Gasimata v Attorney General [2024] SBHC 96; HCSI-CC 487 of 2019 (16 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gasimata v Attorney General
Citation:
Date of decision:	16 August 2024
Parties:	Derick Gasimata and Donald Maepio Bisili v Attorney General, Heather Pana, Loti Pio Gasimata
Date of hearing:	1 August 2024
Court file number(s):	487 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. As the Claimants have not satisfied the requirements of rule 15.3.18 (d) the Claim is struck out. 2. The Claimants are to pay the costs of the First, Second and Third Defendants, if not agreed to be taxed.
Representation:
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r15.3.18, Local Court Act S 12 and 13, Land and Titles Act S 254, Subsection (3), S 256, S 255 (4)
Cases cited:	Bavare v Nerapa [2011] SBCA 22, Viti v Bobo [2002] SBCA 23,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 487 of2019

BETWEEN

DERRICK GASIMATA AND DONALD MAEPIO BISILI
Claimant

AND:

ATTORNEY GENERAL

First Defendant

AND:

HEATHER PANA
Second Defendant

AND:

LOTI PIO GASIMATA,
Third Defendant

Date of Hearing: 1 August 2024
Date of Decision: 16 August 2024

Mr C Fakarii for the Claimant
Mr B Pitry for the First Defendant
Mr G Suri for the Second Defendant
Mr N Sariki for the Third Defendant

Lawry; PJ

RULING

1. In 2012 the Solomon Islands Government made an arrangement to develop the runway at Munda Airport. That development required the use of gravel. A suitable source for that gravel was identified not far from the airport at ‘Mamamisi Hill.’
2. There was however a dispute over the ownership of Mamamisi Hill. That dispute was heard by the Roviana Chiefs. The decision of the Chiefs was challenged by an appeal to the New Georgia Local Court. There was an appeal from the Local Court’s decision to the Western Customary Land Appeal Court [‘WCLAC’].
3. The WCLAC determined that the referral to the Local Court had not compiled with section 12 of the Local Courts Act and accordingly set aside the judgment of the Local Court and ordered that the matter be sent back to be heard by the appropriate chiefs at a fresh inter partes hearing.
4. The Claimants filed a claim for judicial review of that decision. On 4 August 2021 the Claimants filed an amended claim for judicial review seeking an order that the decision of the WCLAC be quashed and that the judgment of the Local Court be affirmed. An alternative remedy sought is a declaration that the decision of the Roviana Chiefs remains valid until set aside by a Court of competent jurisdiction.
5. The application for judicial review has come before this Court in accordance with the rule 15.3.16 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [‘the Rules’]. The issue for this Court is whether the four requirements of rule 15.3.18 have been met. That rule provides:
   • “15.3.18 The court will not hear the claim unless it is satisfied that:
   • (a) the claimant has an arguable case; and
   • (b) the claimant is directly affected by the subject matter of the claim; and
   • (c) there has been no undue delay in making the claim; and
   • (d) there is no other remedy that resolves the matter fully and directly.
6. It is agreed that the Court must be satisfied of all four pre-conditions before hearing a claim for judicial review. In the present case there are two principal issues. The first is in relation to paragraph (d). Counsel for each of the Defendants has submitted that a claim of judicial review is not available because there was an alternative remedy, an appeal, that could have resolved the matter full and directly.
7. For the First Defendant, Mr Pitry submitted that the Roviana House of Chiefs had not addressed issues of ownership nor conducted site visits to allow the parties to identify traditional boundaries, taboo sites and places as well as genealogies. He submitted that such requirements are mandatory before a referral can be made to the Local Court. He submitted that it follows that the Claimants have not exhausted other avenues, making a claim for judicial review unavailable. He referred to the Court of Appeal decision of Bavare v Nerapa [2011] SBCA 22 which upheld a decision in this Court that had struck out an application for judicial review on the basis that the Claimant had an alternative remedy pursuant to section 12 and 13 of the Local Court Act.
8. The Court of Appeal referred to the right of appeal set out in section 254 of the Land and Titles Act. Subsection (3) of section 254 provides:
   • “(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.”
9. Section 256 of the Land and Titles Act provides:
   • “256.-(1) Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 254 or section 13(d) or (e) of the Local Courts Act may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.
   • (2) On any appeal to it under subsection (1) a customary land appeal court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just.
   • (3) Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.
   • (4) Any order or decision of the High Court, and, subject to subsection (3), of a customary land appeal court, in each case given in exercise of the jurisdiction conferred by this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever.”
10. At paragraph 12 in the amended claim, the Claimants plead that the Defendants erred in law and procedure and set out a series of errors they allege were made by the WCLAC. Those are all matters that could be dealt with on an appeal.
11. Mr Suri and Mr Sariki for the Second Defendant and Third Defendant respectively both submitted that the Claimants had chosen to not file an appeal pursuant to section 256 of the Land and Titles Act on a point of law or procedure. Mr Sariki relied on the Court of Appeal decision of Viti v Bobo [2002] SBCA 23 which confirmed the need to explore an appeal of one appeal was available. The Court said at paragraphs 24 and 25:
    • “24. The appellant (then claimant) has a right to appeal the decision of the Customary Land Appeal Court to the High Court on a point of law or procedure within 3 months under s. 256 of the Land and Titles Act [CAP. 133]. There was no appeal filed against the judgment of the CIRBCLAC of 30 August 2019 before the High Court. It is now out of time. The appellants cannot say that they chose not to appeal against the above judgment of the Customary Land Appeal Court. It is a statutory requirement that if the appellant is aggrieved by an order or decision of the Customary Land Appeal Court, he or she has to appeal it within 3 months. It is not a matter of the appellant’s choice not to appeal but to wait and, then, file a Judicial Review claim, instead.
    • 25. This constitutes a proper legal basis to dismiss this appeal there and then.”
12. Mr Suri correctly submitted that the WCLAC in considering the appeal was required to look at the material that was before the Local Court. He submitted that as the WCLAC has the power of the Local Court pursuant to section 255 (4) of the Land and Titles Act it had jurisdiction to make the orders it made sending the case back to the chiefs in the locality.
13. Mr Suri submitted that the Claimants had not exercised their right of appeal and were obliged to do so before filing a claim for judicial review. Mr Suri also submitted that the supervising role of the High Court in judicial review proceedings was to ensure that the WCLAC did not act outside its jurisdiction. The jurisdictional issues raised by the Claimant were not challenges to the jurisdiction of the WCLAC but rather whether there were jurisdictional issues in relation to the decisions of the Roviana Chiefs and the Local Court.
14. I am satisfied that there were avenues available to the Claimants following the decision of the WCLAC. The Claimants could have filed an appeal which would be heard on the merits that would resolve the matter fully and directly. The Claimants chose not to file such an appeal. In accordance with the clear directions from the Court of Appeal in Bavare v Nerapa and in Viti v Bobo I find that the Claimants have not satisfied the requirement of rule 15.3.18 (d) and as a result the Court must not hear the claim. Accordingly it is struck out.

Orders

1. As the Claimants have not satisfied the requirements of rule 15.3.18 (d) the Claim is struck out.
2. The Claimants are to pay the costs of the First, Second and Third Defendants, if not agreed to be taxed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge