So'o v Bako [2023] SBHC 112; HCSI-CC 224 of 2023 (24 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	So’o v Bako
Citation:
Date of decision:	24 October 2023
Parties:	Moses So’o, Wilson Kavena, Luisa Kaehavi, Martin Sagiva, Barnabas Hillary and Samson Sabu v Chief Lonsdale Pritt Bako and Boniface Supa, Isabel Customary Land Appeal Court
Date of hearing:	13 October 2023
Court file number(s):	224 OF 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I therefore hold that the Claimants has failed to satisfy the court on the requirements of r. 15.3.18 (a) and (d) of the CPR and I strike out the claim for judicial review filed on 19 May 2023 with cost under r. 15.3.20 of the rules. I hereby order accordingly.
Representation:	Mr Peter Teddy for the Claimants Mr Lazarus Kwaiga for the First Defendants Miss Pamela Rofeta for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] S 256 (1)
Cases cited:	Winne Properties Limited v Permanent Secretary of Communication and Civil Aviation [2023] SBCA 1

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 224 of 2023

BETWEEN

MOSES SO’O, WILSON KAVENA, LUISA KAEHAVI, MARTIN SAGIVA, BARNABAS HILLARY AND SAMSON SABU
Claimant s

AND:

CHIEF LONSDALE PRITT BAKO AND BONIFACE SUPA
First Defendant

AND:

ISABEL CUSTOMARY LAND APPEAL COURT
(Representing by the attorney General Chamber’s)
Second Defendants

Date of Hearing: 13 October 2023
Date of Decision: 24 October

Mr Peter Teddy for the Claimant
Mr Lazarus Kwaiga for the First Defendants
Miss Pamela Rofeta for the Second Defendant

Ruling

Bird PJ:

1. In this proceeding, the Claimant filed a Judicial Review Claim on 19 May 2023. Two sworn statement of Wilson Kavena were also filed on 19 May 2023 and 3 October 2023, supporting the claim for judicial review. The First and Second Defendants filed their respective defences and sworn statement in support. The claim of the Claimants is resisted by the Defendants.
2. In their Claim, the Claimants sought the following reliefs namely:
   1. A quashing order in declaring that the First Respondents are the customary landowners of the Sivoli-vahobau land and to be the trustees of the Sivoli-vahobau land when infact the Sivoli-vahobau land overlap within the Kamaosi customary land boundary;
   2. A mandatory order that Isabel Customary Land Appeal Court determined the issues of customary land boundaries of Kamaosi customary land with Sivoli-vahobau;
   3. An order reinstating the timber rights determination for Kamaosi customary land owned by the Claimants’ and their tribe;
   4. Further and other orders deems fit by the court;
   5. Costs and interests.
3. During a Chapter 15 Conference, the court must be satisfied of all requirements of rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 for a judicial review claim to progress to trial. I produce that rule:
   • r. 15.3.18The court will not hear the claim unless it is satisfied that:
   1. the claimant has an arguable case; and
   2. the claimant is directly affected by the subject matter of the claim; and
   100. there has been no undue delay in making the claim; and
   4. there is no other remedy that resolves the matter fully and directly.
4. In this case, the court had ascertained from the First and Second Defendants that the only contested issues are requirements (a) and (d) of r.15.2.18 of the rules. In that regard, the requirements of (b) and (c) are non-issues. I can therefore hold that those requirements are met and need no further submissions on them.
5. As per requirement (a) of the relevant rule, it is submitted by Mr Teddy of counsel that his clients have an arguable case. It is submitted that the Second Defendant had committed a jurisdictional error in the performance of its duties when it refused to determine issues of customary land boundaries of Kamaosi customary land Sivoli-vahobau lands and declared such matters were best left to the customary land tribunals to determine.
6. In support of his argument, Mr Teddy relies on the principle stated in the case of Winne Properties Limited v Permanent Secretary of Communication and Civil Aviation [2023] SBCA 1; SBCA –CAC 17 of 2022 when they stated “We are satisfied this ground should be allowed in that all that was needed to be established at such a conference hearing is for the Claimant (Appellant) to show to the satisfaction of the court that contested matters exist, which will need to be considered further in detail at trial”.
7. It is further submitted by Counsel Mr Teddy that the Second Defendant had erred when it failed to take into account and consider relevant court decisions that were submitted by the Claimants during hearing.
8. In respect of the requirement of sub-paragraph (d), it is submitted by Mr Teddy of counsel that in respect of the decision of the Second Defendant. There is no other alternative remedy available that could resolve the matter fully and directly but through a judicial review claim. It is submitted that other courts lacks jurisdiction to entertain the issues raised in this proceeding. It is therefore submitted that all the four requirements of r. 15.3.18 are satisfied by the Claimant and this claim should be allowed to proceed to trial.

The case for the First Defendants

9. On behalf of the First Defendants, it is argued by Mr Kwaiga of counsel that the Claimants do not have an arguable case. The claim of the Claimants is based on ownership of Kamaosi customary land and that is clear in the reliefs that are sought by them. The reliefs sought also hinges on the overlap of land boundary between Kamaosi and Sivoli-vahobau customary lands.
10. It is the case for the First Defendants that the lands that were a subject to the Form 1 application are called Puipusi Pasaghu Thogokama and Mahaga Seako customary land. See page 3 of annexure marked “KV1” to the sworn statement of Wilson Kavena filed on 19 May 2023. In annexure marked “KV3” to the same sworn statement which contained the Form 2 determination also relate to the same land names. There is no mention of Kamaosi customary land in those two documents. It is therefore submitted that the only lands that were the subject of the timber rights hearing were Puipusi Pasaghu Thogokama and Mahaga Seako customary lands. Kamaosi land was mentioned in the discussion by the Second Defendant in their decision of 7 and 9 November 2022 but they conceded that issues of boundary was still litigated between the parties. A Local Court referral in Land Case 8/18 is still pending hearing on that issue.
11. It follows therefore that the reliefs sought in paragraphs 1 and 2 of the orders sought hinges on issues of boundary of Kamaosi and Sivoli-vahobau customary lands and it is submitted by Mr Kwaiga of counsel that this court lacks jurisdiction to entertain issues of land boundary. So even if the matter proceeds to trial, this court will still be faced with that hurdle.
12. It is therefore the case for the First Defendants that the Claimants have not displayed an arguable case and the claim for judicial review should be struck out under r. 18.3.20 of the rules.
13. Taking it further to the requirement of r. 15.3.18 (d), it is submitted by Mr Kwaiga of counsel that since the issue of boundary is a live issue between the Claimants and the First Defendants, there is an alternative remedy available to them that would resolve the matter fully and directly. That alternative remedy is to utilise the land court systems available to them. A referral is already before the Isabel Local Court in Land Case 8/18. That referral must and should be dealt with by the Local Court to further assist this court.
14. On the totality therefore, it is submitted by Mr Kwaiga of counsel that the Claimants have failed to satisfy the requirements of r. 15.3.18 (a) and (d) and the claim for judicial review filed on 19 May 2023 be struck out under r. 15.3.20 of the rules with cost.

The case for the Second Defendants

15. On behalf of the Second Defendants, Mr Rofeta of counsel only raises issue on requirement (a) of r. 15.3.18 of the rules. It is submitted by Counsel Ms Rofeta that the Claimants do not have an arguable case. It is argued that the Second Defendant had performed its functions in accordance with the FRTUA. Their statutory duties under the FRTUA do not included determination of land boundaries. The reliefs sought in paragraphs 1 and 2 of the Claim do not include the powers of the Second Defendant under the Act. The Claim filed on 19 May 2023 should be struck out with cost.

Discussion

16. I have perused the Claim for Judicial Review filed by the Claimants together with their supporting sworn statements. I have also perused the respective Defences filed by the First and Second Defendants and their sworn statements in support. It is obvious that there have been misstatement of land names by the Isabel Provincial Executive as well as the Second Defendant.
17. The Form I application referred to two land names namely Puipusi Pasaghu Thogokama and Mahaga Seako customary lands. The Form II Determination also referred the said lands as the same lands mentioned in the Form I application. See annexure marked “KV3” to the sworn statement of Wilson Kavena filed on 19 May 2023.
18. When the Second Defendant ruled upon the appeal of the First Defendants, the land name was changed to Sivoli-vahobau customary land. With due respect, that land was not mentioned in the Form I application nor in the Form II Determination but the Second Defendant had granted timber rights over a land not mentioned in the initial process, upon appeal to the First Defendants.
19. It is also obvious that the real issue between the Claimants and the First Defendants would be an issue of boundary of their respective customary lands. That issue had been escalated by the Second Defendant in their ruling when they granted timber rights over land not named in the Form I application and Form II Determination. How then can this court interfere in judicial review proceedings. It is obvious that an error had been committed by the Second Defendant when they included land which was not named in the due process of the requirement of the FRTUA, but all requirements of r. 15.3.18 must be satisfied in a claim for judicial review.
20. Upon the above discussions, I have noted that the reliefs claimed under paragraphs 1, 2 of the Claim for Judicial Review are beyond the powers vested in the Second Defendants under the provisions of the FRTUA, and I am not satisfied that the Claimants had disclosed an arguable case in that regard. I am also not satisfied that there is no alternative remedy that could determine the matter fully and directly. There is a current referral to the Isabel Local on the issue of boundary between the parties. The Second Defendant and this court lacks jurisdiction to determine boundary of customary land. In any event, the Customary Land Appeal Court could deal with boundary issues of customary lands upon appeal pursuant to s. 256 (1) of the Land and Titles Act (133). In this case, they were not convened as such. I therefore hold that the Claimants has failed to satisfy the court on the requirements of r. 15.3.18 (a) and (d) of the CPR and I strike out the claim for judicial review filed on 19 May 2023 with cost under r. 15.3.20 of the rules. I hereby order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge