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Nivah v Boso [2010] SBHC 1; HCSI-CC 032 of 2009 (18 February 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 32 of 2009

BETWEEN:

HEDISON NIVAH, HOPEFUL PIOSASA
RICHARD BOSO
(representing the Gemu and Gumi tribe)
Claimants

AND:

TURITI BOSO, RUBEN ZIVOKA,
PETER PAULSEN AND ABEL KARINA
(representing the Lamupeza tribe)
First Defendants

AND:

BEN RAQO
(representing the Roviana House of Chiefs)
Second Defendant

AND:

PAT LOE
(representing the Parara/Kohingo House of Chiefs)
Third Defendant

Date of Hearing: 10 December 2009
Date of Decision: 18 February 2010

Mr. Tegavota for Claimants
Mr. Apaniai for First Defendants
No appearance for Second and Third Defendants

DECISION ON APPLICATION TO STRIKE OUT CLAIM

Cameron PJ:

1 The first defendants apply to strike out the claim against all the defendants. The claim itself seeks declarations that decisions by two Councils of Chiefs dated 30 August 2006 and 29 November 2007 respectively were invalid.

2 The first decision of 30 August 2006 was made by the Parara and Kohingo House of Chiefs, and related to the customary ownership of certain lands on Parara Island, Western Province. The minutes record the decision that the blocks of land "Madekoloko, Kakarumu, Pari, Paravoe, Koguseni and Givusu (from north to south) are under the perpetual customary ownership right of the Lamupeza tribe. Confirmed by the chiefs." Those lands then became the subject of a timber concession.

3 The second decision of 29 November 2007 was made by the Roviana Chiefs. The issue at that hearing was whether the boundaries of Sanalae land, acknowledged to be in the ownership of the Aqo/Simaema tribe (of which the claimant asserts he is the rightful representative), were within the boundaries of the lands held to be in the customary ownership of the Lamupeza tribe (the first defendants) by the previous decision of 30 August 2006. The claimant asserted that the Sanalae land, over which he had the rights to grant timber rights, was within the boundaries of the Lamupeza tribe land. The Roviana Chiefs, however, disagreed, and held as follows:

"In our identification, the old Sanalae Cattle Fence falls well outside of the Timber Concession Area of Lamupeza Tribe on Central Parara .....

The Roviana Chiefs Hearing proved beyond reasonsable doubt that Sanalae Land is a particular Land area located above Sidoko. It is not a land that covers the Concession Area of Lamupeza Tribe on Central Parara"

Thus the effect of the decision was to exclude the claimant from any rights of ownership within the boundaries of the previously identified Lamupeza tribe lands, and over which a timber concession was held.

4 The claimant argues that the first decision of 30 August 2006 was invalid because it was not a decision at all within the meaning of sections 12 to 14 of the Local Courts Act. The basis for this contention was first that the claimant (who asserted he was the rightful representative of the competing tribe Aqo/Simaema) did not receive prior notice of the hearing and was therefore deprived of the opportunity of being present. The second was that the composition of the Chiefs who heard the matter was slanted in favour of the Lamupeza tribe and was comprised "mainly of families and Lamupeza tribal representatives who have similar interests and favors [sic] of the first defendants" (para 5, sworn statement of Hedison Nivah dated 16 March 2009).

5 The first defendants dispute that the claimant is the rightful representative of the Aqo/Simaema tribe. Arthur Paia of Rereveti village, Parara Island in a sworn statement dated 23 April 2009 deposes that he is the head Chief of the Aqo/Simaema tribe, and that the claimant is only the chief of his own clan, the Nivah clan, which is a clan within the Aqo/Simaema tribe. Arthur Paia did attend and participate in the 30 August 2006 hearing, and accordingly the first defendants submit that the Aqo/Simaema tribe were properly represented at the hearing. The first defendants also dispute the assertion that the composition of the Chiefs was unfairly slanted in their favour.

6 The first defendants also dispute that the claimant was not given notice of the hearing. Donald Bato of Buni village, Parara Island in a sworn statement dated 5 May 2009 stated that on 20/8/06 (10 days before the hearing) he informed the claimant in Honiara that the dispute had been referred to the Kohingo Chiefs and would be heard soon, and that he should proceed to Parara Island. Donald Bato says that the claimant replied that he would go and attend the meeting.

7 Whether the claimant is in fact the chief of the Aqo/Simaema tribe or merely the chief of the Nivah clan forming a sub-tribe of the Aqo/Simaema tribe is for the local customary Courts to decide based on custom. Furthermore, and for the same reason, this Court cannot determine whether or not the composition of the Chiefs who heard the matter was unfairly slanted in the first defendants’ favour. Nor can it resolve on the sworn statements alone disputed facts as to whether or not the claimant received prior notice of the hearing.

8 None of the matters which the claimant has raised, even if his version of events is assumed to be correct, persuade me that the decision of 30 August 2006 was not a decision within the meaning of sections 12 to 14 of the Local Courts Act. No set procedures are there laid down for the making of a decision by the chiefs, and in this case there is a clear written finding by the chiefs in favour of the first defendants. The claims of wrongful representation of the Aqo/Simaema tribe at the hearing and an unfair composition of chiefs do not render the decision a nullity. The authority of Balesi v. Aloni [2009] SBHC 40 is distinguishable as in that case there was no process of decision-making undertaken by the Chiefs.

9 If the claimant is dissatisfied with the outcome of the chiefs hearing, as he clearly is, then the proper course is for him to refer the decision to the relevant Local Court to hear and determine the matter afresh. In that forum the claimant would be free to raise the matters of which he complains relating to the Chiefs hearing, and have those determined as necessary (for example, the question as to who is the proper representative of the Aqo/Simaema tribe). If, as he asserts, he was wrongly deprived of the opportunity to be heard before the Chiefs, then he will have that opportunity before the Local Court.

10 It is worth noting that in CC157 of 2007 the claimants applied to quash the 30 August 2006 decision of the chiefs, but after obtaining leave to bring such claim out of time the case was discontinued. I attach no particular weight to this.

11 In relation to the 29 November 2007 decision, the claimant also complains about unfair composition of the chiefs, and asserts that the decision merely confirmed the earlier decision of 30 August 2006. This last point is not factually correct, as can be seen from my narrative of events. My view that the matter ought to be pursued by the claimants in the Local Court applies also to the 29 November 2007 decision.

12 The making of declarations is discretionary. For the reasons given, I decline to grant the declarations and dismiss the claim in its entirety against all defendants. The first defendant is awarded costs against the claimants in an amount to be agreed within 28 days, and failing agreement the costs are to be taxed.

BY THE COURT

Justice IDR Cameron
Puisne Judge