Kere v Lamupio [2024] SBHC 68; HCSI-CC 666 of 2020 (20 June 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kere v Lamupio
Citation:
Date of decision:	20 June 2024
Parties:	Wendy Kere, Boddily Kere, Florence Rove And Ian Zupiti Talasasa v Leonard Gaili Lamupio, Poloso Lamupio, Danken Lamupio And Kevin Lamupio, Kitchner Collinson And Alex Atani Mamoe, Community Access Urban Services Enhancement Project. (Cause)
Date of hearing:	30 May 2024
Court file number(s):	666 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The case is referred to the Local Court to determine whether the land described as Varese is within and part of the claimants’ land. If it is not then the Local Court is to indicate the boundaries of Varese. 2. The parties bear their own costs in relation to this application.
Representation:	Mr N Laurere for the Claimants Mr L Puhimana for the First Defendants Mr S Weago for the Second Defendants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Constitution S 77 (1), Land and Titles Act S 254 (1), S 256, Local Courts Act S 12, 13 and 14
Cases cited:	Veno v Jino [2006] SBCA 22,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 666 of 2020

BETWEEN

WENDY KERE, BODDILY KERE, FLORENCE ROVE and IAN ZUPITI TALASASA [Representing Primary
Tribal land owner of Left Hand Kazukuru land]
Claimants

AND:

LEONARD GAILI LAMUPIO, POLOSO LAMUPIO, DANKEN LAMUPIO and KEVIN LAMUPIO
First Defendant

AND:

KITCHNER COLLINSON and ALEX ATANI
MAMOE
Second Defendant

AND:

COMMUNITY ACCESS URBAN SERVICES ENHANCEMENT PROJECT. (CAUSE)
Third Defendant

Date of Hearing: 30 May 2024
Date of Decision: 20 June 2024

Counsel
Mr N Laurere for the Claimants
Mr L Puhimana for the First Defendants
Mr S Weago for the Second Defendants

RULING

1. The claimants allege they are of the owners of Patanekele and Kolonoki lands within left hand Kazukuru customary land. They say that the defendants have trespassed on those lands. They say the defendants have felled trees and milled them from those parcels of land.
2. The first defendants deny that they have trespassed on Patanekele and Kolonoki. They plead that the trees were felled were from within their own land named Varese.
3. The third defendants are the operator of a mill. They say they were contracted by the first defendants to carry out the milling operation, and have no interest in the lands, and no intention to trespass.
4. The claimants say that the third defendants has financed the milling operation. The third defendant denies that and says that it has only provided labour and logistics for the construction of the market at Munda and associated facilities.
5. The claim in trespass was to proceed to trial on 8 March 2024. The trial was vacated and the court has been asked to determine whether there should first be a referral to the courts of custom. Counsel have filed submissions whether this Court has jurisdiction to proceed to trial, or whether I should refer the matter to the courts of custom.
6. The first and second defendants, both submit that the Court should not hear the trial but should make an order referred the matter to the courts of custom. The claimants oppose such a course.
7. A central issue will be the whether the logs were felled and milled in land owned by the first defendant, which they call Varese or as the claimants allege they were felled and processed in land owned by the claimants. Although section 77(1) of the Solomon Islands Constitution provides that the High Court has unlimited original jurisdiction to hear and determine any civil proceeding, the court must also consider section 254(1) of the Land and Titles Act. Section 254 provides:
   • “254.- (1) A local court shall, subject to the provisions of this section, sections 12, 13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than –
   • (a) any such matter or proceedings for the determination of which some other provision is expressly made by this Act; and
   • (b) any matter or proceeding involving a determination whether any land is or is not customary land.
   • (2) A local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act.
   • (3) The decision of a local court given in exercise of its jurisdiction under this section shall be final and conclusive, and shall not be questioned in any proceedings whatsoever save an appeal under section 256.
   • (4) The provisions of this section shall have effect notwithstanding anything contained in any other law, other than sections 12, 13 and 14 of the Local Courts Act, or in any warrant establishing any local court.”
8. The Court of Appeal in Veno v Jino [2006] SBCA 22 said:
   • “It is clear that customary land disputes do not fall within the jurisdiction of the High Court to determine, except to the limited extent to which an appeal on a pure question of law or concerning procedural requirements lies to the High Court from the decisions of a CLAC (under s 256 of the Land Titles Act). Nevertheless, in certain circumstances, the High Court has jurisdiction in connection with the determination of customary land disputes, where it is necessary or desirable for it to act in its general jurisdiction to ensure the integrity of the statutory processes, for example, whether the local court is acting outside its statutory charter. It is unnecessary for present purposes to describe the extent of this jurisdiction.”
9. The Claimants say that customary land matters have been dealt with in a way that binds the first defendants. I am not concerned with the findings in relation to the Left hand Kazukuru customary land. I am concerned with the whether the logs were felled within Varese or within Patanekele and Kolonoki. I need to be satisfied that they have been felled and milled in land owned by the claimants. While there have been cases to determine ownership of land in the vicinity, I would need assistance from the courts of custom to determine where Varese is and whether it is the same as Patanekele and Kolonoki. If it is not the same then I would need to know the boundaries of Varese.
10. An issue then is whether what the first defendants call Varese is within the claimants’ customary land or the defendants’ customary land, irrespective of the name it is given. That decision cannot be made in this court.
11. In spite of the persuasive submissions made by Mr Laurere I cannot to know whether the decision in civil case 1 of 1970 is binding on the first defendant given the denial by Mr Puhimana.
12. Accordingly, this matter is referred to the Local Court to determine the ownership and location of the area described by the first defendants as Varese and where that is in relation to land that is owned by the claimants. The interests of the claimants can by adequately protected by an order for costs if the Local Court agrees with the submissions of the claimants.

Orders

1. The case is referred to the Local Court to determine whether the land described as Varese is within and part of the claimants’ land. If it is not then the Local Court is to indicate the boundaries of Varese.
2. The parties bear their own costs in relation to this application.

By the Court
Hon. Justice Howard Lawry
Puisne Judge