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Aujare v Manegere [2020] SBHC 23; HCSI-CC 544 of 2019 (21 April 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 544 of 2019

ERIC NGOKRO AUJARE
First Claimant

SELWYN RIUMANA
(Members of Pau Tribe)

V

APPOLLOS MANEGERE
First Defendant

ISABEL LOCAL COPURT
Second Defendant

Date of Hearing: 8 April 2020 (Written Submission)
Date of Ruling: 21 April 2020

No Appearance for the First and Second Claimant (No written submission despite direction)
Mr. C Hapa for the First Defendant (Written submission)
No Appearance for the Second Defendant

RULING ON CHAPTER 15 CONFERENCE

1. This is a chapter 15 conference, conducted into this judicial review claim filed on 27/09/2019. Simultaneously, 1^st defendant also filed application to strike on 18/10/2019. Whether chapter 15 conference or application to strike, we will still get to the same result. Same result is either to allow this judicial review claim to proceed to trial or to dismiss it early, under Rule 15.3.18 (a) - (d)).
2. At this conference or strike out application, claimants must satisfy the court of four (4) requirements under Rule 15.3.18 (a) – (d), in order to progress to trial. Four requirements are: (a) claimants have an arguable case, (b) claimants are directly affected by the subject matter of the dispute, (c) there is no undue delay and (d) there is no other remedy that will resolve this dispute fully and directly. I am satisfied that this judicial review claim can pass, the first three (3) requirements. That is to say (a) there is an arguable case, (b) claimants are directly affected by the subject matter of this dispute. And (c) there is no undue delay.
3. As to requirement (d), whether or not there is another remedy, to resolve this dispute fully and directly, I think there exists another remedy. This is a dispute on land ownership and tribal membership of the Pau tribe, originating from the Isabel Local Court (ILC) decision, which claimants are pursuing to quash herein, on the ground of res judicata. The ILC decision is case referenced Land Case No. 05 of 2018, judgment delivered 26^th August 2019. There exists a statutory regime to fully and directly resolve this dispute (Chiefs – Local Court – Customary Lands Appeal Court – High Court and Court of Appeal, on error of process and law only). Speaking about this statutory regime, Court of Appeal relevantly stated: -
   • “The legislative regime allows the appellants a hearing de nevo in front of a local court. There is a further appeal to the Customary Land Appeal Court, which has the benefit of a legal advice from a Magistrate sitting as a clerk. Finally, there is a right of appeal to the High Court on point of law or procedure”.

“Given this hierarchy of rights, we are satisfied there is ample opportunity for the appellants’ complaints to be considered. It follows Chetwynd J, was correct to conclude that the appellants had failed to satisfy the requirements of Rule 15.3.18 (d) and to strike out the claim”^[1].

4. In this case, the ILC decision challenged through this judicial review claim, had been appealed by the same claimants herein, to the Isabel Customary Lands Appeal Court (ICLAC) in ICLAC Case No. 9 of 2019. The ICLAC had given its decision on 29/11/2019. Claimants herein – being appellants in ICLAC Case No. 9 of 2019, have appealed the decision of ICLAC in ICLAC No. 9 of 2019, to the High Court, in two pending cases – Notice of Appeal in Civil Case 30 of 2020 (filed by DBL) and Notice of Appeal in Civil Case 87 of 2020 (filed by James Kaboke).
5. Practically, what this means is, the ILC decision, claimants, seeks to review herein, had been properly dealt with under the legislative regime provided by Parliament. And two Notices of Appeals under that regime are currently pending in this court (repeat paragraph 4). So truly, another remedy existing under the statutory regime, had been utilized and is in progress, in the two Notices of Appeal filed in the High Court, as mentioned in paragraph 4. I will therefore dismiss this judicial review claim. For I am satisfied another remedy exists to fully resolve this dispute directly. Whilst that regime is being currently utilised in the two Notices of Appeal - Civil Case 30 of 2020 and Civil Case 87 of 2020, this judicial review claim, cannot be permitted to run concurrently, in a manner prejudicial to the requirement of Rule 15.3.18 (d).
6. Accordingly, this judicial review claim is dismissed with cost on standard basis.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDG

^[1] Bavare v Nerapa [2011] SBCA 22; CAC-CAC 21 of 2011 (25^th November 2011)