Kioto v Watts [2019] SBHC 19; HCSI-CC 125 of 2018 (22 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kioto v Watts
Citation:
Date of decision:	22 February 2019
Parties:	Billy Boe Kioto and Opio Kioto v Siana Watts, New Georgia Local Court
Date of hearing:	25 January 2019
Court file number(s):	CC 125 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Dismiss the amended claim Issues raised in the amended claim are referred to WCLAC to be resolved in Land Appeal Case No 12 of 2018 Cost on standard basis against claimant
Representation:	Mr M. Tagini for the Claimant ( No Appearance) Mr. D Marahare for the First Defendant No Appearance for Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule, 15.3.18(a) (b), Land and Titles Act, s254 ,257
Cases cited:	Lonsdale v Attorney General, Holo v Mapo Development Company, Bavare v Nerapa

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 125 of 2018

BILLY BOE KIOTO AND OPIO KIOTO
Claimant

V
SIANA WATTS
First Defendant
(Representing the Mategele
Tribe)

NEW GEORGIA LOCAL COURT
Second Defendant
(Representing by the Attorney General)

Date of Hearing: 25 January 2019
Date of Ruling: 22 February 2019

Mr M. Tagini for the Claimant (No Appearance)
Mr. D Marahare for the First Defendant
No Appearance for Second Defendant

RULING ON CHAPTER 15 CONFERENCE

1. At hearing Counsel Makario was absent without prior notice. Court heard submissions from Counsel Marahare, on behalf of first defendant. Court directed Mr. Marahare to write to Mr. Makario requesting him to file written submissions inside one week from today. A copy of Mr. Marahare’s letter, is in file – letter dated 28/01/2019. There is no written submission from counsel Makario as of today (12/02/2019).
2. At this conference, it is incumbent on the claimant to satisfy the court on four matters under Rule 15.3.18 (a) (d). The four matters are: claimant has an arguable case; claimant is directly affected by the subject matter of the dispute; undue delay and no other remedy to resolve the dispute fully and directly. Claimant must satisfy the court on all four matters; before the amended claim can reach trial (trite law). Counsel Marahare opposed two matters only that claimant has no arguable case and there is an alternate remedy. Counsel submitted claimant has no arguable case; because there is another remedy that will resolve this dispute fully and directly. And on another remedy; his client has already referred the Local Court decision^[1] under scrutiny here; to the Western Customary Lands Appeal Court (WCLAC). Notice of Appeal is exhibited in sworn statement evidence^[2].
3. Court is of the view that materials show there is an arguable case. With arguable case, the court is looking to see whether some points for argument are disclosed for the court to entertain in a substantive hearing at trial^[3]. The arguable case/issue here is non-attendance by the President and two other justices at the second survey carried out in March 2018; as alleged in the amended claim. Amended claim also raised the arguable case/issue of a judgment delivered which cannot be truly said to be from the court; as the justices had very little time to read and comment on the written judgment prior to delivery. These are arguable issues for trial raised from the amended claim and sworn statements.
4. However these issues could be resolved by the WCLAC. Counsel Marahare’s client who were defendants in the Local Court; currently have an appeal pending before WCLAC. The issue on survey which is closely tied to the substantive decision appealed; should also be addressed by WCLAC. For a decision on customary land dispute is incomplete without a boundary demarcation^[4]. Claimants (herein) will have to make a cross appeal on survey issues; raised in the amended claim, to WCLAC. Alternatively, I can refer issues of survey and justices not reading the judgment prior to delivery to WCLAC. That is a court of law and should have competent jurisdiction to resolve survey issue and the attack on the judgment of New Georgia Local Court. I therefore find that there is another remedy that will resolve this dispute fully and directly. According to Bavare^[5] matters to do with customary land disputes; have an exclusive adjudicatory hierarchy provided by statute^[6] to deal with such disputes (Chiefs Local Court Customary Lands Appeal Court High Court and Court of Appeal on points of law and procedural deficiencies only). This is not to say that High Court cannot intervene in appropriate cases of judicial review claim; at any stage of the hierarchy process, including at the informal chiefs level. For this amended claim however the appeal pending before WCLAC can fully and directly resolve the issues raised without resorting to judicial review.
5. Accordingly, Court orders are:
   • 5.1 Dismiss the amended claim.
   • 5.2 Issues raised in the amended claim are referred to WCLAC to be resolved in Land Appeal Case No 12 of 2018.
   • 5.3 Cost on standard basis against claimant.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] New Georgia Local Court decision dated 9^th March 2018.
^[2] Sworn statement of Frank Papae filed 24/01/2019; Exhibit FP 1.
^[3] Lonsdale v Attorney General [2013] SBHC 39; HCSI-CC 356 of 2012 (17^th April 2013).
^[4] Holo v Mapo Development Company [2013 SBHC 40; HCSI-CC 92 of 2011 (24^th April 2013).
^[5] Bavare v Nerapa [2011] SBCA 22; CAC-CAC 21 of 2011 (25^th November 2011).
^[6] Sections 254, 257 of Land and Titles Act (Cap 133) as amended as read with Sections 12 and 13 of Local Court Act (Cap 19).