Daga v New Georgia Local Court [2020] SBHC 24; HCSI-CC 147 of 2017 (24 April 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Daga v New Georgia Local Court
Citation:
Date of decision:	24 April 2020
Parties:	Rutu Daga, Luke Daga and Willie Pada v New Georgia Local Court
Date of hearing:	8 April 2020(Written Submission only)
Court file number(s):	147 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	This claim is dismissed because there is another remedy to resolve this dispute fully and directly, utilizing the regime provided by Statute. Claimants to pursue their referral and to properly file papers with the NGLC. And NGLC to determine claimants referral on merit. I sent this dispute back to NGLC, to hear the referral de novo (de novo means - hear the dispute/referral afresh). I am using the term “referral” and not “appeal”, because the court of first instance, for customary land disputes, is Local Court. According to the Local Court reasons cited above, no referral was ever made to NGLC. So claimants to make new referrals to NGLC. And NGLC to hear the dispute de novo. No order on costs.
Representation:	Mr. J Dudley for Claimant No Appearance for Defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule, 15.3.18 (a)-(d)
Cases cited:	Bavare v Nerapa [2011] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case no. 147 of 2017

RUTU DAGA, LUKE DAGA AND WILLIE PADA
(Representing the Daga Tribe)
Claimant
V

NEW GEORGIA LOCAL COURT
(Attorney General Representing)
Defendant

Date of Hearing: 8 April 2020 (Written Submission only)
Date of Ruling: 24 April 2020

Mr. J Dudley for Claimant
No Appearance for Defendant

RULING ON CHAPTER 15 CONFERENCE

1. Claimants’ tribe filed a judicial review claim on 18/04/2017. An amended judicial review claim was subsequently filed on 28/09/2017. At this conference, the said amended claim, defence and supporting sworn statements for both sides were considered.
2. For this chapter 15 conference, the court will do a filtering process, whereby claimants must demonstrate that their claim has satisfied, all of the 4 requirements under Rule 15.3.18 (a) – (d). Requirements are (a) claimants have an arguable case, (b) claimants are directly affected by the subject matter of the dispute, (c) there is no undue delay and (d) there is no other remedy that resolves the matter fully and directly. If the claim does not satisfy all four requirements, the claim will be dismissed.
3. Quickly, I can say that there is an arguable case and claimants are directly affected by the subject matter of this dispute. On undue delay, this claim was filed beyond the 6 months period permissible for filing of judicial review^[1]. The decision of New Georgia Local Court (NGLC) was made on 18/10/2016. This judicial review claim was filed outside of the 6 months period on 18/04/2017. And lastly there is another remedy that will resolve this dispute fully and directly.
4. The chiefs have had an eye on this dispute (chiefs’ settlement). And claimants referred the dispute to NGLC. That referral was not properly filed. And so NGLC decline to assume jurisdiction. And so NGLC set aside, the referral. The NGLC relevantly reasoned: -

“Jacob R. Daga’s case, referred to court was in fact, a referral lodged with a wrong form, the Unaccepted Settlement Form. This form is particularly meant for the chiefs to fill in each of the particulars purposely for the summary of their finding and decisions, it does not mean for a litigant or party referring case to the Local Court in this case, Jacob R. Daga to tender and file at the court and regard it as an appeal or more appropriately written statement as referring his case to the local court. In this way, there is no case referral to New Georgia Local Court”^[2]. – (underlined my emphasis)

5. In the final analysis, issues of customary land disputes are at the heart of livelihood for people in this country. And where issues of such land dispute are raised, they must be attended to on merit. They must not be pushed aside, on mere technical grounds. So in this case, the NGLC should have stayed the referral. Allow the referring party to file proper papers. And should subsequently hear the referral, on the merit.
6. Matters to do with customary land ownership and disputes are given a statutory regime to deal with beginning with the chiefs. Hierarchy of the regime is (Chiefs – Local Court – Customary Lands Appeal Court – High Court on error of law and process only). Court of Appeal speaking about this regime and hierarchy says that Local Court has de novo powers to hear referrals from Chiefs attempted settlement. Court of Appeal relevantly stated: -
   • “The legislative regime allows the appellants a hearing de novo in front of a local court. There is a further appeal to the Customary Land Appeal Court, which has the benefit of a legal advice from a Magistrate sitting as a clerk. Finally there is a right of appeal to the High Court on point of law or procedure”.

“Given this hierarchy of rights, we are satisfied there is ample opportunity for the appellants’ complaints to be considered. It follows Chetwynd J, was correct to conclude that the appellants had failed to satisfy the requirements of Rule 15.3. 18 (d) and to strike out the claim”^[3].

7. Accordingly, this claim is dismissed, because there is another remedy to resolve this dispute fully and directly, utilizing the regime provided by Statute. Claimants to pursue their referral and to properly file papers with the NGLC. And NGLC to determine claimants referral on merit. I sent this dispute back to NGLC, to hear the referral de novo (de novo means - hear the dispute/referral afresh). I am using the term “referral” and not “appeal”, because the court of first instance, for customary land disputes, is Local Court. According to the Local Court reasons cited above, no referral was ever made to NGLC. So claimants to make new referrals to NGLC. And NGLC to hear the dispute de novo. No order on costs.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] Rule 15.3.8.
^[2] New Georgia Local Court decision dated 18/10/2016, at paragraph 3 (ii) – Exhibit RD 9 of statement by Rutu Daga filed 19/04/2017.
^[3] Bavare v Nerapa [2011] SBCA 22; CAC-CAC 21 of 2011 (25^th November 2011).