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Ulasi v Ngwaefuana [2023] SBCA 34; SICOA-CAC 9013 of 2021 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The respondent issued a civil proceeding in the High Court titled Civil Case No. 500 of 2019 (Category A) as the Claimant against the appellant as the defendant. The respondent sought among others, permanent restraining orders against the appellant, his relatives, agents, associates, invitees and friends from carrying out any felling or milling of timber for sale, building houses or any other purposes within Abunga and Lauua customary lands in Central Kwara’ae, Malaita Province, which the respondent claimed were owned by him.
2. The respondent also claimed the appellant was residing at Ngadefiu village which was within Abunga customary land.
3. The respondent’s ownership of these customary land was confirmed by Aimela Council of Chiefs on 8 November, 2011.
4. The respondent claimed the appellant had since 2012, continuously trespassed into his customary land and cut and milled timbers without his approval.
5. It was claimed the respondent on numerous times asked the appellant to stop cutting and milling timber from the land, but the appellant ignored those requests. The respondent claimed on 29^th October, 2018 he wrote to the appellant, again asking him to stop cutting and milling timber but the appellant ignored the request.
6. The respondent as a result issued the civil proceeding against the appellant as alluded to above.
7. The appellant denied the respondent owned Abunga and Lauua customary land. He claimed he was the rightful owner of the said customary land. He further denied receiving a letter from the respondent asking him to stop cutting and milling timber in the said customary land.
8. Both respondent and appellant adduced evidence before the High Court in support of their respective claims of ownership over the disputed customary land. The respondent made a sworn statement on 29^th February, 2020, and annexed the decision of the Chiefs that was given on 8^th November, 2011. Relying on his sworn statement the respondent applied for summary judgment against the appellant on 30^th January, 2020.
9. The respondent’s application was heard on 29^th January, 2021. The decision of the High Court in favour of the respondent ordering summary judgment against the appellant was given on 21^st April, 2021.

Decision of the High Court

10. The primary judge among others, noted in his judgment that although the decision of the Chiefs was given on 8^th November, 2011, there was no referral to the Local Court by the appellant of the decision as the aggrieved party until 8 years 11 months later on 29^th October, 2020. The primary judge held that the referral was statute barred pursuant to s. 5 of the Limitation Act, because it was made after 6 years and pursuant to s. 17 of the Limitation Act, the appellant’s cause of action to make any referral arose on 8^th November, 2011, the date the Chiefs made their decision.
11. The primary judge therefore held that the respondent was entitled to summary judgment under Rule 9.57 of the Civil Procedure Rules 2007. But before ordering summary judgment, the primary judge noted that appellant did not have any real prospect of defending the respondent’s claim as was the basis for the application for summary judgment by the respondent.
12. Essentially, the primary judge held that appellant had lost his right to challenge the decision of the Chiefs because he did not refer the dispute to the Local Court within 6 six years after the Chiefs made their decision on 8^th November, 2011. The primary judge among others, relied on the decision of Brown J in Graham Rupakana v. Jacob SBCA 8; SICOA- CAC of 2017(13 October, 2017). In that case the claim was for declaratory orders relating to the decision of a Council of Chiefs over a disputed customary land. The primary judge there held the High Court had no jurisdiction to review decisions of the Council of Chiefs. The Local Court had jurisdiction over the dispute, if the decision was referred to the Local Court by the aggrieved party. The decision of the primary judge was affirmed by this Court on appeal.

Grounds of appeal

13. The appellant raised 4 grounds of appeal. They can be summarized as follows:
    1. The primary judge erred in holding that the appellant’s referral of the dispute to the Local Court was time barred under s. 5 of the Limitation Act, because s. 3 (2) and (3) (e) and (f) of the Act expressly provided that the provision of the Act shall not apply to an action or arbitration –
       • (i) arising out of or relating to any claim to a customary land as defined in the Land and Titles Act (as amended); or
       • (ii) falling within the jurisdiction of a Local Court established under the Local Courts Act (as amended).
    2. The primary judge erred in adopting decision of this Court in Rupakana v. Vazoto [2017] SBCA 8; SICOA-CAC 1 of 2017, without distinguishing the facts in that case from the facts in this case. In that case, the appellant without making a referral to the Local Court, sought judicial review of the Chiefs’ decision which was over 12 years old. In this case, the appellant as the aggrieved party made a referral of the disputed decision of the chiefs to the Local Court. The case of Rupakana is therefore irrelevant.
    3. The primary judge erred in holding that limitation period allowed by law for making a referral to the Local Court was 6 years under the Limitation Act, and not beyond.
    4. The primary judge usurped the powers of the Local Court by virtue of ss. 6 and 12 of the Local Court Act, when he held that the appellant’s referral to the Local Court was time barred.
14. The appellant seeks orders that the decision of the primary judge given on 21 April, 2021, be quashed and set aside.
15. The matter be remitted to the High Court for it to be stayed pending the outcome of the referral by the appellant of the chiefs’ decision to the Malaita Local Court on 29^th October, 2020.
16. The appellant seeks costs.

Submissions
By the appellant

17. Ms Ramo of counsel for the appellant submitted that appellant had prior to the decision of the court below, (given on 21 April 2021) made a referral to the Local Court on (29^th October, 2020) challenging the decision of the Chiefs. Therefore, the matters before the primary judge were still pending before the Local Court and only the Local Court had jurisdiction to hear and determine those matters.
18. It was submitted that because the subject matter related to customary land matters, s. 3 (2) (3) (e) and (f) of the Limitation Act, read together with s. 254 of the Land and Titles Act, provided exception to s. 5 of the Limitation Act, thus rendering s. 5 of the Limitation Act which provides the statutory bar inapplicable.
19. Ms Ramo submitted that whilst she conceded that appellant’s cause of action arose on 8^th November, 2011, when the chiefs gave their decision, there is no statutory limit under s. 12 of the Local Court Act, for the appellant to make his referral to the Local Court. Thus, the primary judge erred in applying the 6-year statutory limit under s. 5 of the Limitation Act.
20. It was submitted that after being satisfied that appellant made a referral under s, 12 of the Local Court Act, Malaita Local Court issued a notice to the respondent on 29^th October, 2020 advising him that appellant had made a referral against the Chiefs’ decision. It was submitted that primary judge was obliged to take judicial notice of the notice by the Local Court.

By the respondent

21. It was submitted that the referral of the dispute to the Local Court by the appellant on 29^th October, 2020 did not fall into the exception provided under s. 3 (2) and (3), (e) and (f) of the Limitation Act, because the referral could not constitute an “action” or an “arbitration”.
22. It was further submitted that argument by the appellant that there is no time limit under s. 12 of the Local Courts Act by which an aggrieved party may make a referral to the Local Court is open to abuse because if that was the law, the referrals can then be made after many years of the dispute arising. That would give rise to serious absurdity. Furthermore, the argument goes against the principle that as a matter of public interest, litigation must come to finality within a reasonable time.

Consideration and reasons for decision

23. Section 11 of the Local Courts Act which is an interpretation provision provides that “chiefs” mean chiefs (chiefs that inherit the title and status through traditional chieftain systems of their communities) or any traditional leaders residing in the area where the dispute arose and who are recognized and accepted as such by the parties. The latter situation is important to note because it means a person who may not have inherited the title and status of a chief but is recognized and accepted as a traditional leader in the community where the dispute arose can preside over customary land dispute as a chief.
24. Section 11 also provides that “customary land dispute” means, a dispute in connection with the ownership of, or, of any interest in, customary land or the nature or extent of such ownership and “dispute” means customary land dispute.
25. Sections 12, 13 and 14 of the Local Courts Act, are pertinent to the issues before us. They set out an elaborate process and procedure for a referral of a dispute to the Local Court or the decision of chiefs that is wholly acceptable to the parties can be recorded by the Local Court and be deemed a Local Court decision.
26. Sections 12, 13 and 14 are reproduced below for ease of reference.

Limitations on local jurisdiction to hear disputes

12 (1) Notwithstanding anything contained in this Act or in any other law, no local court “shall” have jurisdiction to hear and determine any customary land dispute unless it is satisfied that -
(a) the parties to the dispute had referred the dispute to the chiefs;
(b) all traditional means of solving the dispute have been exhausted; and
(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.
(2) It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred.
(3) In addition to producing a certificate pursuant to subsection (2), the party referring the dispute to the local court shall lodge with the local court a written statement setting out—
(a) the extent to which the decision made by the chiefs is not acceptable; and
(b) the reasons for not accepting the decision.

Powers of local court when hearing dispute

13. When hearing and determining any dispute it has jurisdiction to hear and determine, the local court may—
(a) have regard to the decision made by the chiefs in connection with the dispute;
(b) hear evidence from—
(i) any or all of the witnesses who gave evidence before the chiefs at the hearing of the dispute; or
(ii) any other witness called by the parties;
(c) call one or more of the chiefs who took part in making the decision to give evidence on the customary law which—
(i) is applicable within the locality of the land in dispute; and
(ii) governs the issues in the dispute;
(d) substitute for the decision made by the chiefs such decision as may to it seem just; or
(e) refer the dispute to the chiefs with such directions as it may consider necessary.

Local court to record decisions by chiefs

14.—(1) Where, in any dispute referred to the chiefs, a decision wholly acceptable to both parties has been made by the chiefs, the chiefs or any of the parties to the dispute may, within three months from the date of the decision, cause a copy of the decision to be recorded by the local court.
(2) A copy of the decision referred to in subsection (1) shall be in such form as prescribed in Form II of the Schedule and shall contain the particulars prescribed in that form and signed by the parties and two or more of the chiefs who took part in making the decision.
(3) Any decision recorded by the local court pursuant to subsection (1) shall be deemed to be a decision of the local court for the purpose of any law.

27. The central issue before the Court is whether the statutory limitation of 6 years prescribed under s. 5 of the Limitation Act, applied as a bar to the referral of the dispute relating to the decision of the Chiefs (made on 8^th November, 2011), by the appellant to the Local Court on 29^th October, 2020.
28. Having considered submissions by counsel and the material before the Court, we find the argument by the appellant that s. 3 (2) and (3) (e) and (f) of the Limitation Act exempted the referral by the appellant of the dispute regarding the decision of the Chiefs from the 6-year limitation under s. 5 of the Limitation Act misconceived, because exemption under 3 (2) and (3) (e) and (f) of the Limitation Act, relates specifically to an “action or an “arbitration´.
29. Section 2 of the Limitation Act, which is the interpretation provision provides that an “action” means among others, an original proceeding that lies in a court of law which seeks to enforce legal rights or redress for a wrong. The same section provides that an “arbitration” means among others, a reference pursuant to an agreement, enactment, or otherwise, of a present or future legal dispute and so on. Quite clearly a referral of a dispute relating to a decision of chiefs (over a customary land dispute) cannot be an “action” or an “arbitration” as defined in s. 2 of the Limitation Act. Such referral, and indeed the referral by the appellant was neither an “action” nor an “arbitration”. The referral by the appellant was therefore not exempted from the 6-year statutory limit under s, 5 of the Limitation Act. All the appellant’s arguments hinge on this point, as a result we reject all the arguments advanced by the appellant.
30. That said, given the types of issues raised by counsel, especially by Ms. Ramo regarding the referral by the appellant to the Local Court and the jurisdiction of the Local Court over the referral, we consider it appropriate to make some observations regarding application of ss. 12, 13 and 14 of the Local Courts Act, to the referrals to the Local Court.
31. Section 12 of the Local Courts Act in our considered opinion clearly indicates the legislative intent that all customary land disputes be resolved through all traditional means before the chiefs. In this regard, s. 12 (1) notably restricts Local Courts from hearing and determining any dispute that may be referred to it, unless the requirements set out in the sub-section are satisfied, namely; the dispute has been referred to the chiefs by the disputing parties; the disputing parties have exhausted all the traditional means of solving the dispute and no decision wholly acceptable to both parties had been made by the chiefs in connection with the dispute.
32. Section 12 (2) then provides that it shall be sufficient evidence that first and second requirements under sub-section (1) (a) and (b) had been fulfilled, if the party referring the dispute to the Local Court produced a certificate as prescribed in Form 1 of the Schedule to the Act, containing the required particulars and signed by two or more chiefs to whom the dispute had been referred.
33. Then s. 12 (3) provides further that in addition to producing a certificate pursuant to sub-section (2), the party referring the dispute to the Local Court shall lodge with the Local Court a written statement setting out -
    • (a) the extent to which the decision made by the chiefs is not acceptable; and
    • (b) the reasons for not accepting the decision.
34. Upon these requirements being satisfied, the Local Court will then pursuant to s. 13, have jurisdiction to hear the dispute denovo, in which witnesses that gave evidence before the chiefs may be called to give evidence, besides other witnesses and one or more of the chiefs who took part at the hearing of the dispute who have the local knowledge of the customary law in which the dispute arose. The decision of the Local Court will substitute the decision of the chiefs. The dispute will then be referred to the chiefs with such directions which the Local Court may consider necessary.
35. Where the decision of the chiefs was wholly acceptable to the parties, s.14 provides that chiefs or any of the parties to the dispute may within three months from the date of the decision cause a copy of the decision to be recorded by the Local Court. A copy of the decision to be in such form as prescribed in Form II of the Schedule to the Act and signed by the parties and one or more of the chiefs who took part in the decision making. Any decision recorded by the Local Court shall be deemed a decision of the Local Court for the purposes of any law.
36. From the process outlined above, it is clear that a referral of a dispute to the Local Court must be made by the party aggrieved by the decision. But if the decision of the chiefs is wholly acceptable to the parties, then it will after going through the process discussed above be recorded in the Local Court and be deemed a decision of the Local Court.
37. Having regard to this process, and the observations we made earlier in our judgment we find the appellant’s submissions untenable for two reasons. First, apart from the appellant’s referral being statute barred, the appellant has not shown that he had complied with the mandatory requirements under s. 12 in making his to the Local Court. Thus, even if the referral was not statute barred under s. 5 of the Limitation Act, it would still be incompetent and invalid for failure to comply with the requirements under s. 12.
38. The onus is on the aggrieved party to make a referral of a dispute to the Local Court. And given the scheme of s. 12 of the Local Court Act, a successful party has no locus standi to make a referral to the Local Court. See, Graham Rupakana v. Jacob Vozoto & Ors and President of Batava Council of Chiefs HCSI –CC No. 35 of 2016 and Rupakana v. Vozoto (2017) SBCA 8; SICOA-CAC of 2017 (13 October, 2017).
39. For these reasons we also find that the respondent had properly invoked Rule 9.57 for a summary judgment. The order for summary judgment was also properly made.
40. In the result, we cannot find any error in the judgment of the primary judge.
41. Consequently, we make following orders: -
    1. The appeal is dismissed.
    2. The appellant will pay the respondent’s costs of and incidental to this appeal and costs of and incidental to the proceeding before the High Court, to be taxed if not otherwise agreed.
42. Orders accordingly.

Hansen (P)
Palmer (CJ)
Gavara-Nanu (JA)