Maka v Malaita Customary Land Appeal Court [2020] SBHC 9; HCSI-CAC 261 of 2012 (7 February 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maka v Malaita Customary Land Appeal Court
Citation:
Date of decision:	7 February 2020
Parties:	Edward Maka, Marin Dick v Malaita Customary Land Appeal Court, Alfred Kiki
Date of hearing:	24 September 2019
Court file number(s):	261 of 2012
Jurisdiction:	Civil Appeal Case
Place of delivery:
Judge(s):	Kouhota PJ
On appeal from:	Magistrates Court
Order:	The claim is dismissed Cost is awarded to the respondent on indemnity basis
Representation:	Mr. A Hou for the Applicants Mrs. R Soma with Fakarii for the First Defendant Mr. W Rano for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007
Cases cited:	Vikasi v Vunagi [2016] SBCA 14, Majoria v Jino [2007] SBCA 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Appeal Case No. 261 of 2012

EDWARD MAKA
First Claimant

MARIN DICK
Second Claimant

V

MALAITA CUSTOMARY LAND APPEAL COURT
First Defendant

ALFRED KIKI
Second Defendant

Date of Hearing: 24 September 2019
Date of Judgment: 7 February 2020

Mr. A Hou for the Applicants
Mrs. R Soma with Fakarii for the First Defendant
Mr. W Rano for the Second Defendant

JUDGMENT

Kouhota PJ:
Background

The subject matter of this case, the Fuliabu Customary Land had been ligated since 1973. It has been through the Native Court (now Local Court), was a subject of Land acquisition proceeding, before the Magistrates Court on appeal against the acquisition and before the Local Court in 1979 and 1997 and finally before the Local Court. The last time the matter was before the courts was an appeal by the Second Defendants party to the Malaita Customary Land Appeal Court (MCLAC) in 1997. The decision of the Malaita Customary Land Appeal Court (MCLAC) was in favour of the Second Defendants. The present proceeding relates to that decision of MCLAC which was in favour of the present Second Defendant’s father as it has been for most of the previous litigations.
The matter was brought to this court as category C claim filed on 15^th August 2012. Since then the proceeding progress through the court at snail phase. By an order dated perfect on 9^th March 2019, the court grant leave to the First and Second Claimant to file a claim for Judicial Review seeking a quashing order under Rule 15.3.4 of the Court Civil Procedure Rules 2007 in respect of the decision of Malaita Customary Land Appeal Court in Case No.MD/LAC/4 OF 1976 on the basis of fraud. The decision of the MCLA was in favour of the present Second Defendant. What the claimant seek to do now is unraveled the decision made by the (MCLAC) some 44 years ago.
In opposing the claim for judicial review, Mr Rano of counsel for the defendants submits that the first thing that comes to mind is the limitation of time. He submits that where a party seeks to appeal a decision of a tribunal out of time under the guise of Judicial Review it is an abuse of process of the Court. He submits that in relation to limitation of time, any appeal from the CLAC to the High Court must be done within three months of the judgment. That should lapse on 8^th October 1976 but the claimant fails to do that. This he submits is settled law (see Vikasi v Vunagi [2016] SBCA14; SICOA –AC 02 of 2016). Mr Rano submits as a general rule a party is entitled to seek relief out of a judgment within 6 years and in terms of recovery of land the time limit is 12 years.
With regard to allegation of fraud, counsel pointed out that fraud as pleaded in paragraphs 15 and 18, he pleaded the fraud founded around April 2005 but the claimant did start the proceeding until 15^th August 2012 but by that time the claim would be statute-barred. It was also submitted by Mr Rano that since 1976 up to 2007 the claimants have been trying to re-litigate the issue of ownership of the same land and in each case, the claimants had lost to the Second Defendant. He submits that one cannot say that the claimant has an arguable case.
Counsel for the defendant also raises the issue of res judicata and referred to the case of Majoria v Jino [2007] SBCA 20 CA-CAC 36 of 2006 in which the Court of Appeal held as follows;

• “To make out estoppel per rem judicatam or cause of action estoppel” it is necessary to show that the earlier judgment relied on was a final judgment, and that between the former and the present and the present litigation there is identity of parties and subject matter or cause of action”.

The last proceeding in this matter was before the Malaita CLAC in 1997. I agree with counsel Rano’s submission that fraud pleaded was founded around April 2005 but this proceeding did not start until 15^th August 2012 so the claim would be statute-barred. On the materials before the court, it is also clear that the parties are the same being descendant of the original parties in the 1973 Local Court case and the subsequent court proceedings in the Malaita Local Court and the Malaita Customary Land Appeal Court. On that basis, I find that the matter is not only res judicata but also statute-barred. The claim is dismissed.

Orders

1. The claim is dismissed.
2. Cost is awarded to the respondent on indemnity basis.

The Court
Emmanuel Kouhota
Puisne Judge