Kere v Reinunu [2024] SBHC 3; HCSI-CC 673 of 2021 (2 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kere v Reinunu
Citation:
Date of decision:	2 February 2024
Parties:	Kasiano Kere v Wore (representing Onesimo Reinunu
Date of hearing:	18 July 2023
Court file number(s):	673 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1. Appeal is dismissed in it entirety 2. Cost against the appellant to be taxed if not agreed.
Representation:	Nimepo for the Appellant Suri G for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 256 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 673 of 2021

BETWEEN

KASIAO KERE
Appellant

AND:

WORE (REPRESENTING ONESIMO REINUNU)
Respondent

Date of Hearing: 18 July 2023
Date of Ruling: 2 February 2024

Nimepo D for the Appellant
Suri G for the Respondent

JUDGMENT ON APPEAL FROM CLAC

Kouhota PJ

The Appellant appeals against the whole of the Ruling on Preliminary Matters of that GCLAC given on 1^st November 2021 and 5^th November 2021.

The grounds for the Appeal on Judgment of November 1^st, 2021 and November 5^th 202, are;

The Guadalcanal Customary Land Appeal Court (GCLAC) erred in its ruling by merging High Court Cases 5 of 2020 and High Court Cases 47 of 2020.

(a) The GCLAC erred, has no jurisdictional power to merge HC Case 47 of 2020 and High Court Cases 5 of 2020. They have no jurisdictional powers to merge the High Court Cases. High Court 5 of 2020 and 47 of 2020 are within the jurisdiction of the High Court and not the within the jurisdiction Guadalcanal Customary Land Appeal Court.

• (i) The GCLAC fail to hear and take into consideration evidence and objection by Appellant to stop new witness and new evidences. As any new evidence and witnesses must be made where good cause is shown why such evidence was not heard in the local court. The GCLAC does not consider the appellant objection evidence in allowing fresh evidence and witnesses. They have pre-determined their decision.
• (ii) The GCLAC is erred in allowing new evidence and witnesses. When the Court in High Court Cases 5 of 2020 allows only four (4) months the appeal must be heard with no fresh with no or new notice of appeal to be lodged but the same notice of appeal of from GLC to be heard.
• (iii) That the GCLAC has erred in its ruling when deviated of its jurisdiction and accept new facts and evidence which the High Court decision in HCC 5 of 2020 have determined and ordered to do. Any evidences or facts must in compliance with the Notice of Appeal filed by Respondent which was struck by HC in HCC 5 of 2020.
• (iv) That the GLAC erred in its ruling to allow fresh evidence and witnesses or new parties. Any facts in custom or law must be those that are appealed from GLC to the GCLAC, however it must comply with the order of the High Court of July 28^th 2020.

B) HIGH COURT CASE NO.5 of 2020, SIRIAKO USA V ONESIMO REINUNU

1. The GCLAC erred in its ruling that an appeal to the High Court by the Appellant to the decision of the GCLAC decision on November 12^th 2019 in GCLAC 7 of 2019. High Court Case 5 of 2020.

ii) On July 28^th 2020, High Court in Cases 5 of 2020 made its final Judgement as follows:

(a) Appeal notice filed on 13^th January 2020 is hereby struck out
(b) Since the GCLAC, is the next Court below which assume jurisdiction to hear cannot run contrary to its orders remitting the case to be heard in the GLC
(c) To pave the way for GCLAC to rehear the appeal from the GLA, I must quash the decision of the GCLAC.
(d) Order that differently constituted GCLAC to rehear the appeal in full, and if parties require land survey it must be done.
(e) The appeal must be heard within four (4) months from the date of this ruling

2. The GCLAC erred and allow the appeal when it is out of time and further the High Court Judgement is final and can only be challenged through appeal to the Court of Appeal which was never done to date and is time barred. The Judgment of July 28^th 2020 remains.
3. The GCLAC erred in its ruling by allowing the respondent to hear its appeal when they did not comply with order (e) of the ruling. Which ordered the any appeal from the GLC must be done on the date of ruling and must be done within 4 months. They have not taken any steps to convene the GCLAC within the 4 months. The statutory requirement to appeal is spelled out in section 256 (1) of the Lands and Titles Act provides appeals from Local Court to CLAC within three (3) months. They have never filed any appeal within the period required to do so as ordered or 4 months. They are now time barred and or out of time.

C) JURISDICTION OF THE GUADALCANAL CUSTOMARY LAND APPEAL LOCAL.

1. The GCLAC has erred in its ruling in allowing the hearing when it is out of time. The Ruling have not been complied with by the Respondent. The 4 months as ordered by the Court must be complied with. Section 256 (1) subsection 2 allows the GCLAC may make any decision or order as it seem just in the circumstances of any case. It has jurisdiction in law and custom to hear any appeal, however, the High Court Case in 5 of 2020 must be compiled with as it is the further appellant court after the GCLAC.
   • (i) The Respondent did not comply with the order or the decision of the Court and its appeal now must be refused
   • (ii) To dislodged Justice Faukona ruling in HCC 5 of 2020 the Appellant must appeal the ruling or filed any clarification to the Court if it requires.
   • (iii) The GLAC erred in facts and in point of law or custom to be heard must not deviate from the notice of appeal. No fresh evidences nor new witness must be introduced from its original appeal from GLC and must comply with order of the High Court within 4 months.

d) HIGH COURT CASE 47 OF 2020 JOHN ESPANGNE & OTHERS V ISHMAEL WORE

1. The GCLAC erred in its ruling to merge High Court Case 47 of 2020 and 5 of 2020 as they have no jurisdictional power. The GCLAC erred in that:
   1. The High Court have struck out the appeal and refer John Espagne to the GCLAC to hear him GCLAC on June 10^th 2021 ordered Mr. John Espagne to stand alone as a Third Party be refused and further orders that he if he wishes to be a party he must brought his case through proper channels. This ruling was never appealed by John Espagne and his purported tribe.
   2. That all decisions initiated starting from the Chiefs up to the High Court Appeal. John Espagne was never a party. He came as a separate a party when he appealed the GCLAC in HCC 47 OF 2020. He was never a party. He was struck off and refused by the HC and GCLAC respectively and no longer has any case GCLAC 7 OF 2019 he is barred from taking part. He has never a party in this cases.
   100. High Court 47 of 2020 does not belong to the Appellant Siriako Usa and his tribe. This case cannot be merged. High Court Case 47 of 2020 and HCC 5 of 2020 are separate case cannot be joined together. They are separate persons and have separate interests. John Espagne Case has been struck off and no longer exist. He is not even a party to this cease.
   4. High Court Case 5 of 2020 ruling was never challenged by the Respondent and still stands. It is a separate case that was never challenged by the Respondent. GCLAC cannot take and non-existing party and joined it with HCC 5 of 2020 furthermore the GCLAC has no jurisdiction.

(a) The GCLAC has been missed by the Appellant submission to regard HCC 47 OF 2020 and HCC 5 of 2020 as a same case. It is not. As follows:

• (a) John Espagne is not a party to this proceeding
• (b) He has never been a party to this case.
• (c) His appealed was refused by the High Court in 47 of 2020
• (d) His appeal is not the same as the case.
• (e) Ruling in HCC striking out 47 of 2020 by HCC is totally not the same in HCC 5 of 2020.

(b) In the ruling of October 13^th 2021 by his Lordship Faukona in HCC 47 of 2020 order 3 states that. ‘That orders 2 and 6 do not extend to Land Appeal Case No. 5 2020’ as such the GCLAC court does not have the jurisdiction to merge both cases

The manner in which the appeal was filed and pleading made as shown above were confusion due to repetitions and multiple sub-paragraphs. I will deal with what I understand the appeal points are. First the appellant alleged that Guadalcanal Customary Land Appeal Court (GCLAC) erred in its ruling by merging High Court Cases 5 of 2020 and High Court Cases 47 of 2020.

Appellant submit that the GCLAC erred as it has no jurisdictional power to merge HC Case 47 of 2020 and High Court Cases 5 of 2020. Appellant submit the GCLAC have no jurisdictional powers to merge the High Court Cases since the cases are inside the jurisdiction of the High Court and not the within the jurisdiction Guadalcanal Customary Land Appeal Court.

It is not clear if case number 5 and case number 47 of 2020 referred by the appellant are High Court files or GCLAC Files. If they are High Court cases then the GCLAC has no jurisdiction to merge the files. But I presumed what happened was that High Court cases No. 5 of 2020 and case No. 47 of 2020 are two appeals from the GCLAC to the High Court and what the High Court did was quashed both appeals and returned the two appeals to re-heard by the GCLAC. In this respect it is the appeals in HC No. 5 and HC No.47 of 2020 which were referred back by the High Court to the GCLAC. In fact it was the appeals in both cases that were referred by the High Court to the GCLAC for rehearing, not High Court case No. 5 of and High Court case No.47 of 2020. In that respect since the appeals were before the GCLAC, the GCLAC has the jurisdiction and discretion to merge the two appeals. It is therefore incorrect for the appellant to say that GCLAC had merged High Court cases No 5 and case No.47 of 2020. That is a misconception hence the appeal ground must be dismissed.

With regard to the order for the GCLAC to rehear the case within 4 months but GCLAC did not hear the appeals within 4 months. I do not considered the failure is breach of the law. That order was an order relating to an administrative issue not a legal issue. The failure therefore is not fatal. Hearing of cases especially in the CLAC and the Local Court depends very much on funds to conduct the hearings. The CLAC had explained the reasons why they are unable to conduct the hearing in time. I consider the reasons is genuine. In view of this the ground is dismissed.

I also noted that the High Court did not order the respondent to file his appeal within 4 months. Such an order would be contrary to section 256(3) of the Lands and Title Act (LTA) as the time limit to file an appeal is 3 months. The High Court however, did not make such an order. In fact the High Court only order GCLAC to rehear the original appeals grounds made against the decision of Guadalcanal Local Court (GLC). In the circumstances section 256(3) of the LTA donot apply and hence there was not breached by the respondent. The appellant’s submission in that regard is with out merit and the ground must be dismissed.

With regard to the ground of bringing in new witnesses, that is a matter within the jurisdiction and discretion of the GCLAC. The CLAC can allow new evidence to be given in certain circumstances such as the unavailability of the witness or the evidence when the matter was originally dealt with by the Local Court. That is a question of fact which was considered by the GCLAC and the GCLAC has made it decision on the facts and evidence in support of the application to call new evidence. As such this court cannot interfere with the GCLAC finding of fact so that ground of appeal must also be dismissed.

With regard to the issue relating to HC CC 47 of 2020 while Mr. Espange is not a party to case No. 5 of 2020, what I have stated earlier on is relevant to this point of appeal. It is not CC No. 5 and CC No. 47 of 2020 that were before the GCLAC. What is before the GCLAC are the appeals in CC No. 5 and CC No.47 of 2020 that were referred by the High Court back to the GCLAC for rehearing? In this case, if the issues in both appeals were the same or are over the same land in dispute as in the case, the GCLAC has a jurisdiction and discretion to consolidate the appeals. If Mr Espange’s appeal has been dismissed but returned to GCLAC for rehearing before the GCLAC, the appeal is still alive before the GCLAC so GCLAC has jurisdiction to consolidate his appeal with the other appeal because both appeals are in relation to the same issues and over the same disputed land.

After considering the grounds of appeal and the submission of the parties I consider the appeal grounds are misconceived. I dismissed the appeal in its entirety with cost against the appellant to be taxed if not agreed.

Orders.

1. Appeal is dismissed in it entirety
2. Cost against the appellant to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge