Rongotaloa Tribe v Kafokuru Tribe [2021] SBLC 7; Land Case 21 of 2020 (25 March 2021)

IN THE MALAITA DISTRICT LOCAL COURT
(SOLOMON ISLANDS)
Civil jurisdiction (customary land)
Land Case No. 21 of 2020

BETWEEN: RONGOTALOA TRIBE
plaintiff

AND: KAFOKURU TRIBE
1^st defendant

AND: AFOA-TAKINIANO TRIBE
2^nd defendant

AND: TOBAITA COUNCIL OF CHIEFS
3^rd defendant

Date of hearing: 24^th -25^th March 2021.
Date of ruling: 25^th March, 2021.

Patrick Soeasi in person and others for the plaintiff.
Jesneth Maela in person for 1^st defendant.
No appearance or representative for the 2^nd defendant.
Timothy Talui as secretary appearing for the 3^rd defendant.

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RULING

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The Court: Aggrieved with a determination of the 2^nd defendant dated 28 August 2020 (the “determination”), representative of the plaintiff brought their grievances to this court via this case for redress under the procedure in section 12 of the Local Court Act^[1] (the “Act”).^[2]

2. Through preliminary hearing this court unanimously decided to dismiss the matter.
   
3. The basis for the ruling of this court is the orders of the Malaita Customary Land Appeal Court (the “MCLAC”) issued on 29 October 2018 in appeal case CLAC. 06 of 2017. For purpose of clarity, we quote in particular order no. 3 of that judgement ( the “order”) as read:
   

[3] Remit this matter before a differently constituted panel of chiefs within the locality of the disputed area to hear the matter afresh;^[3]

4. The matter referred to in the case CLAC.06 of 2017 order quoted above is an appeal to the MCLAC from a ruling of a previous Malaita Local Court (“MLC”) tribunal in case MLC 06 of 1997 given on 29 October 2018.
   
5. The parties to that initial MLC proceeding and appeal to MCLAC were Chris Dala and Simon Kofela (plaintiff/appellant) and Pio Akwasilobo (and Patric Taloboe being deceased) and George Ashley Kaluae (defendant/respondent).
   
6. The order explicitly refers to the matter or proceedings and those two parties in case MLC 06 of 1997 and appeal case CLAC.06 of 2017 alluded to above. It does not refer to any other party or any joinder party or for a public hearing open to any other party to make claim to the land, the subject matter in dispute.
   
7. Surprisingly, the 3^rd defendant opted to divert from the order of the MCLAC and held what transpired to be, as described by the parties, an “open forum” involving claims of another eight tribes. This is evident from the 3^rd defendant’s determination and further confirmed on preliminary inquiry by the plaintiff and representative of the 3^rd defendant.
   
8. For avoidance of any doubt, we quote the determination of the 3^rd respondent as read:
   

The Tobaita Council of Chiefs land settlement panel do hereby ruled that as of today the 1^st of September 2020, Afoa Takiniano tribe and Kafokuru tribe both ... have the sole right of ownership over Basakana Island while Bitaama tribe, Talofunu tribe, Bulioro tribe (Fungana), Alokwae tribe have right through female descent. The Rongotaloa tribe and Abuoli tribe have rights to Bita’ama but not Basakana land.^[4]

9. Though admitting the public hearing, representative (secretary) of the 3^rd defendant seems to deny the 3^rd defendant making any decision over the subject matter. His denial however, is at odds with the decision as quoted above which unfortunately, the plaintiff regarded as a valid decision.
   
10. So the question is not so much about whether the plaintiff has a genuine claim to the land the subject matter in dispute or whether that he had made a proper referral to the local court under section 12 of the Act.
    
11. Rather, the question is whether the plaintiff can rely on the 3^rd defendant’s decision as legal basis for filing this referral case with local court. Stated the other way round, does the 3^rd defendant have legal basis to hold a public hearing open to other parties outside of the order of the MCLAC.
    
12. It must be noted that the Malaita Customary Land Court is a higher court with higher jurisdiction and powers binding on this court and the chiefs. As such, this court and chiefs must follow its orders as an obligation or mandatory requirement of law.
    
13. Furthermore, there is no specific statutory provision or law yet in force in Solomon Islands for chiefs to hold “public hearings” such as an Acquisition Officer have in acquisition hearings over customary land^[5] other than the reference to chiefs in section 12 of the Act.
    
14. The determination of the 3^rd defendant therefore, lacks legal standing and must be set aside if not for a strike out order on the basis of the order of the MCLAC. It follows therefore that this referral case filed with the court by the plaintiff must also be dismissed for it cannot hang on to a determination which should properly be struck out for misleading the eight tribes.
    
15. An order was also issued for AFOA to be regarded as a separate tribe and/or land from TAKINIANO as purported in the 3^rd defendant’s determination for reason that the validity of the 3^rd defendant’s determination is in question, and based on previous court record.
    
16. Premised on the findings of this court on preliminary hearing as set out above, the orders of the court as pronounced orally in open court are in the following terms:
    

ORDERS

1. Set aside the Tobaita Council of Chiefs determination of 28 August 2020 (issued on 1^st September 2020).
   
2. Dismiss the referral case.
   
3. Uphold the Malaita Customary Land Appeal Court orders of 29 October, 2018 in case CLAC. 06 of 2017.
   
4. Parties to bear own costs.
   

Right of Appeal Explained

Any party aggrieved by the ruling of this court may appeal to the court of relevant jurisdiction within the relevant time as permitted by law.

THE COURT

Justice Nelson Nee (Acting Vice President)
Justice Philip Waletobata (Member)
Justice Atarly Ramo (Member)
Officer Hillary D. Fioru (Clerk)

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^[1] Cap 19
^[2] See plaintiff’s referral statement/submission filed 23 October 2020
^[3] see copy of the MCLAC decision in file
^[4] See copy of the Tobaita Council of Chiefs report dated 28 August 2020 filed by the plaintiff 23^rd October 2020.
^[5] see Part V, section 64 of the Land and Titles Act, Cap 133.