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Niva v R [2021] SBHC 184; HCSI-CRC 261 of 2015 (26 April 2021)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Niva v R


Citation:


Date of decision:
26 April 2021


Parties:
Aloni Niva v Regina


Date of hearing:
30 July 2018


Court file number(s):
261 of 2015


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Palmer; CJ


On appeal from:
Magistrates Courts


Order:
1. Appeal allowed.
2. Direct that all the charges instituted against the Appellant be dismissed herewith.
3. The Appellant is entitled to his costs in this appeal, to be assessed by the Registrar if not agreed.


Representation:
Mr Wilson Rano for the Appellant
Mr Bradley Dalipanda for the Respondent


Catchwords:



Words and phrases:


Legislation cited:
Penal code S 110 (a), S 110 (b), S 308 (b) (ii), S 344, S 343, S 103 (a)
Local Court Act [cap 19] S 14, S 14 (1) and (3)


Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case No. 261 of 2015


ALONI NIVA


V


REGINA


Date of Hearing: 30 July 2018
Date of Judgment: 26 April 2021


Mr. Wilson Rano for the Appellant
Mr Bradley Dalipanda for the Respondent

Palmer CJ.

  1. This is an appeal against the orders of the Magistrates’ Court dated 12 May 2015 dismissing an application by the Appellant to have the charges against him dismissed or stayed permanently on the grounds of abuse of process of the Court.
  2. The presiding Magistrate formed the view that the application was premature, an abuse of process and that even if justified that the court lacked jurisdiction to grant the orders sought.
  3. On or about the 7th September 2015, an appeal was filed in the High Court against that order of the Magistrates’ Court and seeking orders for the Court to hear its application.
  4. On or about the 23rd September 2015, an amended petition was filed which inter alia sought orders to hear its application for strike out and or a permanent stay of the charges.

The application in the Magistrates’ Court.

  1. The grounds relied on in the court below were:
  2. The Appellant submits that the refusal by the Magistrate amounted to:
  3. That appeal was dealt with by this court in its decision of 7 November 2017; the appeal was allowed and orders of the Magistrates’ Court quashed. In that same ruling however, I ordered that the issue of dismissal of the charges or permanent stay be dealt with by this court rather having it returned to the court below. This is the decision of this court in relation to that substantive issue.

The Charges in the Magistrates’ Court.

  1. The Appellant is charged with 13 counts which are set out in detail as follows:
  2. The offences can be summarized as follows:
  3. The offences have been set out in detail as it is necessary to examine the substantive charges in some detail for they form a direct nexus to the question whether the charges should be dismissed or permanently stayed. Unless the charges contain prima facie material of an offence, they ought not to be allowed to remain on the complaint. The question of stay only becomes relevant where there is prima facie evidence of an offence having been committed. That is the substance of the argument of Mr. Dalipanda of Counsel for the Crown, that a criminal proceeding is an independent exercise in the discretion of the Crown, to have a person charged and prosecuted if there is prima facie evidence of an offence having been committed.
  4. The Appellant on the other hand argues that even if that were the case, where there is clear evidence of an ulterior motive being used or pursued in the lodging of criminal proceedings, they ought to be dismissed or permanently stayed as an abuse of the process.
  5. In this case, it is alleged that criminal proceedings had been used to undermine a concurrent civil jurisdiction of a higher court[1], to prevent the Appellant from enjoying the fruits of his claim obtained in that case. Mr. Rano submits that this amounts to an abuse of process and an affront to good conscience, and the criminal proceedings should either be dismissed or permanently stayed.
  6. The court is obliged in the circumstances to determine if there is sufficient evidence in the charges filed against the Appellant.

The brief facts in the case.

  1. The issues giving rise to the charges have their beginnings from a logging dispute over questions of ownership over customary land known as Nono customary land. The parties in the dispute are Aloni Nivah (“the Appellant”) on one side and Chief Letipiko Balesi (“Chief Letipiko”) on the other side. Both are from the same tribe.
  2. Large scale commercial logging had taken place over portions of land claimed by the Appellant in or about 2005, being, Tabakale, Korovua, Gakelea, Valuvalu, Boku, Kanivera and Podaenigetu (hereinafter referred to as “the Disputed Land”). The Appellant and his family claim ownership rights over those lands. They claim that when logging took place in 2005, they were not consulted and so did not give consent to the grant of timber rights over those lands. They say they are the rightful persons lawfully entitled in custom to grant timber rights over the Disputed Land.
  3. In or about 2008, the Appellant commenced a civil suit (Civil Case no. 241 of 2008) claiming inter alia, trespass and conversion of trees against Chief Letipiko, JP Enterprises and Oceania Trading Company. JP Enterprises appears to be the timber license holder, Oceania Trading Company the logging contractor, and Chief Letipiko being the customary land owner who purported to grant timber rights over that Disputed Land.
  4. In order to prove trespass in law, the Appellant needed to be aided by some form of “decision or determination” of ownership in custom.
  5. Prior to commencing his civil suit, the Appellant held discussions with Chief Letipiko, who at that time was serving time in Rove Prison for fraudulently creating a decision of a Local Court vesting ownership of Nono customary land on himself. As a result of those discussions, a number of correspondences were made by Chief Letipiko confirming ownership of the Disputed Land on the Appellant and his family. The effect of those correspondences was to also entitle the Appellant and his family to be paid royalties from the Disputed Land. In spite of those correspondences however, JP Enterprises refused to pay royalties to the Appellant.

The first decision of the MCC.

  1. In the light of that refusal to make royalty payments, the Appellant convened a meeting of the Nono tribe on or about 15 October 2007 and obtained a resolution that his line/family was the owner of the Disputed Land. He then referred the matter to their peak Chiefs’ Committee being, the Marovo Council of Chiefs (“MCC”) on or about 21st April 2008. The purpose of that referral was to get the MCC to endorse the tribal resolution as a decision of the Chiefs’ Committee.
  2. The Appellant named Chief Letipiko, his brother and sister as the defendants. Chief Letipiko however could not attend as he was in prison, his brother refused to attend. His sister was the only one who attended the Chief’s hearing (first meeting of the MCC).
  3. At that meeting/hearing of the MCC, the Appellant presented a copy of his tribe’s resolution and a copy of the letter dated 19 December 2005 purportedly signed by Chief Letipiko as proof of ownership. That letter of 19 December 2005 is one of the documents which forms the subject of some of the charges against the Appellant (the first 7 counts in the charge sheet).
  4. The MCC considered his submissions and issued a decision in his favour. Subsequently an accepted settlement form was signed by the chiefs to have the decision registered with the Local Court as a legally binding decision.
  5. On his release from prison, Chief Letipiko claimed that the letter of 19 December 2005 was a forgery, he disputed the decision of the MCC and applied to quash that decision in civil case no. 267 of 2009. On or about 31 July 2009, the High Court per decision of Cameron J., quashed that determination on the grounds inter alia of failure to give Chief Letipiko opportunity to be heard regarding any claims that he might have towards the Disputed Land.

The second determination of the MCC.

  1. In or about 19 July 2011, the Appellant referred the same dispute back to the MCC against the same party, Chief Letipiko for a hearing. This time Chief Letipiko attended the hearing. His decision in agreeing with the claim of ownership of the Appellant over the Disputed Land is relevant and crucial to this appeal as they relate to allegations of forgery and fraud.
  2. The three chiefs, Ambrose Ngatu (Chairman), Dilenty Vula, and Kenty Timothy presided over that hearing with Rev. Roland Mae being, the secretary. A written decision was subsequently issued by the MCC in October 2011 confirming ownership of the Appellant over the Disputed Land.
  3. That determination of the MCC is relevant and significant. There are two parts to that decision. First, it confirmed ownership on the Appellant; secondly it endorsed claims for damages to be collectively addressed by the parties.
  4. That decision of ownership as an undisputed fact is relevant to keep in mind in this appeal.
  5. Following this determination and on confirmation by Chief Letipiko around July 2012 of acceptance of ownership rights over the Disputed Land, the Appellant sought to have that decision recorded by the Local Court as an “accepted settlement”, pursuant to section 14 of the Local Courts Act [cap. 19] (“LCA”).

The Accepted Settlement Form II.

  1. This brings me to consider the second important document in this appeal, being the accepted settlement form drawn up and dated 23 May 2012. The first important document, being the letter of 19 December 2005 will be considered later in this appeal.
  2. The allegations raised in relation to this document are inter alia that it has been forged, fabricated or interfered with by the Appellant in such a way as to achieve an unlawful or illegal purpose, being, that he is the owner of the Disputed Land. The validity, accuracy or correctness of that document therefore is material to the issues raised in the numerous charges against the Appellant.
  3. It is relevant therefore to consider that document in detail.
  4. The LCA provides for the recording of decisions of the Chiefs by the local court that have been accepted by the parties. The reason for this is to give legal effect to such determinations, there being no legal process under which chiefs’ decisions may be enforced as an order of the court, unless recorded as a decision of the local court. The local court is a creature of statute, whereas chiefs’ hearings and determinations are part of the informal traditional justice system of resolving customary land disputes. Apart from a reference to chief’s hearings in the Local Court Act, there is no separate legislation which caters for the set-up and hearings by such body.
  5. Section 14 of the LCA provides as follows:
  6. It is important to note that the process of recording has a time limit of three months from the date of decision. For any decision to have legal effect therefore as a decision of the Local Court, it is required to be lodged not later than three months from the date of the decision by the chiefs.
  7. It is an undisputed fact in this case that the decision of the MCC was issued on or about October 2011. It is also an undisputed fact that the Accepted Settlement Form II (“AS Form”) was lodged with the Local Court office at Gizo Magistrates’ Court on or about 13 August 2012, some 7 months late (after the decision was published). The time limit for filing of the decision with the local court would have expired on January 2012. This is also an important undisputed fact to keep in mind in this appeal. The effect of such a failure to comply with the time limit will render any attempts thereafter to file the decision with the local court futile and a nullity. In other words any purported filing for recording of the AS Form on 13 August 2012, being late was void ab initio (a nullity from the beginning).
  8. The significance of this undisputed fact is crucial for it can only mean that the document cannot be the subject of any valid charge or offence against the Appellant, having no legal effect in terms of section 14(1) and (3) of the LCA. While its’ significance and relevance in custom in terms of ownership rights in favour of the Appellant remain, it cannot support or uphold any offence or charge in law.
  9. Secondly, on the face of the document itself, there can be no basis for any allegation of uttering (counts 7 and 8), false pretence (count 9), making false statements on oath (count 10), and making false declarations on oath (counts 11-13), for the document merely contains particulars (details) of the acceptable decision of the MCC by the parties. The ultimate decision of ownership in custom had already been made by the MCC in October 2011. It is pertinent to note that there is nothing fraudulent, illegal or wrong about that decision in custom for it had been agreed to by Chief Letipiko.
  10. The AS Form merely certifies or reflects the accuracy of that decision for purposes of having its decision recorded with the local court. If the AS Form for instance had been lodged with the local court before the expiry date in January 2012, it would have been a valid decision for adoption by the local court as its decision with legal force; there would have been nothing wrong with it. The only issue in this case is that it had been filed late.
  11. There is simply no evidence whatsoever to support any suggestion that that document (AS Form) was forged, fraudulent, inaccurate, illegal or even improper. For all purposes, it is actually an accurate document summarizing the decision of the local court so that it can be recorded. The only impediment lies in the fact it was lodged out of time for recording. Had it been lodged within the 3 months’ time limit, it would have become a legally binding decision of the local court.
  12. Any suggestions of fraud or forgery therefore in the charges against the Appellant regarding that document, simply cannot hold any water and rightly described as frivolous and vexatious.
  13. The consequential effect of this is that all the charges associated with and in relation to that document must be dismissed as a nullity. This applies to all the counts from count 6 – count 13.

The letter of 19 December 2005.

  1. This letter is the subject of the charges contained in counts 1 – 7. The allegations raised in relation to this document are also that it has been forged, fabricated and, or used by the Appellant in such a way as to achieve an unlawful or illegal purpose, being, to claim that he is the owner of the Disputed Land. The validity, accuracy or correctness of that document therefore is also material to the issues raised in the charges against the Appellant.
  2. It is a relevant question in this appeal also to consider that document in detail.
  3. The questions about the origin, existence, validity and effect of this important document need to be carefully examined in the light of this appeal for it forms the substance of counts 1 – 7 of the charges against the Appellant.
  4. It is necessary in the first instance to consider the background facts as to how that document came into existence and its contents. This includes identifying the maker of the document and those associated with it.
  5. On the face of the document, it is alleged that the maker is Chief Letipiko for it contains his name and signature. It is also alleged that the document was signed by him while in prison at Rove.
  6. Three persons are closely linked to that document, the maker, Chief Letipiko and the two witnesses, Lore Ruben and Newton Jonah, who both claimed to have witnessed Chief Letipiko signing the document in prison.
  7. A copy of the letter is attached to the sworn statement of Aloni Niva filed on 20 April 2015 in civil case 171 of 2015, a copy of which is attached to his sworn statement filed on 7 September 2015 in this case.
  8. The copies of the statutory declarations of Lore Ruben and Newton Jonah are also attached to that same sworn statement of 20 April 2015.
  9. The contents of that letter read:
  10. On his release from prison, Chief Letipiko disputed the validity of that letter claiming it was forged, denying he signed the letter. This has given rise to the question of the validity of that document, whether it was a forgery and if so, who forged that document.
  11. The undisputed statutory declarations of Lore Ruben and Newton Jonah are directly relevant to the origins and existence of that document.
  12. The Respondent has not filed any material to rebut their declarations. There is no material in the files either to contradict the contents of their declarations. That should have been a necessary consideration in any assessments that the Crown makes when determining whether there is prima facie material in the use of that document.
  13. Apart from a suggestion that he (the Appellant) had instructed both Lore Ruben and Newton Jonah to raise the issue of ownership with Chief Letipiko in prison when they visited him, there is no evidence of forgery or fabrication that he can be directly impugned with. There is therefore nothing to link him with the allegations of forgery or fabrication of that document.
  14. Secondly, there is no evidence that he knew or was aware that the document was a forgery. The undisputed declarations of Lore Ruben and Newton Jonah should have removed any doubts or uncertainty about that fact. No one else has come up with any contrary claims apart from a mere denial by Chief Letipiko.
  15. If the matter goes to court, it will be his word as against the word or evidence of Lore Ruben and Newton Jonah. With Chief Letipiko having passed on, it is highly unlikely that any reasonable tribunal in the circumstances of this case will find in favour of a man who has had a previous conviction of forgery or fraud and imprisoned. The weight of evidence in this appeal clearly falls heavily in favour of Lore Ruben and Newton Jonah’s undisputed evidence.
  16. This raises the crucial question as to the credibility and reliability of the evidence against the Appellant in relation to that document. When considered in that light, I am not satisfied that it even comes close to the threshold of sufficient evidence to have him charged in the first place.
  17. Secondly, it should have been obvious from the start that there is nothing controversial, suspicious or confusing about the contents of that document. Late Chief Letipiko from the outset, had never disputed the ownership claims of the Appellant. He was present in the chiefs’ hearing of the MCC on 19 July 2011, which confirmed the decision of ownership on the Appellant.
  18. Even if the letter were a forgery, there would have been nothing adverse about its contents, for it only supports or confirms the correct position taken by Chief Letipiko all along, that ownership of the Disputed Land vests on the Appellant. The Nono tribe and the MCC in both of their decisions in 2008 and the MCC in 2011, confirmed ownership on the Appellant.
  19. While the decision of the MCC in 2008 was later challenged successfully by Chief Letipiko in civil case 267 of 2009 per judgement of Cameron J., that decision was overturned more on the grounds that he was not given opportunity to be heard. The correctness of the decision was never challenged, until in the second meeting in 2011 when Chief Letipiko was given opportunity to challenge the ownership claims of the Appellant but never did, instead agreeing with his claims.
  20. There is therefore nothing false or fraudulent about the findings and determinations of the MCC or the AS Form. Both correctly state the position of the parties in the dispute.
  21. That should have alerted prosecution in the allegations raised against the Appellant and caused a careful review to be conducted. Had that been done, the charges of fabricating evidence (counts 1 and 5), making use of fabricating evidence (count 2), false pretence (count 3), and uttering (count 4), in relation to the letter would never have been raised in the first place.
  22. I am satisfied accordingly that all the allegations instituted in relation to that document and contained in counts 1 – 7, stand no chance of ever succeeding before any reasonable tribunal and therefore ought to be dismissed forthwith.

Decision.

  1. Having found that the two crucial documents which formed the subject of the 13 counts in the charge against the Appellant have been dismissed, it is unnecessary thereby to go on to determine if a permanent stay should be considered there being no longer any valid charge in existence that would warrant that consideration.
  2. In any event, if any count had remained on the charge, I am equally satisfied there is clear and ample material before this court to warrant the submission by Mr. Rano of an ulterior motive and purpose in having those charges filed.
  3. The fruits of his claim as set out in the orders of the Court in civil case 241 of 2006[2] have been hindered and delayed by virtue of this criminal proceeding. I am satisfied they are therefore frivolous and vexatious and amounted to an abuse of the court’s process and ought to be permanently stayed as well.
  4. For the reasons given, I am satisfied that all 13 counts filed against the Appellant should be dismissed herewith.
  5. I note the Appellant asks for costs in the event of success, I am satisfied also that costs should be awarded in the circumstances of this case, to be assessed by the Registrar if not agreed.

Orders of the Court:

  1. Appeal allowed.
  2. Direct that all the charges instituted against the Appellant be dismissed herewith.
  3. The Appellant is entitled to his costs in this appeal, to be assessed by the Registrar if not agreed.

The Court.

[1] Aloni Nivah v. Letipiko Balesi and JP Enterprises Ltd and Ocean Trading Company Ltd CC 241 of 2006, (9th May 2014) per Faukona J.
[2] Aloni Nivah v. Letipiko Balesi and Others Civil Case 241 of 2006 (9 May 2014) per Faukona J.

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