 324/2009 and 428/2009 are binding on the claimants.
5. Deny paragraph 20 of the statement of case and further states that the land acquisition process was already completed and that the matter had already been settled.
6. Have no knowledge of paragraph 21 of the statement of case.”
   

Mr. Rano has filed submissions seeking to have these proceeding struck out “ex debito justitiae” and by 17 pages of well argued reasons, says why. He has traced the history as the statement of case has deposed, recounting the event leading to the acquisition process, events including these claimants participation.

“On the 8 July 2010, the parties to the various appeal proceedings entered into a consent order. The order essentially paves the way to allow the acquisition process to be completed and titles created.
The 1^st and 2^nd claimants were parties to the consent order. The persons who are successful in the appeals will eventually become the registered owners and trustees in the Trust Board”

Judgment in the appeal cases 226 of 2009, 324 of 2009 and 428 of 2009 was handed down on 20 July 2016. The judgment accepted findings of ownership has been made, and appeals over ownership, by the 1^st and 2^nd claimants were dismissed. The basis of this Court judgment was that finding in rem by the previous courts or adjudicating authorities settled the ownerships question.
There has been no appeal from that decision made on the 20 July 2016.
Mr. Rano argued that this Claim then must fail for the issue in contention, the standing of the earlier Lafari Chiefs’ decision concerning the particular land has been deal with in the High Court decision of the 20 July 2016. These claimant tribes appeals were finally determined by that judgment.

By the hierarchical system of courts in the Solomon Islands, I accept Mr. Rano’s argument that the claimants are prevented from further proceeding by way of judicial review, in accordance with the rules of res judicata.

But the decision of the 20 July 2016 effectively gave rise to a right of appeal. No right has been exercised.

The arguments of the counsel for the Attorney are ad idem with Mr. Rano.

While the claimants rely on the findings of the Lafari Chiefs, such reliance in the light of the court proceedings since 1999, have extinguished the claimants’ plea to rely on that decision. While Mr. Rano has gone to some length to show the Lafari decision is a nullity (for the declaration in the claim seeks a finding to the contrary) since the argument over the particular land has been subsumed by the appeals and decision of the 20 July 2016, I need make no finding on that issue, for the basis of the claim for review avoids the fact of this court findings on the 20 July 2016. For by that finding these claimants are, by estoppel res judicatam, prevented from pleading otherwise.

The Rules, R. 15.3.18 provide matters by which judicial review may proceed otherwise the claim shall be struck out. To institute a claim for judicial review at this time when the substantive rights of appeal have passed, is contrary to those principles in O’Reilly v Mackman^[1], principles appropriate and applied in this jurisdiction.

For the reasons set out, I find the claimants have no arguable case.

Customary standing to argue a claim amongst the tribes perhaps, may subsist, but in so far as the rights to this particular land are concerned, or to benefits which may flow, rights have been settled by operation of law.

The claims for declarations are refused. The proceedings are consequently struck out pursuant to R. 15.3.20.

The defendants shall have their costs on the 3^rd schedule basis.

__________________
BROWN J

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^[1] (1983) 2 AC at 254