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Viti v Bobo [2022] SBCA 23; SICOA-CAC 2 of 2022 (18 November 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal from the decision of Faukona DCJ dated 9^th December 2021 when he struck out and dismissed the appellant’s application for judicial review.

Background

2. The appellant, Patrick Viti, of New Vunuha Village, Big Gella, represents Kapika and Ehotaratara sub tribes of Lahi, Central Islands Province. The first respondent, William Bobo, represent Dili Vinahogo sub tribe of Lahi, Central Islands Province. The Second Respondent is the Central Islands & Rennell & Bellona Customary Land Appeal Court (‘CIRBCLAC’) dealing with appeals on customary land disputes in Central Islands Province.
3. The sub tribe represented by the appellant and the first respondent were in dispute over a portion of customary ownership of Hagela Customary Land. This portion of land is situated in the Western part of Big Gella, Longana District, and West Gella Region in Central Province. On 8 August 2017, the Gella Paramount Chief Chamber gave its judgment over that disputed portion of the said customary land in favour of the Dili Vinahogo sub clan of Lahi tribe represented the first respondent (William Bobo).
4. The appellant appealed the judgment of the Ngella Paramount Chief Chamber to the Ngella Local Court. The hearing was conducted from 22^nd to 23^rd May 2018. On 28^th June 2018, the Ngella Local Court rendered its decision confirming the judgment of the Ngella Paramount Chief Chamber of 8 August 2017 that the customary land ownership over the disputed Hagela land is awarded to Dili vinahogo sub tribe of Lahi tribe represented by the first respondent (William Bobo).
5. An appeal against the decision of the Ngella Local Court was made on 28^th June 2018 in the CIRBCLAC. The hearing was conducted on the 17^th June to the 21^st June 2019. The Customary Land Appeal Court announced its orders on the 21^st June 2019 dismissing all grounds of appeal and upholding the decision of the Local Court. The written reasons of its decision were provided to the parties on 30 August 2019 with the right to appeal within 3 months upon receipt of the full written ruling.
6. There was no notice of appeal filed against the judgment of the CIRBCLA C dated 30 August 2019 in the High Court. But instead, the Appellant filed a claim for Judicial review proceedings seeking the quashing of the orders of the second respondent, alleging the following, that: -
   • The Gella Paramount Chief Chamber does not have jurisdiction to listen to the disputed customary land matters throughout Gella Province as they are not sanctioned by the whole of entire Ngella House of Chiefs;
   • The objections raised by the appellant during the hearings at the Gella Paramount Chief Chamber and the Ngella Local Court that the matter be referred back to the Longana House of Chiefs which is within the locality was not considered and further that not any of the objections raised by the appellant and members of the appellant’s tribe during the hearing were mentioned;
   • There was no fair hearing conducted during the Local Court proceedings as the matter proceeded without the appellant being present in court; and
   • Further that the written judgment of the Local Court did not mention anything about the objections raised by the appellant during the hearing nor did it mention anything about the Court’s clerk behaviour towards the appellant;
   • Finally, the written judgment of the CIRBCLAC dated 30 August 2019 did not include the objections raised by the appellant and the members of the appellant’s tribes during the hearing of the matter.
7. The allegations to support these grounds are not fully set out in the Statement of Claim. We do not rehearse them as they are irrelevant in the context of this appeal.

The High Court Decision

8. Faukona DCJ convened a conference pursuant to High Court Rules 15.3.16. He pointed out that Section 256 (3) of the Land and Titles Act provides a right to the Appellant to appeal to the High court within 3 months on a point of law or procedure from a Local Court or Customary Land Appeal Court judgment. The appellant chooses not to appeal. Instead, he waited until the three (3) months period had elapsed before he filed his claim. He has therefore no valid ground of appeal in law or on procedural rules.
9. Under Chapter 15 claim, the appellant has no arguable case as all the objections raised by the appellant were answered by the CIRBCLAC dated 30^th August 2019. The appellant is a party directly affected by the subject matter of the claim and there is no undue delay in the making of the claim; and the appeal was the reasonable alternative remedy that would resolve the matter fully and directly but that the appellant chooses not to follow to resolve his grievances.
10. The learned judge concluded that one of the requirements of R15.3.18 was not met. He therefore struck out and dismissed the claim.

Submissions

11. For the appellant, Mr Eddie Toifai argued that the learned Judge has erred in law and fact having misdirected himself not to consider the material evidence in the sworn statement of Alfred Sapi filed 9 July 2021 in reaching his conclusion in his ruling made in the Chapter 15 conference on 9 December 2021.
12. He also argued that the learned Judge erred in law and fact having not considered the sworn evidence of Alfred Sapi and by concluding that there is no valid ground in law or on procedural rules.
13. He further submitted that the appellant could not utilize the legal process under s.256(3) of the Lands and Titles Act other than for judicial review within a very limited scope, having been unaware of the prejudice that he has been subjected to in the courts below. In such circumstances, he contended that the learned Judge having exercised his discretion improperly misdirected himself of the requirement under rule 15.3.18 (d) of the Civil Procedure Rules that there is no other remedy that resolves the matter fully and directly but only halfly met, and so the judge erred in law.
14. He finally argued that the sworn statement of Alfred Sapi raised serious questions about the neutrality of the secretary of the Chiefs Chamber and a panel member of CIRBCLAC and questions raised of the issue of bribery or influencing Ngella Local Court Clerk and a panel member of the CIRB CLAC and likelihood of bias which raise possible grounds for appeal on point of law. He argued that the Judge did not set his mind on the issue in that he did not consider the sworn evidence of Alfred Sapi, and has therefore misdirected himself to conclude that there is no arguable case.
15. For the first respondent, Mr Samuel Balea contended that the appellant’s grounds of appeal are confined on the contention that the Court below has failed to give due consideration to the sworn statement of Alfred Sapi filed on 21 July 2021. He contended that the sworn statement of Alfred Sapi is irregular in form; the appellant (claimant in the court below) was represented by the Global Lawyers law firm throughout the whole proceedings in the High Court. The sworn statement of Alfred Sapi was separately filed by Bets Legal Services. Bets Legal Services did not file any Notice of Change of Advocate prior to filing the sworn statement even though the sworn statement bore the same case name and number which was, at all material times, under the carriage of Global Lawyers. It is submitted the said sworn statement should not have been filed. The appellant had failed to seek for leave before relying on the said document in the court below. He submitted that the learned judge made no error in refusing to consider the said document.
16. He further submitted that the issues raised in the sworn statement of Alfred Sapi were new issues. They did not form part of the pleadings in the Judicial Review Claim. They were never pleaded at all and, therefore, the appellant cannot come to court and seeks relief of what has not been pleaded and particularised. He submitted that the court is therefore entitled to reject the document in its entirety as the appeal lacks merit. He submitted that the appeal has to be dismissed.
17. For the second respondent, Ms Pamela Rofeta of the Attorney-General’s Chambers submitted that the second respondent concurred with the High Court ruling delivered on the 9^th of December 2021 on the issues raised and that not all the requirements were met by the appellant (the claimant) in the Chapter 15 conference and as such, the Judicial Review Claim was dismissed accordingly. The appellant or any applicant is not entitled to judicial review as of right.
18. She submitted that leave requirement has been replaced by a conference under R15.3.18 with a conjunctive requirement of (a) to (d). She suggested that if the court is not satisfied that these requirements are met, as the Court did find in this instance, then the claim is struck out (leave for judicial review is refused). In doing so, the High Court was properly exercising the supervisory jurisdiction vested on it under Chapter 15.3.18 of the SI Courts (Civil Procedure) Rules 2007.
19. In regards to the first and second grounds of appeal, the second respondent refutes the appellant’s arguments that the learned Judge failed to consider material evidence in the sworn statement of Alfred Sapi dated 21^st of July 2021. Ms Pamela Rofeta submitted that the learned Judge had clearly stated in his determination that all material evidence were considered and he heard arguments from all parties. However, the learned Judge was not satisfied of the requirement pursuant to Rule 15.3.18(a) of the appellant having an arguable case.
20. In regards to the third ground of appeal, the second respondent submitted in support of the learned Judge’s ruling that the fourth requirement was not fully satisfied, as there existed a reasonable alternative pursuant to Section 256 (3) of the Land and Titles Act [CAP. 133] that could resolve the matter fully and directly.
21. In regards to grounds 4 and 5 of the appeal, the second respondent submitted that the learned Judge had referred to all the papers filed in the proceedings and heard arguments from the parties. However, the learned Judge was not satisfied that the appellant did have any arguable case and so, he dismissed the claim.

Discussion

22. We join all grounds of appeal and deal with them together.
23. The subject matter of the dispute between the parties in the present appeal is about a portion of customary ownership of land in the Central Islands Province. The judgment of this Court in Bavare v Nerepa [2011] SB CA 22; CA – CAC 21 of 2011 (25 November 2011) explained and set out clearly the statutory provisions as to the way in which customary land disputes were to be dealt with. We agree and reemphasise with what the Court of Appeal said in Bavare v Nerepa [2011]. The relevant parts of the said judgment are, as follows: -
    • “[10] ... the legislature has carefully put in place an exclusive hierarchy to deal with customary land disputes. S.254 Lands and Titles Act makes it clear that a local court shall have exclusive jurisdiction in all civil matters dealing with customary land. It is subject only to ss. 12, 13 and 14 of the Local Courts Act. ... S.12 effectively acts as a filter so that only decision of the Council of Chiefs that are not accepted by the parties reach the local court. S.13 sets out the powers of the local court, both as to evidence and the resolution of the matter. Under s.13, the local court clearly has the ability to hear the matter de novo if required;
    • [11] S.256 gives a right of appeal from the local court to a customary land appeal court. A magistrate, usually a Principal Magistrate sits as the clerk to such court, clearly to advise on the law and procedural matters. Matters of custom are left to the court. There is then a further right of appeal to the High Court on a point of law or any other ground of failure to comply with any procedural requirement of any written law.
    • [12] This latter provision is not void because of s.84 (1) of the Constitution ... S. 84(1) does not give the High Court exclusive jurisdiction to supervise subordinate proceedings.
    • [13] The legislative regime allows the appellants a hearing de novo in front of a local court. There is a further appeal to the Customary Land Appeal Court, which has the benefit of legal advice from a magistrate sitting as a clerk. Finally, there is a right of appeal to the High Court on a point of law or procedure.”
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.
26. In the present case, the appellant filed a Judicial Review Claim on 13 December 2019 and relied on it.
27. The learned Judge correctly convened a conference and turned to R:15.3.18 which reads:
    • “(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.”
28. The learned Judge had considered all the material papers filed in the proceedings and heard arguments from all the parties. He was satisfied in his findings that issues or objections raised regarding the paramount Chiefs Panel of lacking jurisdiction, the unfair treatment in the Local Court and the Customary Land Appeal Court were adequately dealt with by the lower land courts and in particular the CIRBCLAC in its judgment of 30 August 2019.
29. It is worth noting that the issue of objections against the lack of jurisdiction was overruled in the CIRBCLAC’s findings that the Ngella Paramount Chiefs Chamber consisted of a representative from the Longana House of chiefs. Further, the appellant had two opportunities to raise this issue in the House of chiefs, and Local Court, but he did not. The CIRBCLAC consequently dismissed this ground of appeal.
30. Again, on the issue of unfair treatment to which the appellant contended that the learned Judge erred in law in failing to consider evidence before him, we reject that argument for the reasons we give below.
31. In the present appeal, we agree and accept the submissions that the learned Judge in considering all material papers filed in the proceedings, had referred to the CIRBCLAC’s judgment dated 30 August 2019 in which it was ruled that there was not substantive material evidence adduced to show bias or bribery on the part of the members of the tribunal, and a member of the party to the dispute. We are therefore satisfied that the learned Judge did not err in law or fact in his consideration of all the papers filed in the proceedings before him and in his conclusion that the first requirement of the appellant, having an arguable case, was not satisfied.
32. In this appeal, the main question is whether the appellant had another remedy to him. Here, we agree with the judge that the appellant did under section 256 of the Land and Titles Act. The appellant chose not to file an appeal against the judgment of the CIRBCLA dated 30 August 2019. But instead, he waited until the three (3) months period had elapsed before he filed the Judicial Review claim.
33. The circumstances of this case amply justify that indemnity costs will be assessed and awarded in favour of the first and second respondents against the appellant.

Decision

34. The appeal is dismissed.
35. The first and second respondents are entitled to indemnity costs against the appellant and, such indemnity costs are to be taxed if not agreed.

Hansen, VP
Palmer, CJ
Lunabek, JA