Gusa v Sikua [2024] SBHC 24; HCSI-CC 679 of 2020 (26 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gusa v Sikua
Citation:
Date of decision:	26 March 2024
Parties:	Simon Gusa, David Thuri and Robinson Kilua v Alban Sikua
Date of hearing:	12 March 2024
Court file number(s):	679 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	(1) The Claimants are entitled to represent the Ting Ngi Ti tribe for this proceeding. (2) That the Defendant trespassed onto South Sinogo customary land in North East Guadalcanal, Guadalcanal Province. (3) That the Defendant, his family members, agents, servants and relatives, to immediately vacate the South Sinogo customary land in North East Guadalcanal, Guadalcanal Province. (4) That the Defendant, his family members, agents, servants and relatives, are permanently restrained from re-entering or residing within the South Sinogo customary land in North East Guadalcanal, Guadalcanal Province. (5) That the Royal Solomon Islands Police Force (RSIPF) is authorised to assist in the compliance and enforcement of these Orders. (6) Cost of this application is to be paid to the Claimants on standard basis, to be taxed, if not agreed.
Representation:	Mr J Iroga for the Claimants Mr N Laurere for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act S 12 (2), S 14 (2)
Cases cited:	Paasi v Heroau [2008] SBHC 59, Alex v Alekova [2010] SBHC 64, Reinunu v Isa [2015] SBHC 61, Rausu v Kagabule [2022] SBHC 47, Ghemu v Namusi [2016] SBHC 133,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 679 of 2020

BETWEEN

SIMON GUSA, DAVID THURI AND ROBINSON KILUA
(Appointed representatives of Ting Ngi Tribes)
Claimants

AND

ALBAN SIKUA
(Representing Himself and Members of his Family and Clan
Defendant

Date of Hearing: 12 March 2024
Date of Judgment: 26 March 2024

Mr J Iroga for the Claimant
Mr N Laurere for the Defendant

JUDGMENT

Commissioner Aulanga

1. The issue for this Court is whether or not the Claimants are entitled in custom to represent the Ting Ngi Ti tribe for this proceeding. Summary judgment already entered by the Court on 1^st November 2021 in that the Ting Ngi Ti tribe, as awarded by the Local Court in 1985, has been confirmed as the owner of the South Sinogo customary land in North East Guadalcanal, Guadalcanal Province. Since the Court has already made a decision on this aspect through summary judgment, it is improper for me to revisit or set aside that finding. The only remaining issue, as required in the Court’s ruling, is the entitlement of the Claimants in custom to represent the Ting Ngi Ti tribe for this proceeding.
2. Rule 3.42 of the Solomon Islands Courts (Civil Procedure) Rules 2007 states:
   • “A person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing a community, line or group, but the court, on the application of any party, or on its own initiative, may require that person to provide proof of their entitlement in custom to act as such a representative before any further step in the proceeding may take place.”
3. In Paasi v Heroau^[1], Justice Izuako made the following important observations about custom in general and the entitlement of a person in custom to represent a group in a Court proceeding under Rule 3.42:
   • “The word custom in the Oxford English dictionary is defined as a traditional way of behaving or doing something that is specific to a particular society, place or time. It is also defined as established usage having the force of law or right.
   • Where the wordings of Rule 3.42 speak to being entitled in custom, it properly means being eligible, qualified or having a right under the traditions of the particular community, tribe or line.”^[2]
4. The Court went on to explain:
   • “When therefore there is a reference to custom as in Rule 3.42, it is understood that it relates to the traditional way of doing things in the community or tribe as distinct from the provisions of or expectations of the common law, or received English law.
   • In traditional societies or communities such as those in the Solomon Islands and elsewhere where customs as described above are recognised in the law, what then may entitle a person in custom to represent or speak for or on behalf of a community or tribe or line? There can be no dispute that the position held by the person within the community is critical to determining such entitlement. This position may be conferred by circumstances of birth, by achievement within the community or by blood ties, or indeed by all three.”^[3]
5. In Alex v Alekova^[4], the applicant applied for revocation of letters of administration granted earlier to the respondent. He also sought an order that he be granted the letters of administration. The application was made by the applicant as a representative of his Lolobo tribe. At the hearing of the application, the respondent sought an order under Rule 3.42 for the applicant to provide proof of his entitlement to represent the tribe. However, the evidence adduced confirmed that some of the members of the applicant's tribe were in favour of the applicant representing the tribe while some were not. The application was dismissed on the basis that there was a division within their tribe and as such, the applicant can only bring the action on his personal capacity and not on behalf of the tribe.
6. For this case, the Defendant made various submissions, amongst others, regarding the erroneous reliance by the Claimants on the 1985 Local Court decision. In my view, these are matters relevant only to a proceeding to overturn that Local Court’s finding.
7. Further, the evidence in the sworn statement of Alban Sikua filed on 25^th January 2024 made reference to a lot of matters worthy of noting. One obvious one was the procedural impropriety and erroneous reliance on the 1985 Local Court decision due to noncompliance with the Local Court Act. In my view, this submission is misconceived as this matter can only be raised on appeal hearing against that Local Court decision. A recent Manesavuni Kolamali House of Chiefs’ one-side hearing settlement that took place on 12^th January 2024 was also raised, to assert that the Claimants were from different tribe other than the Ting Ngi Ti tribe. The implication of this submission is that this 2024 Chiefs’ decision should be reliable and conclusive customary evidence than the contrary evidence of the Claimants.
8. Whilst a decision from the Chiefs under the Local Court Act can be considered a reliable customary evidence to confirm the standing of a person to represent a tribe in the Court, it must be noted that it is not conclusive and can be unreliable, and eventually be ignored in some circumstances. In this case, it is my view that I will reject any reliance on this 2024 Chiefs’ decision as reliable and conclusive evidence to prove the entitlement of the Claimants to represent the Ting Ngi Ti tribe. I did so for two principal reasons. First, the decision itself was not written in the Unaccepted Settlement Form (Form I) as required under section 12 (2) of the Local Court Act or Accepted Settlement Form (Form II) as required under section 14 (2) of the Local Court Act. It was prepared in an unrecognised template but certainly runs foul to the two sections referred to above under the Local Court Act. So how can this Court will rely on a Chiefs’ decision that is unclear or manifestly vague on whether the parties to that Chiefs’ settlement have accepted that Chiefs’ decision as binding customary evidence, proving the entitlement of the Claimants or vice versa to represent the Ting Ngi Ti tribe in this proceeding? In the absence of this, it is safe just to ignore or disregard that decision.
9. Second, this is a one-sided hearing which according to case precedents, no dispute is said to have been resolved before the Chiefs. Therefore, this Court cannot rely on a decision as evidence proper in custom based on a Chiefs’ decision with unresolved settlement of dispute. The law on this is well settled in this jurisdiction. For example, in Grossmitt v Biku^[5], the Court held that traditional means of resolving dispute requires “both litigants to appear and present their case.”^[6] Both parties must present their case before the Chiefs and not just one party. In the absence of one party, the Court therein expressed that there would be no dispute that requires the Chiefs to consider and resolve. In explaining traditional means of resolving a dispute in Solomon Islands, the Court in Reinunu v Isa^[7], has clarified it as an inclusive way or mechanism of resolving customary dispute that requires the attendance of all the disputing parties. The attendance of all the parties is crucial for the purpose of affording them the opportunity to present their case before a decision is made. This is a necessary precondition for the proper resolution of the dispute. In so saying, the Court echoed:
   • “What is traditional means is broad in interpretation, however, traditional leaders in Solomon Islands resolved dispute in the presence of all parties, not just one party. That is traditional means in resolving disputes in Solomon Islands.”^[8]
10. More recently in Rausu v Kagabule^[9], the High Court now considered a one-sided hearing as improper and should be discouraged when dealing with a land dispute settlement. At paragraphs 19 and 20, Faukona DCJ states:
    • “On the issue of the Chiefs hearing and determination, it ought to be acknowledged that we are trying to discourage the process of onesided hearing. It won’t resolve any land dispute. Both parties must be present before the Chiefs proceed. That is the intention of the Local Court Act. In furtherance, if any party wishes to object any members of the Chiefs’ panel that must be done as the first agenda in the Chiefs’ hearing. Both sides must be heard whether the objections are valid or not. Then allow Chiefs to considers and make determination on.”^[10]
11. The net effect of those case authorities is that a decision given by the Chiefs in the absence of one party will not be recognised in law as binding and acceptable resolution of a dispute before the Chiefs for the purpose of customary settlement of disputes. Anything short of will defeat the intention of the Local Court Act and will only leave the decision unrecognised in law and open to further litigation at the Local Court.
12. I am conscious that this issue on the validity or acceptability of the 2024 Chiefs’ decision will be properly, if not, further raised or litigated at the appropriate forum. However, I make these remarks as to the relevance of this Chiefs’ decision to this present proceeding in terms on the issue of whether this Court can accept as conclusive evidence regarding the representations of the Claimants in custom for the Ting Ngi Ti tribe.
13. Going by the decision of Justice Isuako in Paasi v Heroau^[11], cited earlier, determining the person’s entitlement in custom under Rule 3.42 can be by “being eligible, qualified or having a right under the traditions of the particular community, tribe or line.”^[12] This may be conferred by circumstances of birth, by achievement within the community or by blood ties or by all three of them.^[13] Applying these legal sentiments to this case, the evidence in the sworn statement of Simon Gusa, filed on 17^th October 2023, shows he and the other named Claimants are members of the Ting Ngi Ti tribe in custom and through blood ties connection as well. Two paramount Chiefs of Aola Ward who were also the tribal chiefs of the Ting Ngi Ti tribe namely Robert Manengelea Thuri and Paul Tara Junior have authorised the Claimants to represent the Ting Ngi Ti tribe for this proceeding. There is also evidence annexed as “G1” of that sworn statement showing signatories of about 47 individuals from Ting Ngi Ti tribal members offering their support and consent for the Claimants to represent them in this proceeding. This evidence itself is sufficient to qualify the Claimants to represent the Ting Ngi Ti tribe in this proceeding as required under Rule 3.42.
14. The matters raised in the sworn statement of Shedrack Maneghaua, a lone witness from Ting Ngi Ti tribe, filed on 26^th October 2023, when considered against the entirety of the evidence of the Claimants does not show any division within the Ting Ngi Ti tribe on representation of the Claimants for this proceeding. In fact, they raised matters that go beyond the jurisdiction of this Court to undertake such finding. As said by the Court in Ghemu v Namusi^[14], matters regarding cultural leadership and chieftaincy of persons are best reserved for the customary courts or the Chiefs, and not for the High Court.^[15] Based on that reason, I therefore decline to make any comments on this for want of jurisdiction.
15. In closing, I have considered the materials and accordingly, I am satisfied with the respective evidence of the Claimants as sufficient evidence to show proof in custom for them to represent the Ting Ngi Ti tribe for this proceeding. Reliefs 1, 3 and 4 in the claim are granted. Refused to grant the reliefs for assessment of damage due to this case is for eviction of settlers from a customary land. Cost of this hearing is to be paid to the Claimants on standard basis, to be taxed, if not agreed. I further order that the Royal Solomon Islands Police Force (RSIPF) is authorised to assist in the compliance and enforcement of these Orders.

Orders of the court

(1) The Claimants are entitled to represent the Ting Ngi Ti tribe for this proceeding.
(2) That the Defendant trespassed onto South Sinogo customary land in North East Guadalcanal, Guadalcanal Province.
(3) That the Defendant, his family members, agents, servants and relatives, to immediately vacate the South Sinogo customary land in North East Guadalcanal, Guadalcanal Province.
(4) That the Defendant, his family members, agents, servants and relatives, are permanently restrained from re-entering or residing within the South Sinogo customary land in North East Guadalcanal, Guadalcanal Province.
(5) That the Royal Solomon Islands Police Force (RSIPF) is authorised to assist in the compliance and enforcement of these Orders.
(6) Cost of this application is to be paid to the Claimants on standard basis, to be taxed, if not agreed.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] [2008] SBHC 59.
^[2] At page 5.
^[3] Ibid.
^[4] [2010] SBHC 64.
^[5] [2008] SBHC 89; HCSI-CC 331 of 2007.
^[6] At page 2.
^[7] [2015] SBHC 61; HCSI-CC 453 of 2011.
^[8] At paragraph 20.
^[9] [2022] SHC 47.
^[10] ibid.
^[11] [2008] SBHC 59.
^[12] At page 5.
^[13] ibid.
^[14] [2016] SBHC 133.
^[15] At paragraph 11.