Togana v Gitoniu [2018] SBHC 50; HCSI-CC 198 of 2017 (24 May 2018)

SOLOMON TOGANA AND CHARLES MANELE 1st 2nd claimant

V

SOLOMON GITONIU ISHMAEL NIAHAI, CATHRINE ENO AND SALOME KAGEA VUNAGI, Belaga House of Chief 1st 2nd 3rd Defendant

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 198 of 2017

BETWEEN:	SOLOMON TOGANA AND CHARLES MANELE (Representing their Hogokama (Togokama sub-tribe) ward 6, Gaeta District, small Ngella, Central Island Province)	-Claimants
AND:	SOLOMON GITONIU ( Representing Gaobata tribe, small Ngella, Central Island Province)	-First Defendant
AND:	ISHMAEL NAHAHI, CATHRINE ENO AND SALOME KAGEA VUNAGI ( Representing their Hongokiki(Gaisekua sub-tribe) ward 6, Gaeta District, small Ngella, Central Island Province)	-Second Defendants
AND:	BELAGA HOUSE OF CHIEF ( Representing chiefs of ward 7, Belaga District, small Ngella, Central Island Province)	-Third Defendant

Date of Hearing: 15^th March 2017 and 4^th April 2018 (claimants’ written submission).
Date of Decision: 24^th May 2018.

Mr. E. Toifai for the Claimants.
Ms. A. Willy for the First and Second Defendants.
No Appearance for the 3^rd Defendant.

KENIAPISIA; PJ:

RULING ON CHAPTER 15 CONFERENCE

1. Claimants seek quashing orders or nullity orders in a judicial review claim against the decision of Belaga House of Chiefs^[1] (3^rd defendant), in respect of Babanalako customary land. Claimants instead seek to affirm the decision of Gaeta House of Chiefs^[2] in respect of the same Babanalako customary land, in Ward 6, Gaeta District, Small Ngella, Central Islands Province. Claimants also seek a permanent stay order on Land Case No. 1 of 2017, pending before Ngella local court (2^nd defendant’s referral).
2. Being a judicial review claim, court conducted a chapter 15 conference. At this conference, claimants must satisfy the court on 4 matters, before the court proceed to hear the claim. The 4 matters, in the order, they appear in Rule 15.3.18 (a) – (d) are: claimants have an arguable case; claimants are directly affected by the subject matter of the claim; there is no undue delay and there is no other remedy that resolves the dispute fully and directly.
3. Court is of the view that the claim can pass the first 3 matters in Rule 15.3.18 (a) – (c). That is to say there is an arguable case, because issues for argument at trial are disclosed in the pleadings and supporting sworn statements (ss). There is no undue delay. And claimants are directly affected by the subject matter of the claim. Case law, however, says that all 4 matters must be satisfied, before court can hear the claim. I will look at the 4^th last matter on whether another remedy is available to resolve the dispute directly and fully, under statute or to be deduced from the nature of the dispute.
4. I look first at the nature of the dispute and ask what are the issues and/or reliefs sought? I briefly touched on the reliefs in paragraph (1) above and need not repeat. On the issues, I found assistance from counsels written submissions on the 1^st matter of arguable case. Issues disclosed from arguable case submissions, deduced from pleadings and supporting ss, I summarised them as follows:-

(i). Whether Belaga House of Chiefs in Ward 7 had jurisdiction to decide on Babanalako customary land, when the said land in dispute, is in Ward 6 of Small Ngella?

(ii). Whether Land Case No. 1 of 2017, pending before Ngella local court, was validly referred under Section 12 (3) of the Local Court Act (Cap 19)?

(iii). Whether parties have consulted and consented on Belaga House of Chiefs to hear the dispute over Babanalako customary land?

(iv). Whether two House of Chiefs can hear and determine the same dispute (Gaeta Chiefs Decision of 2014 and Belaga House of Chiefs Decision of 2016)?

(v). Conflict of interest of the said two House of Chiefs to hear this dispute?

5. In all of the above-mentioned issues, this Court is of the view that there is another remedy available under statute to resolve these issues. And that is through referral of this dispute to Ngella local court under the Local Courts Act (Cap 19) – Section 12 (1) (a) – (c); Section 12 (2) and Section 12 (3) (a) – (b). This is not an appeal to local court - for the chiefs or other traditional means of settling customary land disputes are not a court of record^[3]. Local court is the first court of instance for customary land disputes.
6. Once a referral of this dispute is validly made to Ngella local court under the above provisions of Section 12, Ngella local court will seize jurisdiction, if it is satisfied the dispute has been referred to the chiefs and that all traditional means of resolving the dispute have been exhausted without an acceptable settlement^[4]. Two house of chiefs decisions issue and conflict of interest issue will provide best evidence that the dispute has been before the chiefs and that all traditional means of resolving the dispute have been exhausted without an acceptable settlement.
7. On a valid referral to Ngella local court issue, now that it has adjourned, it has the opportunity to ensure the dispute is properly referred to it under the provisions of Section 12 of the Act. For that to happen, one of the parties (claimants or 2^nd defendants) have to refer the dispute to Ngella local court under Section 12. In referring the dispute, the referring party must as a mandatory requirement, complete the required particulars in Form I to the Schedule of the Act (Unaccepted Settlement Form I^[5]), in reference to either the Belaga House of Chiefs decision or Gaeta House of Chiefs decision, depending on who is making the referral. The other mandatory requirement for a valid referral is to lodge a written statement setting out the extent to which the chiefs decision is not acceptable plus the reasons for not accepting the decision^[6]. And of course payment of fees. I refer counsels to paragraphs 14, 15 and 16 of my recent decision in Civil Case 611 of 2015.
8. Once the Ngella local court has seized jurisdiction after proper referral under Section 12, that court has power to hear the dispute de novo, if required^[7]. This will resolve issues on proper house of chiefs to hear the dispute (jurisdiction issue), conflict of interest and proper notice etc. Ngella local court may under its powers refer the matter back to chiefs with appropriate directions^[8]. This will solve issue of proper chiefs panel in the locality to hear the dispute. Ngella local court is closer to the locality of this dispute and will know the best way to handle issues like locality (jurisdiction issue), conflict of interest and lack of proper notice. It may even hear the dispute de novo.
9. Court is therefore satisfied that another remedy is available under the Local Court Act (Cap 19) to resolve the issues raised in the claim, fully and directly, before Ngella local court. Ngella local court has already registered this dispute and had adjourned it. Court will not interfere with that court performing its role; unless justified grounds exist.
10. Accordingly, the orders of the Court are:

10.1. Claim is dismissed.

10.2. Costs against claimants on standard basis.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Which decision was dated in year 2016.
^[2] Which decision was dated in year 2014.
^[3] Ugra –v- Isabel Local Court (2012) SBHC 56; HCSI-CC 405 of 2011 (16^th July 2012).
^[4] Section 12 (1) (a) – (c) of the Local Court Act (Cap 19).
^[5] Section 12 (2) of the Local Court Act (Cap 19).
^[6] Section 12 (3) (a) – (b) of the Local Court Act (Cap 19).
^[7] Bavare –v- Nerapa (2011) SBCA 22; CA-CAC 21 of 2011 (25^th November 2011).
^[8] Section 13 (e) read with Section 14 (1) of the Local Court Act (Cap 19).