Taluiburi v Bai [2023] SBHC 73; HCSI-CC 382 of 2022 (23 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Taluiburi v Bai
Citation:
Date of decision:	23 August 2023
Parties:	David Taluiburi, Alfred Taebae’a and Patterson Irokona v Wilfred Bai, Kikiolo Sarumae, Sale Iroagalo, Emmanuel Iuramo, Otagerea Riifalu, Philip Taloinao, Stanley Hagwainao and Paul Iroota
Date of hearing:	14 November 2022
Court file number(s):	382 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota, PJ
On appeal from:
Order:	The claim must therefore be dismissed with cost against the Claimant.
Representation:	Olofia E for the Claimant/Respondent Etomea B H for the First and Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act S 11 and S 12 Solomon Islands Courts (Civil Procedure) Rule, r 15.3.18
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 382 of 2022

BETWEEN

DAVID TALUIBURI, ALFRED TAEBAE’A AND PATTERSON IROKONA
Claimant

AND:

WILFRED BAI, KIKIOLO SARUMAE, SALE IROAGALO, EMMANUEL IURAMO, OTAGEREA RIIFALU (Members of the Toobaita House of Chief)
First Defendant

AND:

PHILIP TALOINAO, STANLEY HAGWAINAO AND PAUL IROOTA
(Representing the Eke Tribe of Toobaita)
Second Defendant

Date of Hearing: 14 November 2022
Date of Ruling: 23 August 2023

Olofia E for the Claimants/ Respondent
Etomea Ben H for the First and Second Defendant

RULING ON A CLAIM JUDICIAL REVIEW

Kouhota PJ

This is a claim for Judicial Review by the claimants filed on 2^nd September 2022, seeking the following reliefs;

1. An order quashing the decision to manipulate house of chief dated 27^th June 2022 in that the said decision breached the orders of the Malaita Local Court dated 13^th April 2021 in land case No. 03 of 1993.
2. In the alternative to Order 1, the 1^st defendant acted ultra vires pursuant to section 11 and 12 of the Local Court Act
3. Consequential to order 1, an order remitting the customary land dispute between the Claimant’s Family Tribe and 2^nd Defendant’s eke Tribe to be heard by an impartial House of Chiefs within To’obaita region.
4. Cos on Indemnity basis against the Defendants
5. Any orders the Court deems fit in the circumstances

On 13^th April 2021, the Malaita Local Court in a case between Samuel R Tosafu (plaintiff) and Abuota (defendant) made the following orders;

1. Set aside the Chiefs decision of 20^th October 1993.
2. Refer both parties to an agreed panel of Chiefs within the locality of the land with order for both parties to equally share cost of Chiefs settlement.’
3. Order the Chiefs to also hear stories of party witnesses from neighbouring lands/tribes and to survey the land, record the boundary marks and tambu sites within as requested and parties and attempt to determine the issues touched on in this ruling.
4. The Party who cannot accept the decision of the Chiefs can refer the dispute to the Local Court with order for Chiefs to produce minutes of their hearing together with Forms 1 “Unaccepted Settlement”
5. Parties to bear own costs. After the Local Court orders, the dispute was heard by the Manulafa House of Chiefs

Both parties seemed to accept the Ruling of the Local Court but could not agree on the panel of Chiefs to hear their dispute. The claimant asserts that without their consent and agreement as ordered by the Malaita Local Court the Second Defendant engaged the 1^st Defendant to hear their dispute on 5^th October 2021, at Malu’u Court House.

There are conflicting evidence on the Issue of Manulafa House of Chiefs, hearing the dispute. The second Defendant said that the parties agreed for Manulafa house of Chiefs to hear the dispute. This was confirmed by the Sworn Statement of Wilfred Bai the President of the Manulafa House of Chiefs.

The Claimant on the other hand said that, they have not agreed for the Manulafa House of Chief to hear their dispute. In fact the Claimant send the First Defendant an objection letter from L & L Lawyers dated 1^st October 2021, objecting the First Defendant hearing the dispute alleging that some of the Chiefs of the Manulafa house of chiefs were key witnesses for the Second Defendant and that the order of the Local Court was that the parties should agree on the Chiefs panel to hear their dispute. The Claimant had not provided evidence that some of the Chiefs were key witnesses for the Second Defendant.

I accept the evidence of Wilfred Bai Chairman of the Manulafa house of Chiefs that the parties agreed for Manulafa House of Chiefs to hear their dispute. This means that the First Defendant had not acted ultra vires of section 11 and 12 of the Local Act.

On the issue of objection my view is that the proceeding of the Panel of the Chiefs is not a court hearing not do the Chiefs sit as a Court. The Local Act does not provide procedures to govern the proceeding of chiefs using traditional means of resolving land dispute. Section 11 of the Act however provide that they must be chiefs residing within the locality of the land in dispute and must be recognised as chiefs by the parties to the dispute.

Since the Act require that the chiefs must reside within the locality of the land in dispute, I am of the view that the Act intend that the Chiefs must have knowledge of the land in dispute. This in my view to allow the Chiefs to use their personal knowledge of the land in dispute to resolve the land dispute without having to look for evidence from outside. Because the Act allow chief to use their personal knowledge in the land in dispute to resolve the land dispute, the issue of bias should not arise.

In the presents case the Claimant were objecting the Mamalafu house of Chief because some of the chief have witness for the Second Defendant in the past case but Claimant provide no evidence to support this allegation. In any event since the Chiefs are allowed to use their personal knowledge of the land in dispute to resolve the land dispute the issue of bias does not arise.

The only time the Chief would be barred from hearing a dispute is when the Chief do not reside within the locality of the land in dispute, when they are parties to the dispute or when the parties to the land in dispute do not recognise them as chiefs. The only requirement the Chief must meet to hear a dispute are as in section 11 of the Local Act, but the act does not make exception to those qualifications. The objection to Manulafa Chiefs form hearing the dispute was not based on the qualification of the Chief to hear the dispute.

In view of the views I express on the issue that the bias does not arise, if chief are not parties to the dispute and that they can use their personal knowledge of the land in dispute to resolve the dispute, the Court consider the claimant’s objection to Manulafa House of Chief is not a valid objection

In that respect there was nothing wrong with Manulafa house of chief proceeding to hear the dispute between the parties. The Manulafa house of chiefs have made its decision thus Claimant, if they do not accept the decision they can refer the dispute to the Malaita Local Court. In that respect I find that claimant had not satisfied with the provision of rule 15.3.18 because the Claimant has other avenues and remedy to resolve the dispute. The claim must therefore be dismissed with cost against the Claimant.

The Court
Emmanuel Kouhota
Puisne Judge