Viti v Bobo [2021] SBHC 170; HCSI-CC 705 of 2019 (9 December 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Viti v Bobo
Citation:
Date of decision:	9 December 2021
Parties:	Patrick Viti v William Bobo, Central Islands and Renbel Customary Land Appeal Court
Date of hearing:	9 July 2022
Court file number(s):	705 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The Claim for judicial review is hereby struck out and dismissed. 2. Cost of this hearing is be paid by the Claimant to the Defendants on standard basis if not agreed upon.
Representation:	Mr. E. Toifai for the Claimant Mr. S Balea for the 1st Defendant Ms P Rofeta for the 2nd Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule 2007 r 15.5.12, r15.3.15,r15.3.17, r15.3.18, r15.3.9 (a) and (b), Land and Titles Act S 266 (2)
Cases cited:	Hatagisa’a v Attorney General [2020] SBHC 17, Ratusia v Attorney General [2016] SBHC 53, Bavare v Nerapa [2011] SBCA 22, Aujare v Manegere [2020] SBHC 23

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 705 of 2019

BETWEEN

PATRICK VITI
(Representing Kapika and Ehotaratara Sub-Tribe of Lahi)
Claimant

AND:

WILLIAM BOBO
(Representing himself and Dili Vinahogo Sub-Tribe of Lahi)
1^st Defendant

AND:

CENTRAL ISLANDS AND RENBEL CUSTOMARY LAND APPEAL COURT
2^nd Defendant

Date of Hearing: 9 July 2021
Date of Decision: 9 December 2021

Mr. E. Toifai for the Claimant
Mr. S Balea for the 1^st Defendant
Ms P Rofeta for the 2^nd Defendant

DECISION ON CHAPTER 15 CONFERENCE

Faukona, DCJ: A claim for judicial review was filed on 13^th December 2019. The reliefs sought in the claim are, one for quashing order to quash the decision of Central Islands and Rennell and Bellona Customary Land Appeal Court dated 30^th August 2019, and secondly to remit the matter back to a relevant House of Chiefs within the locality of the land.

2. Rule 15.3.12 states that the defendant must file a defense within 14 days of service of the claim. R15.3.15 requires a sworn statement must be filed supporting the grounds. R15.3.17 is quite clear, after defense has been filed and served, the court must call a conference.
3. In the current case the only defense file was by the first Defendant, but not the second Defendant. In consequence the 2^nd Defendant should not participate at all in the Chapter 15 conference. However, it is the only Defendant which filed submissions. The first Defendant who had filed defense did not file any written submissions but rely on the submissions filed by the 2^nd Defendant and I have accepted it there and then. Because of the twist of things I will consider the submissions formulated as if it belongs to the 1^st Defendant.
4. In a judicial review claim after defense has been filed the Court pursuant to R15.3.18, must call a conference to determine whether the Claimant has;
   • (a) an arguable case, and
   • (b) is directly affected by the subject matter of the claim, and
   • (c) there has been no undue delay in the making of the claim, and
   • (d) there is no other remedy that resolves the matter fully and directly.
5. The four requirements have to be fully and be satisfied by the Court before it can hear the claim. Should one requirement is not fulfilled the Court must decline to her the claim and have it dismissed.
6. By R15.3.9 (a) and (b), in order to ensure all the requirements are being satisfied the Court must consider the papers filed in the proceedings, those is evidence, and hear arguments from the parties.
7. This Court has in possession of those materials and will make reference to them where needed.

Does the Claimant has an arguable case.

8. The prime instinct that comes to mind when considering a claim for judicial review is to review a decision of a tribunal or Court below. The decision of the Court to be reviewed must have or suspiciously have been contaminated with error or was wrong so that no Court properly constituted, having mandatory jurisdiction to conclude as the court did.
9. In this case when one looks at the referral and appeal processes from the Chiefs decision to Local Court (LC) and then to Customary Land Appeal Court (CLAC), it is obvious that whatever issues either on point of law or fact, experienced in the previous conduct of litigation became a subject or issue to be raised in the next hierarchy of Court.
10. The current claim for judicial review, in my view is to be confined to errors or wrong committed, or omitted by the Central Islands and Renbel CLAC in it conducted and determination of the appeal.
11. The significant point is, for instance, the issue of Chiefs jurisdiction. That had been raised before the Chiefs. If it was not considered, then of course on referral can be raised in the Local Court. There was opportunity available to raise it again. It might be possible to rise again in CLAC on appeal.
12. The Local Court is a court of first instance on customary land matters. In this venue parties should bail out all their knowledge of rights of ownership to the land. Witnesses are called to give oral evidence and are cross examined in Court.
13. At this level of land Courts, the members are well trained including the clerk. They are expected to know customary evidence related to customary land and how to assess them.
14. Upon perusing the claim for judicial review, I noted the majority of paragraphs contain complains about objections against the Paramount Chiefs Panel of lacking jurisdiction to hear the case. Further reading has reflected the same was raise in the Local Court, CLAC and again in this Court. In fact the LC and CLAC had reviewed the same issue raised before them. The CLAC in particular had succinctly dealt with that issue at paragraph 25-35 of its judgment.
15. The second issue noted in the claim was unfair treatment by the Local Court Clerk. That again was an issue raised in the CLAC as the Claimant was the appellant in that court. The CLAC had dealt with it in paragraphs 36-40. Why again in this Court under a claim for judicial review?
16. In submissions the Counsel for the Claimant emphasized those two issues are arguable issues which the Court will entertain in the substantive hearing henceforth reviewing the decision of the CLAC.
17. On the issue of jurisdiction the Counsel for the Defendants strongly objected, because the CLAC had dealt with it on appeal in ground (4) paragraph 25-31 in which the CLAC had considered and dismissed the appeal ground. In fact there was nothing on record of any objection. The fact that it has no record, indicated the Claimant had failed to raise such objections. An important argument was advanced by the Counsel that Ngella Paramount Chief’s Chambers was fairly .constituted as one representative was from Logana who represented the House of Chiefs the Claimant desired to hear this dispute.
18. On the issue of unfairness hearing it was raised in the CLAC and considered but was dismissed. Hence there are no arguable points the Court will investigate at the trail.
19. In a very clear case, CLAC had dealt with the issues when they raised before it in the above paragraphs. Just because the decision was not in favour of the Claimant that drives him diversity to assert the action or decision of the CLAC was in error of law for not considering his submissions.
20. On the second and the third requirements the Defendants do not have any issue as with it. In fact the Claimant was a party affected right from the beginning and that there is no delay in filing and making of the claim within 6 months pursuant to R15.3.8. Both Defendants agree those requirements have been satisfied.

Fourth issue: No other remedy that resolves the matter fully and directly.

21. The Claimant has argued that he had exhausted all avenues as to where to sought remedy before utilizing R15.3.18, and that judicial review claim is the only option left to resort to resolve the matter fully. The Claimant refers to the case of Hatagisa’a V Attorney General^[1].
22. On a parallel tone is the notion expressed in the case of Ratusia V AG^[2] which stated “that R15.3.18 (d) provides for alternative legal process through other acts which conferred jurisdiction that the Claimant could resort to other than a claim for judicial review. Not only the process is provided by law, but it is available, convenient, and perhaps prior in option”. This is the case the Defendants rely on. In whatever sense both cases maintain a prior option which will deal with the case and resolve the matter fully.
23. In the current case the Defendants suggest that an appeal under S.266 (2) of Land and Titles Act is more appropriate and relevant. By utilizing the judicial review provisions was perhaps the Claimant has exhausted the time limit to file an appeal, or has no ground at all in the nature of point of law or on procedural errors.
24. In my opinion the provision gives the Claimant a reasonable choice. He may have had difficulties in appealing. However, that is the first and fore most option to resume to, to resolve his grievances. He chooses not to. In my opinion the Claimant has no valid ground of appeal in law or on procedural rules so he waited until three (3) months period had elapsed before he filed this claim. Even if he filed an appeal he would also raise the same grounds of appeal which he had repeated from the lower hierarchy of Courts. See the cases of Bavara v Nepora^[3] and Aujare V Mangere^[4]
25. In Conclusion one of the requirements has not been met. The other is halfly met. Therefore, I am not satisfied that 2 of the four requirement are not fully fulfilled therefore I must decline to hear the claim and must strike it out forthwith.

Orders:

1. The Claim for judicial review is hereby struck out and dismissed.
2. Cost of this hearing is be paid by the Claimant to the Defendants on standard basis if not agreed upon.

The Court.

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^[1] [2020] CC213 of 2015 (29 January 2020)
^[2] [2016] SBHC; HCSI-CC. 125 of 2015.
^[3] [2011] SNCA 22; CA-CCAC 12
^[4] [2020] SNHC; HCSI-544 of 2019 (21 April 2020).