Usa v Reinunu [2020] SBHC 31; HCSI-CC 5 of 2020 (28 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Usa v Reinunu
Citation:
Date of decision:	28 July 2020
Parties:	Siriako Usa v Onesimo Reinunu
Date of hearing:	8 June 2020
Court file number(s):	5 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:	Guadalcanal Customary Land Appel Court
Order:	1 Appeal notice filed on 13th January 2020, is hereby struck out. 2. Since the GCLAC, is the next Court below which assume jurisdiction to hear, cannot run contrary to its orders remitting the case to be heard in the GLC. 3. To pave the way for GCLAC to rehear the appeal from the GLA, I must quash the decision of the GCLAC. 4. Order that differently constituted GCLAC to rehear the appeal in full, and if parties require land survey it must be done. 5. The appeal must be heard within four (4) months from the date of this ruling. 6. Cost of this application is to be paid by the Appellants to the Respondents.
Representation:	Mr. G Suri for Respondent/Applicant Mr. D Nimepo for the Appellant/Respondent
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act,s12 (3) and s,13, Old Rules Order 60 A, Rule 2(2)
Cases cited:	Burgess v Stafford Hotel Ltd, Karovo v Sibisopere [2003] SBHC 98, Koke v Hulanga [1996] SBHC 92, Buga v Ganifiri [1982] Sesele v Norua [1995] SBHC 9

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 5 of 2020

SIRIAKO USA (deceased) of Kakau Gota Tribe
Appellant

V

ONESIMO REINUNU (deceased) of Kakau Roha Tribe
Respondent

Date of Hearing: 8 June 2020
Date of Ruling: 28 July 2020

Mr. G Suri for Respondent/Applicant
Mr. D Nimepo for the Appellant/Respondent

RULING ON APPLICATION TO STRIKE OT APPEAL

Faukona PJ: This is an application, as amended, filed by the Respondent on 22^nd April 2020, to strike out the notice of appeal filed by the Appellants on 13^th January 2020, against the decision of Guadalcanal Customary Land Appeal Court (GCLAC) on 12^th November 2019.

2. There are six grounds of appeal set out in the notice of appeal.
3. The grounds for striking out the notice of appeal are on the basis that the reasons given by the GCLAC was that the Local Court deviated from the issues it was ordered by the High Court to determine, instead set out new issues for determination.
4. That there is no point of law contain in grounds (d) of appeal, because the GCLAC found no satisfactory evidence to substantiate the allegation against Justice William Pocho.
5. And thirdly in ground (c), the notice of appeal premised on the assumption that there is reasonable prospect of success.
6. This is a long outstanding dispute between the parties concerning the same customary lands. To a point in time, this Court on 28^th July 2015, made orders that the case be remitted to the Guadalcanal Local Court (GLC) differently constituted to rehear the dispute.
7. The Local Court then convened and heard the case on 27^th and 28^th May 2019 and made its judgment on 14^th June 2019. In its judgment the Court stated that the customary ownership of Honiata/Rauvuneha customary lands still remain with Kakau Gota and Laukuli clan as primary owners and represented by the Plaintiff Mr Kasiano Kere.
8. The current Respondent/Applicant then appealed against that determination to the GCLAC which was heard on 4^th and 5^th November 2019 and judgment was delivered on 11^th November 2019. In its judgment the GCLAC dismissed all the grounds, except for ground 1.2 which it upheld and remitted the case back to the Local Court for rehearing.
9. The reason for its decision was that the Local Court had committed an error by setting new issues for determination thereby fail to comply with orders of the High Court on 28^th July 2020.
10. The Appellants therefore appealed against that determination remitting the case to be reheard again by the Local Court. Apparently a notice of appeal was filed in this Court on 13^th January 2020.
11. In fact there are two appeals filed by the same party, with different names, in respect of the same customary lands. One is this one, and the other was filed by Mr. Rano on behalf of the same Appellants in Civil Case No: 47 of 2020 of which this court had struck out the notice of appeal.
12. One daunting practicality which is strange and new is why the same party filing two notices of appeal using two different names engaging two different Counsels? I am in no doubt that all the Counsels had knowledge of this irregularity. But none of them took initial steps to question the motive, even to suggest a proper way forward to avoid confusion and complications.
13. In court, the court heard the two applications separately. In whatever course, there are confusions emerged from a strange processes.
14. The Counsel for the Respondent stood a better chance to question such processes, and where necessary suggested option as to what ought to, and need to be done to avoid strange invented process. I wonder if the Court of Appeal should view such, and draw orders and or directions. However, personally, I feel what had happened in these cases are improper and should not be repeated again.
15. In a general perspective, the Respondents’ submissions premise on the facts that the notice of appeal are not in connection with the reason set by CLAC for quashing the Local court decision, and which did not constitute point of law, and is self-weakened by relying on reasonable prospective of success.
16. It would appear, in a general tenor that the Respondent’s submissions are constructed in a manner fully supporting the GCLAC decision and reasoning, and hence remitting the case back to the Local Court for rehearing.
17. First and foremost I acknowledge this Court has jurisdiction to entertain such application on three bases, one under the old Rule Order 60 A, Rule 2(2), second that it has jurisdiction to supervise the subordinate Courts, and thirdly may strike out a notice of appeal if it is frivolous, vexatious and abuse of process, – see Burgess V Stafford Hotel Ltd^[1]. Those three areas in which this Court can exercise its jurisdiction are also well narrated in the case of Karovo V Sibisopere^[2]
18. I will now deal with the next two fundamental issues separately and precisely. The first relates to notices of appeal and the second relates to the jurisdiction of the Local Court.

Notice of Appeal.

19. This case is one of the rarest where the same party filed two notices of appeal against the same party concerning the same customary lands, under a camouflage of different names. Undoubtedly such would definitely bring about similarity in all aspects. I see there is no difference at all. This would not have been allowed. Counsels should ensure, by way of advice that one notice of appeal is suffice where the same parties litigated the same issue. This has caused confusion to the court and of course an abuse of court process. Quite apart from that, the question to pause is can a deceased person appeals. Apparently it seems the Counsels are also deceased therefore, unable to perceive what is right or wrong. As such they could not able to see or their visions are blurry.
20. Another comical issue is that the names of the parties as individuals were both deceased. How on earth would a deceased name continue to remain on Court document without the name of the living being representing the deceased? And yet it is amazing that in such situation they were represented by living Counsels without explanation. Is this not an abuse of Court process again?
21. Preliminary, these two points alone are capable of striking out the notice of appeal. Why such notice should stand and come before a Judge at all, it’s a waste of Court’s time.
22. In respect to points raised in the notice of appeal, points (a) to (c) has no connection whatsoever to the decision made by GCLAC, remitting the case back to the Local Court for rehearing. What it contains is an exception trying to preach out that the Local Court has jurisdiction to hear the issue of ownership to customary land as provided for by S.12 and S.13 of Local Court Act. That is none issue, Mr. Suri has definitely agrees to that. These points do not contain merits in them therefore must be dismissed and strike out accordingly. They are neither a point of law or procedure.
23. On point (d) which contain an allegation against Justice Mr Pocho as was seen within the vicinity of the residence of the Respondent (who was a deceased) contains no merit. How would a single justice influence a CLAC panel which comprised of seven (7) sitting members? That is too cheap an argument which render, in my view no consideration at all. It is very trivial in nature without any merit and does not contain a point of law or procedure which will attract Court even to consider, therefore must be dismissed, see the case of Buga V Ganifiri^[2] page 3, paragraph 4, Koke & Others V Hulanga & Others^[3] page 2, paragraph 5 & 6.
24. Appeal ground (E) contains self-assessment conclusion that the Appellants’ case in whatever level of Court, has prospect of success. Literally that does not contain any point of law or procedure. There is nothing to substantiate. The reality is that it will still be a contested case which the outcome cannot be well prophesied. Therefore it is perceived prudent to dismiss this ground.
25. There is an issue where a clerk in the Central magistrate’s court attempted to administratively refer the dispute back to the GLC as ordered by the GCLAC. The letter was in fact dated 17^th March 2020. How would he do so when this notice of appeal was filed on 13^th January 2020, and is still pending decision by the High Court? In my view, it would be improper for any formal management of the file to refer the case back to the appropriate Local Court as yet. That must be halted until the High Court had decided the appeals. The reliance on the letter as valid implication of remittance is absurd and cannot be accepted as forming or containing any material fact at all to propose or affirm success.

Excess jurisdiction of the Local Court.

26. At the initial submissions Mr. Suri has agreed to the jurisdiction of the Local Court pursuant to sections 12 and 13 of Local Court Act.
27. S.12 (3) outline that any party dissatisfied with the Chiefs’ decision shall refer the dispute to the Local Court, with a certificate prescribed as Form 1 which contain particulars and signed by at least two Chiefs. In addition, the party shall also lodge a written statement setting out the extent of the decision made by the Chiefs is not acceptable and reasons for not accepting the decision. And S.13 sets out the powers of the Local Court when hearing the dispute.
28. In all practical sense, in some circumstances, lawyers represent parties as advisers in the Local Court and they operate behind the scenes. In some cases there is nothing. In some cases as well, spokes persons representing a tribe or clan is not well educated. In ordinary sense S.12 (3) (a) is well understandable, reasons for not accepting the decision. In some cases where a referral party is not educated or well educated, then it is a problem to understand and interpret the words “the extent by which the decision is not accepted”. And so the statement as required to be filed may not cover both requirements fully. However, so long as the Local Court can understand and accept the statement on referral, full hearing exercising its full jurisdiction as mandated, will be pursued to the end.
29. It ought to be noted that not all litigants appearing before the chiefs’ hearing are educated and can able to read and write statements. From experience, after 25 years with the lower land courts, expectation that drafting of statement which can equate to what a lawyer can do is a myth. One need to come down to that level before one can able to acknowledge the reality.
30. Mr. Suri raised the issue of excess jurisdiction particularly as part of his submission to strike out the notice of appeal, and at the same time agreed with the GLCAC decision made on 12^th November 2019.
31. He expressly stated that the jurisdiction of the Local Court is confined to the orders made by this court on 28^th July 2015 remitting the case to be re-heard by differently constituted Local Court. I agree, I made that order, with order (5) which I therefore accepted the written statement filed by the late Mr Siriako Usa, dated 25^th October 2010, as sufficient to assume the jurisdiction of the Local Court.
32. The argument run by Mr. Suri is that the written statement filed by the late Siriako Usa did not contain matters related to customary land ownership, or facts that will oblige parties to enquire into the land dispute according to law. And that the Local Court should not device issues in dispute for the Appellant. Mr. Suri then therefore refers to the case of Sesele V Norua^[4].
33. It must be acknowledged on the outset, that a referral case from the Chiefs’ Decision to the Local Court is not an appeal. There suppose to be no Appellant and Respondent.
34. However, they are accepted as Claimant and Defendant who advance two claims, claiming the ownership of the customary land in issue. Therefore my perception is that, a case referred to Local Court does not necessary be equated to the statements filed in the pleadings in the High Court. One of the purposes of pleading is to identify the issues, different than in the Local Court where the issue are almost certain even at the initial stage of filing of the referral. The issue is who owns the particular customary.
35. I have noted the statement written by the late Siriako Usa on 25^th October 2010 was accepted by the previous Local Court. And that Local Court had dealt with the ownership issue. So what actually urged me when remitting the case to a newly constituted Local Court was for the newly constituted Local Court to rehear the claims again? If there are preliminary issues the Local Court should entertain that as well, should be part and partial of that hearing.
36. In the statement, paragraphs 1 to 3 related to one sided hearing and relationship between Mr. Oneisimo to the Chiefs panel. Paragraphs 4 to 7 related to procedures. Those are preliminary issues.
37. However, paragraph 8 related or associated with the ownership of a huge land, and suggested that the Chiefs had failed to identify. That is an issue related to the boundaries of a bigger land, and the question of ownership of that land which the Local Court has jurisdiction to entertain. Identifying boundaries of a customary land cannot be heard in isolation, it directly connects to the issue of ownership. Wordings and description may not be clear as crystal, but provided a hint that the issue of ownership ought to be entertained by the Local Court in association with bigger land together with the preliminary issues. I think the Local Court is correct on this point in determining the ownership issue.
38. Again in paragraphs 8, 3^rd sentence, it stated that the right of Kakau and sub-tribes and Lakuli and its sub-tribes as owners of twenty (20) sacrificial places and old villages sites has been denied their right. That is another hint that Local Court ought to enquire into and or investigate. The process should involve full hearing and where possible a survey be conducted, if needed.
39. Identifying ownership goes hand in hand with the boundaries of the lands. It requires customary evidence to poof the ownership of the land and its boundaries. That evidence includes, sacrificial places, burial taboo sites, old village sites, edible trees as nuts, cut nuts, breadfruits and etc. Those are customary evidence to proof ownership by a tribe. And a Local Court hearing a dispute between parties must consider before finally deciding the rightful owner. The only way to investigate the truth is through the Local Court proceedings.
40. The original jurisdiction of a Local Court is to hear dispute in respect of customary land ownership refer to it from the decision of the Chiefs.
41. The records in this case implicated a long outstanding dispute between the same parties concerning the same customary lands, and the issue of ownership. There is nothing can change that.
42. If the Local Court merely deals with the preliminary issues alone, when would it deal with the issue of ownership? Of course anyone who disagrees with the decision has the right of appeal to the CLAC. And then that issue alone will take up time of the Courts before the substantive issue of ownership is finally heard.
43. The issue of social or customary relationship of the parties to any member of the panel, whether in respect to Court or tribunal is a separate issue to entertain. It does not touch on ownership. To allow the lower Court to confine its jurisdiction is actually prolonging the substantive issue to be heard. In fact with a proper vision, one would see that in all customary land disputes the two issues seem to amalgamate. And it is best they be heard together once the preliminary issue is raised. Logically a preliminary issue cannot be heard is isolation, but must include the ownership as well.
44. Four reasons I have stated above, provides a path towards striking out the appeal with Costs. I must therefore strike out the notice of appeal with costs.

Orders:

1. Appeal notice filed on 13^th January 2020, is hereby struck out.
2. Since the GCLAC, is the next Court below which assume jurisdiction to hear, cannot run contrary to its orders remitting the case to be heard in the GLC.
3. To pave the way for GCLAC to rehear the appeal from the GLA, I must quash the decision of the GCLAC.
4. Order that differently constituted GCLAC to rehear the appeal in full, and if parties require land survey it must be done.
5. The appeal must be heard within four (4) months from the date of this ruling.
6. Cost of this application is to be paid by the Appellants to the Respondents.

The Court.

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^[1] No citation disclose
2. [2003] SBHC 98, HC-CC 13 of 2002 (5 May 2003).

^[2] [1982] SILR 119 (29^th November 1982)
^[3] Civil Appeal No. 12 of 1994.
^[4] [1995]SBHC 9; HCSI-LAC 3 of 1993 (27 October 1995).