Kolikeda v Attorney General [2017] SBHC 99; HCSI-CC 281 of 2016 (5 December 2017)

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FRED KOLIKEDA & OTHERS -V- ATTORNEY GENERAL,
(Claimant) ERIC KITURU GHEMU
(1^st 2^nd Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No. 281 of 2016 and 276 of 2017

Claim for order quashing the decision of the New Georgia Local Court dated 29 February 2016 by way of judicial review.

By way of statement of case [“case”], these claimants deny the finding by the New Georgia Local Court given on the 29 February 2016 by which the Court declared that Poi-Ikusu customary land is part of the whole Gevala tribal land owned by the 1^st defendant representative of the Gevala tribe. The following table in the case shows the earlier proceedings leading to this claim for judicial review.

Seq no	Tribunal	Case no.	Decision/Order	Date of Decision	Status
1	Marovo Native Ct	4/1962	Namusu won; Mathew lost		Invalidated By High Ct
2	Marovo Local Ct	3/1985	Kolikeda Jim Won Poi-ikusu	25 Apr 1985	Decision Set aside
3	WCLAC	5/1985	Set aside MLC decision and directed case to commence denovo	9 Apr 1986	No appeal
4	Marovo Chiefs		Poi-ikusu belonged to Kolikeda Jim	8 Jan 1987	No referral to Local Ct
5	High Ct	93/95	MNC in 1962 had no jurisdiction	10 Sep 2008	No appeal
6	High Ct	276/2007	Mandamus directed Marovo Local Ct to hear land case	22 Sep 2008	Marovo Local Ct did not deal with case
7	New Georgia Local Ct	11/1996	Poi-ikusu is part of Gevala tribe owned by Eric Ghemu and Gevala tribe	29 Feb 2016

By para. 5.0[d] of case the claimants say:-
“The High Court in cc. 276/2007 directed the Marovo Local Court to deal with the Poi-ikusu land dispute. It however transpires that it was the New Georgia Local Court that dealt with the dispute, not the Marovo Local Court. The claimants aver that the New Georgia Local Court did not have jurisdiction to deal with Poi-ikusu land apart from the fact that it was not authorized by the mandamus order made by the High Court.”
This rather sets out the principle issue before the court.

The claimants plead as representatives of the Poi-ikusu tribe. In their case, they say the Western Customary Land Court decision no. 5/1985 directed the claim to be heard de novo. In the case the claimants state by operation of law as a consequence of the Local Court Amendment Act, the proceedings referred back by the WCLAC “could only be commenced de novo before chiefs by operation of law.” The claimants go on to state no referral had been made to the Local Court by appeal from the decision of the Marovo Chiefs made on 8 January 1987 and consequently the Chiefs decision, having been unchallenged, still stands. The claimants also say it is not clear whether the High Court in cc. 276/2007 had been appraised of the matters leading to the Marovo chiefs decision of the 8 January 1987.

The schedule, above reflects the actual order given by way of mandamus by Justice Izuako on the 22 September 2008. Her Lordship ordered;-
“The Marovo Local Court and its officers do carry out all necessary actions to arrange a sitting of the Local Court within 30 days to rehear the Poi-ikusu land case as ordered by the Western Customary Land Appeal Court on the 9 April 1986;”
Whilst the 30 day requirement of the order has been breached, the claimants rather rely on the argument in support of the act of determination of ownership by the New Georgia Local Court as beyond jurisdiction. For while the warrant establishing the New Georgia Local Court expressly cancelled both Marovo and Roviana Local Courts, the jurisdictional area in the warrant of the newly established court was expressed to be “in the area of any of the wards of the New Georgia (constitution of wards) order.”^[1] By sworn statement, James Aquillah says the 2010 Election Political Map clearly shows Ward 23 is not situated in the New Georgia Constituency, rather it is in the Marovo Constituency. He has provided a coloured map from Ministry of Lands and Survey named, “Marovo Constituency No. 02-09; 2010 election polling stations.” Whilst no Ward 23 is shown on the map, I am willing to accept Vangunu appears to be part of “Marovo Constituency”.

The Local Court case no. 11/1996 decided by the New Georga Local Court on the 29 February 2016, recited: - “The previous court litigants have already passed since this case is pending before the court for quite a long time but fortunately their successors or representatives are present to continue with the case.”

I am satisfied the local court accepted the High Court’s mandamus order as authorizing it to adjudicate the dispute, since the Chief Justice’s warrant establishing the New Georgia Local Court was dated the 26 May 2008 and predated the mandamus Order of Izuako J by some months. When the local court eventually heard the dispute in 2016, the Marovo Local Court had long passed from existence. In effect, the Order of Izuako was incapable of implementation for it specifically named the Marovo Local Court which had ceased to exist by the earlier order of the Chief Justice. Whilst Her Lordship, by clause 1, stated; “Order is granted as prayed”, I accept the prayer to which she referred in the amended ex parte summons, was that claiming the mandamus order, not the 1^st claim, seeking leave for an order of certiorari in relation to the chiefs decision heard on 19 November 1986 given on the 8 January 1987. I should say the Order acknowledges Bridge, Lawyers for the applicants, those representing the Gevala tribe but no representation is recorded for the named respondents to the applications made ex parte, Letipiko Balesi [1^st respondent], Marovo Council of Chiefs [2^nd respondent] or the Attorney General [named as representative of the Local Court]. Whilst the Order may be seen to be nugatory, it has the seeds of its genesis in the decision of the WCLAC given on the 9 April 1986. For that court ordered an earlier decision of the Local Court to be struck out and directed the case to “commence de novo”. It also ordered;- “No person is to cultivate or use Poi-ikusu land in any way until a final and conclusive decision has been made by a court of competent jurisdiction.”
Putting aside the WCLAC decision to freeze use of the land [presuming judicial facility in resolving the dispute expeditiously], I accept reference to “a court of competent jurisdiction” includes the local court [in the absence of appeal under the Land and Titles Act], or the appropriate CLAC. In these circumstances reference to “a court” may not include the Chiefs tribunal from which aggrieved persons may appeal.^[2]

The issue argued by the claimants is over the geographical jurisdictional limits of the New Georgia Court for the warrant expressly delineates the area by reference to the New Georgia (constitution of wards) area. The difficulty for this court is that no evidence has been given of the New Georgia (constitution of wards) area contemporaneous with the date of the Chief Justices Warrant. May it have included the Marovo at that time in 2008?
Of course the claimant’s reason to pursue this cause is by reason of the decision of the Local Court given on the 29 February 2016 was against their claim of customary ownership. In those proceedings, the same parties argued three issues; was Poi-ikusu part and parcel of Gevala tribal land (representative Eric Kituru Ghemu); is Poi-ikusu a separate land and not part of Gevala land; and who owns in custom, Poi-ikusu land. Chief Eric Kituru Ghemu and the Gevala tribe were successful with respect to the issues.

Whilst I accept Mr. Suri’s argument in relation to the reference to the New Georgia Local Court by Izuako J as erroneous, I do not accept the Local Court decision should be quashed for that reason. As I have shown, WCLAC by case 5/85 had much earlier directed re-hearing of the dispute by a court of competent jurisdiction. The WCLAC was not satisfied the material before the court from which appeal had come, was in all justice, sufficient for the purposes of a reasoned decision. The order in relation to the appeal, then was to direct a hearing de novo after striking out the appeal. The hearing de novo I find lies with the local court for that is the effect of the WCLAC direction. I consequently find the decision by the Marovo Chiefs given on the 8 January 1987 is not a decision binding the parties for the earlier decision of the WCLAC effectively precludes further consideration by the chiefs. For the local court has full power in terms of s. 13 of the Local Courts Act as it deems necessary including as an alternative, “referring the dispute to the chiefs with such directions as it may consider it necessary” and by s. 254(1) of the Land and Titles Act the local court is the “court of competent jurisdiction”. [s. 13(d)] I do not accept Mr. Suri’s argument on this point. The decision of the Marovo chiefs may not stand in conflict with the earlier order of the WCLAC.
I am left with the argument over the geographical area of the New Georgia Local Court. Mr. Pitakaka for the 2^nd defendant, has placed a number of arguments before me for consideration.
1. Numerous cases concerning Marovo land have been heard before the Roviana Local Court since 2008.
2. The claimants in these High Court proceedings conceded jurisdiction by appearing and arguing their case in the New Georgia Local Court. No objection to jurisdiction was made at that time.
3. Since the Marovo Local Court warrant had been cancelled by the succeeding warrant creating the New Georgia Local Court “there cannot be a vacuum”.
4. If this court is to accept the claimants submission and refer land case no. 11/1996 to an appropriate local court, then that would be the New Georgia Local court.

Mr. Suri, for the claimants, submits the appropriate orders would be to; a] quash the decision of the New Georgia Local Court given on the 29 February 2016; b] discharge the mandatory order by Izuako J on 22 September 2008; c] declare that the decision of the Marovo chiefs dated 8 January 1987 is binding on the parties; d] make a declaration that future litigation over the land in dispute should be by referral to an appropriate local court.

I have already dealt with Mr. Suri’s b] and c]. The quandary these claimants face can be seen when one considers the effect of granting a], for this court may not substitute its findings in relation to the dispute determined by the New Georgia Local Court on the 29 February 2016, it may only refer the dispute to the entity able to resolve the matter fully and directly, and in these circumstances, I am satisfied it would be the Customary Land Appeal Court established to deal with disputes in this area. For by s. 256 of the Land and Titles Act;
“Section 256-(1) Any person aggrieved by any order or decision of a local court given in the exercise of its jurisdiction under section 254 ..., may within three months, from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.”

By s. 254[2], a local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act.

The WCLAC reference to “a court of competent jurisdiction” is in fact, the New Georgia Local Court, I accept this court is imbued with such power to deal with such reference. For the Act, s. 254[1], does not presume to qualify the jurisdictional limits of the local court [beyond the provisions of the section, itself] so that where by subordinate act the warrant creating the New Georgia Local Court presumes to detail a geographical area by reference to other subordinate act under statutory electoral provisions allowing delineation of particular Ward areas, [such other subordinate act outside the control of the Chief Justice], the predominating law shall be the Land and Titles Act. For the instrument by which the New Georgia Local Court was created violates the express power given the local court by legislation if it were to be read so as to circumvent by subordinate acts of others wholly unconnected with the purpose of the warrant, the exclusive statutory power given to local court.

Where a local court is created by warrant and that court presumes power pursuant to such warrant, with the concurrence of those parties concerned with the proceedings, to determine such matters falling to be considered in terms of s. 254[1] of the Act, then no cause for judicial review arises in the circumstance where after the event, an aggrieved party seeks to rely on uncertainty of descriptive geographical areas in the warrant creating the court, (descriptive areas reliant on subordinate acts under rules or regulations wholly unconnected with the constitutive power of the court by statutory right given by s. 254[1]).

I accept Mr. Pitakaka’s argument concerning “a vacuum”. Where possible, this court should facilitate the underlying intent of the Chief Justices grant of the warrant to the New Georgia Local Court, a court created on the face of the warrant to subsume the powers of the Marovo and Roviana local courts. The primary purpose of the warrant was to create the substituted court in place of the two named courts whose warrants were thereupon cancelled.

I find the reference in the warrant to jurisdiction in the area of any of the wards of the New Georgia (constitution of wards) order, to be so uncertain that this court may have recourse to the underlying purpose of the warrant, to subsume those earlier courts in the fresh court. When I look at the instrument, the warrant, it shall be read to bring the particular power in the local court (to encompass the earlier powers in the Morovo and Roviana courts over lands about these known areas), within the context and scheme of the Act; to provide an exclusive jurisdiction affecting or arising in connection with customary land. It consequently may not be read to exclude lands from the scheme of the Act, rather read to afford the local court jurisdiction pursuant to s. 254(1). The Local Court entertained the dispute, exercising power accorded it under the Act. The language of the Act is quite clear and should be read in its natural sense. The warrant may in this case be read to conform with legislation.^[3]

Any right of appeal in this case needed to be exercised by an aggrieved party within 3 months of the determination on the 29 February 2016. The claim was filed on the 29 June, one month late. There is no discretion apparent in s.256 of the Act whereby, in terms of our Rules of Court, leave may be given to extend the time for appeal.

Since the time limited for appeal has expired this court should be wary of allowing appeal by other means. The findings of the New Georgia Local Court remain extant.
For all these reasons, I decline to exercise my discretion in terms of Rule 15.3.18. I decline to hear the claim. It shall be struck out in accordance with the Rule. The 2^nd defendant shall have his costs of the proceedings from the claimant.

^[1] See annex “SK-3” to sworn statement in support by Suellen Kofana filed 15 October 2016
^[2] Simbe v East Choiseul Area Council [1999] SBCA 9
^[3] Inland Revenue Commissioners v Herbert [1913] UKLawRpAC 18; [1913] AC 326

High Court of Solomon Islands

Kolikeda v Attorney General [2017] SBHC 99; HCSI-CC 281 of 2016 (5 December 2017)