Kabui v Attorney General [2022] SBHC 104; HCSI-CC 373 of 2020 (8 November 2022)

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Case name:	Kabui v Attorney General

Citation:

Date of decision:	8 November 2022

Parties:	Sir Frank Kabui v Attorney General, Samson Bongi, Daniel Maekafo, Samson Baega, Selwyn Makasi, David Loloemanu Auga, Philip Waletobata

Date of hearing:	4 October 2022

Court file number(s):	373 of 2020

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota; PJ

On appeal from:

Order:	For the reasons stated above, the orders sought by the Claimant are granted and the decision of the chiefs and the subsequent recording of it under section 14 of the Local Court Act is null and void and must be quashed. Cost for the Claimant to be taxed if not agreed.

Representation:	Mr Afeau P for the Claimant Ms Taki P for 1^st & 7^th Defendants Mr Toito’ona S for the 3, 4 & 6^th Defendant For 2rd and 5^th Defendant: N/A

Catchwords:

Words and phrases:

Legislation cited:	Local Court Act cap 19 S 14, S 14 (2)

Cases cited:

Mr Afeau P for the Claimant
Ms Taki P for 1^st & 7^th Defendants
Mr Toito’ona S for the 3, 4 & 6^th Defendant
For 2rd and 5^th Defendant: N/A

This is a claim for Judicial Review by the Claimants filed on 3^rd August 2020, seeking the following reliefs;

This matter progress through consideration under rule 15.3.18 and proceeded to trial.

The Claimant is a member of the Uraia Tribe being the male line in Ausamae. He is spokesman for all the sub-tribes of Ausamae in this matter. The Claimant avers that he is a direct descendant of Sauomea (Manubaita) and that he is connected to the male line on both Toloabu and Ausamae and is concerned with the unauthorised merger of Toloabu into Masu without his consent. Masu Tribe are settlers. He accepts them as neighbours but are separate in status and name from Toloabu. They are a separate tribe from the Claimant. A Malaita Local Court ruling 45 years ago determined that the Claimant’s father was the landowner but the two men from Masu could continue to live in harmony but would regard his father as the landowner.

A recent claim by Masu Tribe of discovery of traces of what looked like oil or gas in Masu began to change the relationship between the tribes. The Claimant had not said anything about this because he thinks Masu Tribe was entitled to do whatever they like within their boundaries.

In late September or early October 2019, the Claimant became aware of the fact that Masu Tribe had gone to the Chief in the area and secured the boundary of Masu with neighbouring tribes including Ausamae Tribe. The decision of the Chiefs was by agreement and mutual understanding allegedly reached on 29^th November 2018 and or 6^th September 2019. The determination was subsequently endorsed and adopted by the Malaita Local Court on 6^th September 2019 under section 14 of the Local Court Act, Cap 19.

The Claimant did not agree with the chiefs’ decision. However since the decision was based on mutual agreement of the parties involved and he could not refer the matter to the Local Court. He also says that since he was not a party to the agreement the chiefs decision as endorsed by the Malaita Local Court, he could not appeal to the Customary Land Appeal Court. By these decisions he said, Masu Tribe have swallowed up Toloabu by extending its boundaries as per agreement between the parties. The chiefs’ decision was recorded by the Malaita Local Court under section 14 of the Local Act.

Section14 of the Local Court Act states “Where, in any dispute referred to the chiefs, a decision wholly acceptable to both parties has been made by the chiefs, the chiefs or any of the parties to the dispute may, within three months from the date of the decision, cause a copy of the decision to be recorded by the Local Court.

In the present case the Claimant avers that there was no land or boundary dispute between Masu and Ausamae Tribes and as such no dispute was referred to the Chief for hearing within the meaning of section 14 (2) of the Local Court Act. Counsel for the Claimant submit that use of Form II (Accepted Settlement form) was inappropriate and misconceived either because of misunderstanding, misinterpretation or a pre-existing arrangement based on collusion of parties concerned.

Counsel for the First and Seventh Defendant submits that the Claimants challenge to the Local Court recording of the chiefs’ decision under section 14 of the Local Court Act is without merit. In view of the fact that there was no evidence that there was a land dispute between Ausamae and Masu Tribes to be referred to the chiefs to settle and for the chiefs or parties to file an accepted settlement form with the Local Court. I find it difficult to agree to the First and Seventh Defendants submission. I accept the submission of counsel for the Claimant that if there was no land or boundary dispute between Ausamae Tribe and Masu Tribes referred to the chiefs hence the chief have no jurisdiction to deal with the boundaries of Ausamae and Masu Tribes. In that respect, whatever process the Local Court followed when recording the chief’s decision cannot validate a void chiefs’ process. It only makes the Local Court action null and void itself.

The core of the Claimant’s claim is that the chiefs were wrong in law to deal with the boundary between Ausamae Land and Masu Land as there was no dispute over the boundary hence any subsequent proceeding which flows from the chiefs decision would also be invalid as it was based on an invalid chief’s process. I consider that is a valid point. I am of the view the chiefs jurisdiction can only be invoked if a dispute relating to customary land has been referred to the chiefs, otherwise the chiefs have no jurisdiction to deal with the land or its boundaries if there was no dispute. Thus while what the Masu Tribe did in reaching an agreement on their boundaries with other tribes is a noble thing, such agreement cannot be validly recorded under section 14 of the Local Court Act.

For the reasons stated above, the orders sought by the Claimant are granted and the decision of the chiefs and the subsequent recording of it under section 14 of the Local Court Act is null and void and must be quashed.

High Court of Solomon Islands

Kabui v Attorney General [2022] SBHC 104; HCSI-CC 373 of 2020 (8 November 2022)