Abana v Kasiano [2023] SBHC 95; HCSI-CC 719 of 2021 (22 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Abana v Kasiano
Citation:
Date of decision:	22 August 2023
Parties:	Willie Abana v Francis Kasiano, Godwin Rikimae, Max Bobby, Jackson Seni, Reuben Are, David Niui and Marlon Are
Date of hearing:	28 July 2023
Court file number(s):	719 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I hereby hold that the appeal is misconceived and is an abuse of the process of the court and I dismiss it under rule 9.75 (c) of the CPR. In view of that order, I need not rule on the application of the applicants for joinder. I hereby refer all interested parties to commence land dispute proceeding before the relevant house of chiefs for determination on the ownership of Manu customary land under s.12 of the Local Courts Act. I hereby order accordingly.
Representation:	Mr Simon Fiuta for the Appellant Mr Ben Etomea for the First Respondent No Appearance for the Second and third Defendant Mr Nickson K Sariki for the fourth Respondent Mr Michael Ipo for the Applicants for Joinder
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 16.10 and 16.11, Land and Titles Act S 256 [cap 133] Local Court Act [cap 19] S 12,
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 719 of 2021

BETWEEN

WILLIE ABANA
Appellant

AND:

FRANCIS KASIANO
First Defendant

AND:

GODWIN RIKIMAE
Second Defendant

AND:

MAX BOBBY
Third Respondent

AND:

JACKSON SENI
Fourth Respondent

AND:

REUBEN ARE, DAVID NIUI AND MARLON ARE
(Representing the Descendants of Kaumanu, West Kwara’ae, Malaita Province)
Joinder Applicants

Date of Hearing: 28 July 2023
Date of Decision: 22 August 2023

Mr Simon Fiuta for the Appellant
Mr Ben Etomea for the First Respondent
No appearance for the Second and Third Defendant
Mr Nickson K Sariki for the Fourth Respondent
Mr Michael Ipo for the Applicants for Joinder

RULING

Bird PJ:

1. The substance of this matter stems out from a notice of appeal to this court against the decision of the Malaita Customary Land Appeal Court (MCLAC) dated 12 November 2021. The land in issue is Manu customary land situated in West Kwara’ae, Malaita Province.
2. The application that this court must determine at this stage is the application of the applicants filed on 9 March 2023 for joinder pursuant to rule 16.10 and 16.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR).
3. During the hearing of the application for joinder, the court had enquired about the land court decisions that brought about this appeal. The court was informed by counsel for the parties to this appeal that there was no decision that had effectively awarded ownership of Manu customary land to any of the parties to this appeal. I am informed that the chief’s decision dated 4 December 2020 awarded ownership of Manu customary land to the fourth respondent.
4. A referral was made to the Malaita Local Court (MLC) by the first respondent. On 23^rd August 2021, the MLC set aside the decision of the chiefs dated December 2020 and the referral was dismissed. Being aggrieved with that decision, the current appellant lodged an appeal to the MCLAC the MCLAC heard the appellant’s appeal on 4 November 2021 and delivered its judgment on 12 November 2021. The MCLAC dismissed the appeal and upheld the decision of the MLC dated 23 August 2021. They further upheld the decision of the MLC in part whereby quashing order 2 of the decision of the MLC. So as per the MLC decision and the MCLAC decision, there is no decision in respect of the ownership of Manu customary land as between the parties to this appeal to date.
5. I have noted from discussions by the MLC and the MCLAC in their respective judgments on the issue that there is pending before this court an appeal in Civil Case 99 of 2017. My own investigation in that case reveals that the lawyers involved are Mr Iroga, as well as a lawyer from the Public Solicitors Office and a lawyer from the Attorney General’s Chambers. That appeal is still pending resolution by this court. It was last mentioned on 9 November 2021 and has been store away for non-prosecution. The matter is an appeal from the decision of the Magistrate Court on the acquisition of land for B-Mobile tower. In that regard, the issue of ownership of Manu customary land is and will not be an issue in that appeal.
6. Having said that, I am not assisted by any of the parties to this appeal as to whether or not there are valid and binding land court decisions that hinges on the ownership of Manu customary land. The decision of the MCLAC dated 12 November 2021, did not award ownership of the subject land to any of the parties as well. In the absence of a valid and binding decision of the relevant land courts, how could the powers of this court under section 256 of the Land and Titles Act (LTA) (cap 133) be invoked?
7. This court can only have jurisdiction under s.256 of the LTA if and when a decision of the Customary Land Appeal Court that hinges on the ownership of a subject land is raised. In this particular case, ownership of the Manu customary land is not even vested in any of the parties to this appeal. The chiefs’ decision of 4 December 2020 that awarded ownership of the subject land to the fourth respondent has been set aside by the MLC. In light of that decision, what could have stopped any of the disputing parting from bringing the dispute before the relevant House of Chiefs within the locality of the subject land? I see no legal impediment that could have stopped the disputing parties to invoke section 12 of the Local Courts Act (cap 19) so that their disputes could be entertained at that level.
8. In light of the above discussion, I am of the view that in respect of the appellant’s amended notice of appeal filed on 13 May 2023, I hereby hold that the appeal is misconceived and is an abuse of the process of the court and I dismiss it under rule 9.75 (c) of the CPR. In view of that order, I need not rule on the application of the applicants for joinder. I hereby refer all interested parties to commence land dispute proceeding before the relevant house of chiefs for determination on the ownership of Manu customary land under s.12 of the Local Courts Act. I hereby order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge