IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 40 of 2011

BETWEEN:

BOBBY HOROTO and JOHN
WAIHURA
Claimants

And:

POIKERA HOUSE OF CHIEFS
First Defendants

And:

EMMANUEL HANAOHIMAE
Second Defendant

Mr Balea for the Claimants
Mr Tagini for the First and Second Defendants

Date of Hearing: 8th November 2011
Date of Judgment: 8th November 2011

(full reasons published 9th November 2011)

Decision following Rule 15.3.16 Conference

1. The Claimants filed process on 14th March 2011 seeking a quashing order in respect of a decision made by the First Defendants on 14th August 2010. That decision related to Hanekaria Customary land in West Are Are. Defences have been filed and in accordance with the Rules a conference was called. The court is required (by Rule 15.3.17) to consider the various matters set out in Rule 15.3.18.

2. The court must be satisfied that the claimant has an arguable case and the claimant is directly affected by the subject matter of claim and there has been no undue delay in making the claim and there is no other remedy which would resolve the matter fully and directly. If the Claimants fail to satisfy the court on any one of those points the claim will fail.

3. The first three elements can be dealt with shortly. The Claimants do not have to establish they have a solid case at this stage. All they are required to do is establish there are issues or questions for the court to decide. That is, to show whether, if all that is pleaded is proven to be correct, the claim would succeed. In this case the Claimants complain of procedural issues. They say they were not given proper notice of the Chiefs hearing. They also say despite telling the Second Defendant about a death in the family the hearing went ahead. The Claimants say the hearing was not properly constituted because several "officials" were not present and finally the Claimants complain of bias. I do not have to deal with these issues in detail for reasons which will become apparent later. However, it must be said on looking through the various sworn statements the case the Claimants want to argue is extremely weak.

4. As parties to the Chiefs' hearing, the Claimants are obviously and clearly directly affected by the subject matter of the claim.

5. As to delay, the claim was filed within the six month limit set out in the Rules (Rule 15.3.8). I do not have to decide whether a claim filed on the last possible day under the rules evidences undue delay. I could foresee circumstances where there could be said to be undue delay even though a claim was filed within the time allowed for in the rules, This does not seem to be the case here but again, for reasons which should become clear, no decision on that point needs to be made.

6. The reason why I declined to hear the claim and why I struck it out is because there is another remedy available to the Claimants which would resolve it fully and directly. The provisions of section 12 of the Local Courts Act [Cap.19] and section 254 of the Land and Titles Act [Cap.133] apply. Those provisions are well known and do not need to be recited in any great detail. Suffice it to say the latter section reserves to the Local Court an exclusive jurisdiction, "in all matters and proceedings of a civil nature affecting or arising in connection with customary land". The former section states that before a local court can become involved it has to be satisfied the parties have referred the dispute to the chiefs, that all traditional means of solving the dispute have been exhausted and that no decision "wholly acceptable to both parties has been made by the chiefs". This is clearly such an instance, the Claimants in this case are manifestly unhappy with the Chiefs' decision, and the matter should be referred to the Local Court.

7. The whole purpose of the amendments to the Local Courts Act in 1985 (the Nori amendments) was to allow decisions to be made about issues of custom in a traditional fashion. Decisions about custom were to be made in accordance with custom. There are no rules of procedure, no rules of evidence, no formal summonses. The hearing is to be conducted by the chiefs (and that means no more or no less than "chiefs or other traditional leaders residing within the locality who are recognised as such by the parties") as they see fit and in accordance with custom. If a party is not happy with a decision on custom made by those who are acknowledged to know about custom their remedy is to file an unaccepted settlement form in the Local Court and have the issue dealt with there. Any perceived problems about the way the hearing was conducted by the chiefs can be dealt with by the Local Court. The Local Court can be addressed on the "procedures" implemented by the chiefs and the local court can decide whether or not they accorded with custom. That is the statutory process set out in the Land and Titles Act and the Local Courts Act. That is the process available to the Claimants.

8. As there is therefore another remedy available to the Claimants which would fully and directly resolve the dispute this court cannot declare itself satisfied that all the conditions set out in Rule 15.3.18 are met. The court must, in accordance with Rule 15.3.20, decline to hear the claim and strike it out. That is the order I made.

9. On the question of costs, they are at the discretion of the court and they usually follow the event. I invited the Claimants' counsel to address me on costs and no good reason was put forward as to why the usual provision should not apply. The Claimant shall pay the costs of the defendants, such costs to be taxed on a standard basis if not agreed.

Chetwynd J.