Hikinao v Marite [2020] SBHC 113; HCSI-CC 701 of 2019 (18 September 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hikinao v Marite
Citation:
Date of decision:	18 September 2020
Parties:	Mathew Hikinao v Paul Marite, Silas Hououou, Henry Star Dora
Date of hearing:	15 September 2020
Court file number(s):	701 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:	Malaita Customary Land Appeal Court
Order:	1. Appeal dismissed. 2. Cost against the Appellant to be tax if not agreed.
Representation:	Pitakaka m: for the Appellant Haurii M: for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S.256 (3) [cap 133], Land and Titles Act S.256 (1) [cap 133], Local Court Act S.12
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 701 of 2019

BETWEEN

MATHEW HIKINAO
First Appellant

AND:

PAUL MARIT
First Respondent

AND:

SILAS HOUOUOU
Second Respondent

AND:

HENRY STAR DORA
Third Respondent

Date of Hearing: 15 September 2020
Date of Judgment: 18 September 2020

Pitakaka M. for the Appellants
Haurii M. for the Respondent

JUDGMENT

Kouhota PJ:

This is an appeal pursuant to section 256(3) of the Land and Title Act (LTA), Cap 133 against the decision of the Malaita Customary Land Appeal Court judgment delivered on 16^th November 2019. There are four grounds of appeal;

1. The Malaita Customary Land Appeal Court erred in fact and in law to join Henry Star Dora as new Appellant to Malaita Customary Land Appeal Court Case No. 10 of 2019.
2. The Malaita Customary Land Appeal Court erred in fact and law to join Henry Star Dora as a new Appellant party to Malaita Customary Land Appeal Court Case No.10 of 2019 as it was statute-barred.
3. The Malaita Customary Land Appeal Court erred in fact and law to order that Mr Henry Star Dora be included as a party to the proceeding in Local Court.
4. The Malaita Customary Land Appeal Court erred in fact and law to order the Local Court to hear the matter de novo when the only outstanding issue where the MCLAC found the Local Court to have erred was not to have conducted physical survey of the disputed land.

The Appellant seeks that;

1. the appeal be allowed,
2. the judgment of the Malaita CLAC to be set aside to effect that,
   • It joined Mr Henry Star Dora as a party to Malaita CLAC Case No.10 of 2019,
   • it order Mr Henry Star Dora be included as a party to the proceeding in the Local Court; and
   • it orders Malaita Local Court to hear the matter de novo.

Appeal grounds 1, 2 and 3 can be disposed of together as they all relate to the same issue. The Appellant assertion is that, since Henry Star Dora is not a party to the original action before the chief and the Local Court, he should not be added as a party to the CLAC proceedings. I find it difficult to agree to that assertion, Section 256 (1) of the Land and Title Act, Cap 133 does not restrict appeals to the CLAC, only to the parties before the Local Court. Section 256 (1) simply stated any person aggrieved by the decision of the Local Court may appeal to the CLAC within 3 months of the date of decision. Section 256 (1) uses the word, ‘any person,’ not a party. The provision, therefore, does not restrict appeals only by the parties to the Local Court but leaves it open to any person aggrieved by the decision of the Local Court whether he is a party to the Local Court proceedings or not. I think that is a reasonable interpretation because the Local Court may err as in the present case when its decision covers land owned by persons who are not party to the Local Court proceeding. In this respect, I find that Mr Henry Star Dora is entitled to appeal against the Malaita Local Court decision because although he was not a party to the Local Court proceeding, he was aggrieved by the Local Court decision.

The materials show Mr Dora applied to be a party to the appeal to the CLAC because he was aggrieved by the Local Court decision which covers customary land belonging to his tribe when he was not a party to the Local proceeding.

Appellant asserts that when Mr Dora was joined as a party, it was out of time. That cannot be possible because Mr Dora does not file any appeal, it was filed by the other Appellants who are the Respondent in this matter. Joining a party to the appeal proceeding is not the same as filing an appeal so time cannot run against Mr Dora. I am satisfied that Mr Dora is both entitled to appeal the decision of the Local Court as an aggrieved person or be added as a party whose interest will be affected by the CLAC.

Mr Henry Star Dora sworn statement filed on 1^st July 2020 and Paul Marite’s sworn statement filed on 30^th June 2020 shows why Mr Dora was aggrieved by the decision of the Local Court decision. Mr Dora’s sworn statement, however, was not part of the notice of appeal from the Local Court to the CLAC, as the notice of appeal was filed earlier by the other Appellants. As alluded to earlier Joining a party to the appeal proceeding is not the same thing as filing an appeal. Mr Dora was added as a party to an already existing appeal. In that respect, the issue of filing appeal out of time is not an issue. Counsel Pitakaka for the Appellant submits also that there is no provision in law to join a person as a party to CLAC proceedings and that the CPR on joining parties to proceeding does not apply.

The purpose of joining parties are set out in Chapter 3 of the SI Civil Procedure Rules. Rule 3.5 of the rules stipulates that the court may order that a person becomes a party to the proceeding if the person’s presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceeding.

While legislation may not contain any provision to join a party in a CLAC proceeding or Rule 3 of the CPR may not apply, in the interest of justice. I think the principle in Rule 3 is applicable to the CLAC proceedings. Appeal points 1, 2, and 3 must therefore be dismissed.
The only remaining ground is Ground 4 that the CLAC’s order that the Local Court heard the matter de novo. When the higher court orders a rehearing by the Local Court, the provisions of Section 12 of the Local Court Act does not apply to the proceeding. The reason is that the rehearing is of an error made by the Local Court, the matter has already past the requirement of Section 12 of the Local Court Act. In the present case, the Local Court’s failure to carry out a physical survey of land may have contributed to the error to including Mr Dora’s tribal land in their decision and this affects the validity of the whole decision. I therefore, find the CLAC did not err in law or procedure when it orders that the matter be heard de novo and Mr Dora be added as a party to the Local proceeding. I had covered in my earlier discussion why Mr Dora is entitled to be added as a party and need not elaborate any further. I will dismiss the appeal and confirm the decision and orders of the Malaita Customary Land Appeal Court.

Orders

1. Appeal dismissed.
2. Cost against the Appellant to be tax if not agreed.

The Court
Emmanuel Kouhota
Puisne Judge