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Maesi v Naonigai Resources Development [2019] SBCA 21; SICOA-CAC 45 of 2017 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The appeal arises from a decision of the High Court when it considered an application to strike out a claim on the basis that it was frivolous or vexatious. The substantive claim was for trespass and damages and permanent injunctive relief against the same.
2. Two applications were listed and agreed to be heard together, the application for strike out and an application to determine preliminary points of law.
3. In the event the trial judge found it unnecessary to determine the preliminary points of law by virtue of his decision on strike out. That, in the context of his decision on strike out, is logical. If his decision on strike out is upheld, there is no need for the preliminary questions of law to be examined and determined. If his decision to strike out is overturned, that position may be different.
4. The appeal, therefore, concerns the decision to strike out the claim, which decision itself is based on a finding by the trial judge that Victor Maesi the claimant in the High Court, presently the appellant, comes to court with no material with which he can demonstrate ownership of the land the subject of the trespass. The land on which the trespass is said to have taken place is customary land and the appellant was faced with showing how, in custom, he is, or represents, the customary owners of the land.
5. The submitted basis for the appellant’s claim in the court below is a decision of a House of Chiefs. Customary land ownership is not determined by decisions of the High Court but elsewhere through a process prescribed within the Land and Titles Act [Cap 133]. That process begins with a hearing before a House of Chiefs and, where necessary before a Local Court before ending in a Customary Land Appeal Court for the province in which the land is found.
6. Thus in 2007 the Arosi II House of Chiefs made a decision which went in favour of the appellant. That decision was not challenged by the unsuccessful party to the hearing and so remains as it was when it was made. It is perhaps worth noting here that a party who is successful in a hearing before a House of Chiefs has no right to take that decision further to the Local Court. Only a party aggrieved by such a decision can refer the matter on to the Local Court.
7. Then, in 2009, a different House of Chiefs considered again the same land but a different dispute between the appellant and another group. The other party in that dispute is not a party to these proceedings. In the event the decision of the 2^nd House of Chiefs went against the appellant as between him and the other group. That decision has not been taken any further in the sense that the appellant has not referred the decision, taken by the Marogu House of Chiefs, to the Local Court.
8. There is another decision to be considered which is a decision of the High Court in 2012 (Civil case 319 of 2012)^[1] which is said to confirm the binding nature of the Arosi II House of Chiefs. In that decision, wherein this appellant was a claimant, as between him and one David Wakasi it was said that the decision of the Arosi II House of Chiefs was binding.
9. In submissions for the respondent it is said that the later decision of the House of Chiefs, going as it did against the appellant, effectively strips him of any right to seek redress for trespass as a customary landowner. There is no suggestion that the second House of Chiefs has any power or authority above that of the 1^st House of Chiefs only that the second decision came later in time and went against the appellant as opposed to being in his favour.
10. Thus, on this appeal, there is no attempt to define a hierarchy as between the many and various Houses of Chiefs. Nor, in our view, should there be. No one House of Chiefs has, in law, more authority that any other. There is no hierarchy in law, although we respect the notion that, in custom and for various reasons including the actual composition of the House of Chiefs, one panel may command more respect in custom than another. That notion, though, is not a matter of law.
11. It is matters of law which matter in the consideration of an application to strike out a claim in the High Court. Then it is only in a clear case that the power to bring a claim to an early end should be exercised, but that principle is not questioned in this appeal.
12. As a matter of law, as opposed to a finding on the particular facts of each decision of the two Houses of Chiefs, the High Court has determined that a later decision of a House of Chiefs has the effect of displacing an earlier decision. It is this principle which is sought to be challenged on this appeal. It appears to us that this must have been a finding as a matter of law because, on strike out, the material facts have not been explored following the proper reception of evidence on the claim.
13. It may well be, following a trial, that one decision of a House of Chief may be preferred over another. The reasons for that will be many and various, but without further investigation of the nature and effect of the conflicting decisions it is not possible to say. In short, it is unlikely to be the case that such a decision can be arrived at simply by reading the written minute of the decision of each House.
14. In submissions for the respondent a submission is made to the effect that a House of Chiefs decision is binding only on the parties. We do not disagree with that submission but note that it may well be necessary to refer to such a decision to establish ownership as against a trespasser because it might be the only decision on ownership that has been made. We do not accept the submission that reliance on the first decision is misplaced solely because, as between other parties, a second decision finds against the appellant.
15. Faced with two different decisions on the same land, this appellant may have chosen to take the later decision to the Local Court, given that it was a decision against him. That step, we are told, has not yet been taken. It may not now be possible for him to take that step, we do not know. The High Court does not know either. If he cannot now take that step, perhaps through time limits, perhaps the High Court has the power to refer the matter to the Local Court. No investigation of that possibility has yet been undertaken, as we understand matters.
16. Given its nature, customary land ownership is not displayed in a legal document evidencing title. Because of that, ownership or entitlement to claim on behalf of a group or tribe is made in many ways. It will not always be possible to produce a decision in one’s favour. Where there has not previously been any challenge to ownership by a tribe, there will not have been any decision. This position was discussed by this Court in SMM Solomon Ltd v Axiom KB Ltd [2016] SBCA 1; Civil Appeal 34.2014 (21 March 2016) at para 100-101.where it was said:-
    • “100. The Commissioner did note that there exists the notion that to come before the High Court for injunctive relief whilst pursuing claims elsewhere in forestry or customary ownership matters requires something more than a mere assertion of ownership. Often in practice this will be a decision of a body of chiefs in favour of the claimant or a decision of the Provincial Executive or other like body. In this instance, where the land is said to have become Registered Land as opposed to customary land, none of those could make or give any decisions about the land since Registration, and so the general rule is likely to be displaced, given that it is a rule of practice and not of law. We do not accept that there exists any rule of law which provides that ownership must be evidenced by a decision as suggested in the Reasons for Judgment.
    • 101. Such a decision is by far the simplest way to provide a court with evidence of entitlement. In many instances it may be the only way. Yet it cannot be elevated from a rule of practice to a rule of law – no decision, no standing. There will always be that case where there has never been such a decision yet.”
17. In determining to strike out, the High Court has brought this claim to an end without consideration of the real issues. It has, in effect, introduce a novel principle of law. That principle of law is that a decision of a House of Chief which comes later in time that an earlier decision on the same land which goes against a person previously successful will displace, as a matter of law, the earlier decision. That, in our view, cannot be correct.
18. For the reasons given we allow the appeal against the decision to strike out. We envisage the difficulties faced by the High Court in the continuing trial of this claim, faced as it will be with resolution of competing decisions. Yet it must seek a resolution of those two, competing, decisions when or after receiving evidence on the claim. There is the option to seek assistance elsewhere if that cannot be done in the High Court. That might be in the form of a referral to the Local Court to assist with a resolution. It may be something else, that is a matter for the High Court.
19. In the event the appeal is allowed and the claim restored and referred to the High Court to continue. Appellants’ costs of and incidental to the appeal to be paid by the 1^st and 2^nd respondent to the appellant such costs to be agreed or assessed.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member

^[1] Maesi v Wakasi [2013] SBHC 145