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Tanopiru v Bako [2014] SBCA 15; SICOA-CAC 22 of 2013 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

This is an appeal against an Order made on 19th August 2013 dismissing an application to strike out the claim on the grounds -

1. that the Claimant (the 1st Respondent to the Appeal) lacks locus standi;
2. that the Claimant has no cause of action;
3. that the claim is vexatious and unreasonable;
4. that the claim is an abuse of process.
   

The claim concerns customary lands in the Isabel Province. The Kombakana customary land is part of the Bagaho customary land. The Claimant seeks a declaration that the registration of 1,049 hectares of Kombakana land described as parcel number 106-003-1 in the name of the Commissioner of Lands on 14th March 2012 was void ab initio as it was effected fraudulently or by mistake, a declaration that the transfer of the said land by the Commissioner of Lands to the 3rd Defendants (who are the 1st Appellants) on 23 March 2012 was void ab initio, and a declaration that the grant of profits in the land by the 3rd Defendants to the 4th Defendants (that is, the 2nd Appellants) was void ab initio, as well as consequential orders.

The primary Judge found that the dealings in the land between 1919 and March 2012 were quite confused. There were serious issues which ought to go to trial. The claim was not an abuse of process. His Lordship rejected a submission that the Claimant had been shown to lack locus standi. He refused to find a lack of standing on the basis that the Claimant was not a legitimate descendant of Walter Notere who was a member of the tribe, which owns the land.

The appeal relates to how the Judge dealt with the issue of locus standi. Essentially two areas of error were relied upon. The first was his Lordship's failure to deal with a customary transaction in about 1921 by which Walter Notere allegedly transferred the land to H Vikasi. That customary transfer is denied by the Respondents to the appeal. The second was that the Claimant lacked locus standi because the land courts had not yet determined customary ownership.

As to the first, as the customary transaction is in dispute, the primary Judge was not in a position to resolve the issue. As to the second, the disputed ownership of the customary land is determined in the land courts and ultimately the High Court. The proceeding would be commenced before the Chiefs, from whom there would be an appeal to the Local Court, from there to the Customary Land Appeal Court, and ultimately to the High Court.

The land in dispute is presently registered land. Land courts do not have jurisdiction over registered land. If, as a result of this proceeding, the title were cancelled, then the question of ownership would be able to go before the land courts. Realistically a final determination could take some years.

The Appellants submitted in effect that the Claimant lacked standing because he failed to show that he and those he represents were customary owners of the land in question.

However, he could not do so at this stage because the issue of customary ownership is for the land courts to determine and they could not embark upon such determination unless the registration were cancelled.

The jurisdiction of the High Court may be invoked for subsisting legal rights and future legal rights. In Simbe (Solomon Islands Court of Appeal, 9 February 1999) the Court of Appeal held that the High Court has jurisdiction to grant an injunction aiding a Local or Customary Land Appeal Court's exercise of its jurisdiction to decide questions of disputed ownership of customary land.

A fortiori, when land courts cannot proceed to determine customary ownership because the land is registered land and that registration is sought to be impugned in the High Court, the High Court has jurisdiction to grant declaratory relief and make consequential orders in relation to the validity of the registration.

In these circumstances, it cannot be said that the Claimant lacked standing because he failed to establish customary ownership of the land. In our view, the grounds of appeal have not been made out. Accordingly, we would dismiss the appeal.

The 1st Respondent to the Appeal has asked this Court to hear and determine an application for an interlocutory injunction filed on 31 May 2013. That application is returnable before the High Court and in our view should be heard in the High Court. However, we consider that it warrants speedy listing and speedy determination.

We wish to place on record our gratitude to Mr Hou for his thorough and helpful submissions on the appeal. We note that he has provided his submissions with respect to the injunction; that should facilitate its early listing.

The Orders of the Court will be as follows;

1. Appeal dismissed with costs to be assessed.
2. Liberty to apply to a single Judge of the Court of Appeal with respect to the disposition of the monies paid by way of security for costs.
   

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Williams JA
Member of the Court of Appeal

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Hansen JA
Member of the Court of Appeal

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Wilson JA
Member of the Court of Appeal