Qame v Tsodo [2024] SBHC 97; HCSI-CC 357 of 2023 (9 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Qame v Tsodo
Citation:
Date of decision:	9 September 2024
Parties:	Philip Qame, Sipiano Molu and Arisen Hati v Selestino Tsodo, Anthony Tebolo, Mario Chago, and Andrew Tura, Melchior Vevera, Komorindi Limited, Gallego Resources Limited
Date of hearing:	15 August 2024
Court file number(s):	357 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1. That only chiefs and traditional leaders residing within the locality of the land can hear the land disputes. 2. That any joint chiefs’ panel for a locality is without legal basis an in breach of section 11 and 12 of the Act. 3. That the chiefs to whom the parties refer their land dispute need to consult the parties before hearing the dispute. Cost for the Defendants / Applicant to be taxed if not agreed.
Representation:	G Suri for the Claimant S Lepe for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act 9 [cap 19] S 11, S 12, S 13, S 14 Solomon Islands Courts(Civil Procedure) Rule 2007, r 12.11, 15.3, 12.12
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 357 of 2023

BETWEEN:

PHILIP QAME, SIPRIANO MOLU & ARESENI HATI
(Members & Representations of Lakuili Tribe)
Claimant

AND:

SELETINO TSODO, ANTHONY TEBOLO, MARIO CHAGO & ANDREW TURA
First Defendant

AND:
MELCHIOR VEVERA
Second Defendant

AND:

KOMARIDI RESOURCES LIMITED
Third Defendant

AND:

GALLEGO RESOURCES LIMITED
Fourth Defendant

Date of Hearing: 15 August 2024
Date of Ruling: 9 September 2024

Mr G Suri for the Claimant
Mr S Lepe for the Defendants

RULING ON APPLICATION TO DETERMINE A PRELIMINARY ISSUE OF LAW

KOUHOTA PJ

This is an application to determine a preliminary of law made pursuant to rule 12, 11 of the CPR 2007. The Defendants filled the application on 30/11/2023. The preliminary issue of law raised in this application is;

Whether upon the proper construction of section 11 of the Local Court Act 9 (Cap 19) it establishes;

1. That only Chiefs and traditional leaders residing within the locality of the land can hear land disputes: or
2. That there can be a joint Chiefs hearing for a locality; or
3. That parties do not need to be consulted on the panel of Chiefs a panel can hear a case.

In this written response objecting the application, counsel Suri for the Claimant says the following;

1. That the application is an abuse of process on the following grounds;
   • (a) The effect of the application is to circumvent the Judicial Review process prescribe under chapter 15.3 of the Civil Procedure Rules.
   • (b) The effect of the application is to circumvent the Referral process to the Local Court prescribed under section 12 of the Local Court Act.
   • (c) Rule 12.11, CPR is not available because the facts in issue is a customary fact which the High Court has no jurisdiction to deal with. The application is therefore, an abuse of process. Facts in issue of Locality is in dispute and is a question of customary facts, which the High Court has no jurisdiction to deal with. The application is therefore, an abuse of process.
   • (d) Rule 12.12 CPR, is available only if parties have agreed on the facts. There is no agreement facts, hence, the application is an abuse of process. Facts in issue of Locality is in dispute and is a questions of customary facts, which the High Court has no jurisdiction to deal with.
2. The land in dispute is located within Tandai, and so the participation by the Tandai Chiefs is sufficient. The inclusion of Sahalu and Savulei Chiefs gives creditability and integrity to the process, and is appropriate in accordance with customary history and practices.

The Application in his submission says; The Local Court Act (Cap 190, section 11 is relevant to the application, He cited section 11 which states

“Chiefs means Chiefs or other traditional leaders residing within the locality of the Land in dispute and who are recognised as such by both parties to the dispute;
“Customary Land has the same meaning as that assigned to it under the Lands and Title Act”
“Customary land dispute means a dispute in connection with the ownership of or any interest in customary land or nature or extent of such ownership and “dispute means customary land dispute”.

3. 5.12 of the Act limits a local courts’ jurisdiction in customary land disputes by requiring a prior reference to and determination by Chiefs S.13 of the Act provides for local Court to hear and determine a dispute where the Chief’s decision is not accepted by all parties ( an unaccepted settlement, effectively and appeal). S.14 provides for accepted decisions of the Chiefs to be recorded as decisions of the Local Court.
4. On 8 and 9 April 2021, a joint sittings of House of Chiefs of Tandai and the House of Chiefs of Sahalu (JHOC) was purportedly, held at Kokona Village. Sahalu Ward, to hear a dispute over Vatuvahea Land and purportedly determined the dispute in favour of the Claimants in the absence of the First Defendants and despite their objection. The pleading raise an issue as to the jurisdiction of the JHOC, which has led to the present application.
5. By S.11 of the Act, “Chiefs” means “Chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute”.
6. Properly construed S.11 contemplates-
   1. A single house of Chiefs or committee of Chiefs or traditional leaders drawn from the locality of the land in dispute and not drawn from two localities (the reason should be obvious- the Act contemplates chiefs with knowledge of the customary law of the particular locality);
   2. Those Chiefs or leaders must be accepted by both parties to the dispute;
   100. And
   4. Absent, that connection with the locality and/or acceptance by all parties, the body purporting to determine the dispute has no jurisdiction.
7. This case is on all fours with Vaekesa’s case, where Chiefs from outside the locality and despite objection from one party proceeded to determine the dispute. It was held that the provision of S.11 are mandatory and strict compliance was necessary with both parties consenting to the composition of the Chiefs hearing the dispute.
8. A determination by a body of Chiefs from outside the relevant locality is without jurisdiction and a nullity.
9. It follows that the questions for determination be answered-
   1. Yes
   2. No;
   100. No (i.e. the parties must be consulted and consent)

Counsel Suri for the Respondents in this submission makes a wide interpretation of the provisions referred to above and submit that the land is located within Tandai ward. And so the participation by the Chiefs is sufficient for purposes of section 11 and 12 of the Local Court Act and the inclusion of Sahalu and Savulei Chiefs gives creditability to the process, and is appropriate in accordance with customary history and practices.

Counsel also submit that the effect of the application by the Defendants is to circumvent the Judicial Review process. He submit that when a party seeks to nullify or quash a decision of a tribunal, the proper procedure is for a party to lodge a Judicial Review. He submit that the ultimate purpose of the application is for the Court to nullify the findings made by the Chief of Tandai, Sahalu and Savulei.

I will deal first with the latter part of Mr Suri’s submission. Mr Suri’s submission on the issue of Judicial Review is appreciated but rule 12.11, makes provision for the Court to hear legal argument on preliminary issue of law or fact between the parties, if it appears likely that, if the issues are resolve, the proceeding on part of the proceeding will be resolve without a trial, or the cost the proceeding or the issues in dispute are likely to be substantially reduced.

Rule 12.11 therefore clearly states the reasons for the rule, that is to resolve issues of law without a trial and reduced the cost of the proceedings. The question of law raised in the application while it may ultimately lead to a nullification of the decision of the Chief is not about the decision of the Chiefs but the legally of the composition of the Chiefs to hear the land dispute. In the respect I consider this application is properly brought under rule 12.11, because while it is an issue can be brought by judicial review, I do not think there is any restriction on the dealing with any issue of law on facts under the rule 12.11, whenever and wherever the issue arises. Even if an issue of law or fact is raised in a judicial review claim, it can also be considered under rule 12.11 of the CPR 2007. Thus in my view, the application does not circumvent the Judicial Review proceeding.

With regards to the provision of the local Court Act. I think section 11 is clear. There are three requirement the Chiefs must meet before they have jurisdiction to hear a land dispute. (i) They must be chiefs (ii) they must reside within the locality of the land in dispute and (iii) they must be recognised as chiefs by both parties to the dispute. If the chief did meet these three requirement, they have no jurisdiction to hear the land dispute. Thus is the present case, the disputed land is within Tandai chief jurisdiction. It is not within Sahalu and Savulei chief’s jurisdictions, so under section 11 of the Local Court Act the chief of Sahalu and Savulei have not jurisdiction to deal with this land dispute. Customary ties or historical or customary connections are not issues considered in section 11 of the Act. The meaning word locality as defined in the dictionary refer to by Counsel Suri is correct thus living within the locality in the ordinary sense of the phrase, it means living in the area, in the neighbourhood, or close surrounding or vicinity of the land in dispute.

The Sahalu and Savulei area are not within Tandai area so the inclusion of the chiefs of Sahalu and Savule chiefs to hear the dispute, therefore do not add credibility to the process but is contrary to section 11 of the Local Court Act and makes the proceeding a nullity.

With regard to the third issue raised in the application, section 12 of the Act, by implication says that the chief can only jurisdiction to hear a dispute. If the parties refer the dispute to the chiefs. If the parties did not refer the dispute to the chiefs, the chiefs would have no jurisdiction to deal with the dispute more over the chiefs to whom a land dispute has been referred have no power to invite a chiefs not residing within the land in dispute to join them to hear the dispute.

For the reasons stated above the Court find that the Joint Panel of chiefs hearing the land disputed is a breach of section 11 of the Local Court Act thus all the preliminary issues of law raised must answered as follows;

1. That only chiefs and traditional leaders residing within the locality of the land can hear the land disputes.
2. That any joint chiefs’ panel for a locality is without legal basis an in breach of section 11 and 12 of the Act.
3. That the chiefs to whom the parties refer their land dispute need to consult the parties before hearing the dispute.

Cost for the Defendants / Applicant to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge