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Pitasua v Western Customary Land Appeal Court [2023] SBHC 84; HCSI-CC 184 of 2023 (30 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil JURISDICTION

Civil Case No. 184 of 2023

BETWEEN

CHIEF MICHAEL PITASUA
(Representing himself and Solomo Tribe)
Claimant

AND:

WESTERN CUSTOMARY LAND APPEAL COURT
Defendant

Date of Hearing: 2 August 223
Date of Decision: 30 August 2023

Mr Michael Pitakaka for the Claimant
Ms Pamela Rofeta for the Defendant

RULING ON CHAPTER 15 CONFERENCE

Bird PJ:

1. The Claimant in this case filed a Claim (Category C) on 28 April 2023. A sworn statement of Chief Michael Pitasua was also filed on the same date in support of the Category C Claim. The Attorney General representing the Defendant filed their defence to the Claim on 1 June 2023. In support of their defence was the filed sworn statement of Ms Amanda Houpea on 5 May 2023 and an amended sworn statement of Ms Amanda Houpea filed on 28 June 2023. The Claimant filed their reply and sworn statement of Chief Michael Pitasua on 24 July 2023 and the matter was listed for chapter 15 conference on 2^nd August 2023.
2. In a chapter 15 conference, the court must be satisfied with all four requirements enunciated under rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). That rule provides:
   • r. 15.3.18 The Court will not hear the claim unless it is satisfied that:
   1. the claimant has an arguable case;
   2. the claimant is directly affected by the subject matter of the claim;
   100. there has been no undue delay in making the claim;
   4. there is no other remedy that resolves the matter fully and directly.
3. Rule 15.3.20 further provides that if the court is not satisfied about the matters in rule 15.3.18, the court must decline to hear the claim and strike it out.
4. At the chapter 15 conference, Ms Rofeta of counsel for the Defendant confirmed to the court that she will only be contesting the requirements of r.15.3.18 (a) and (d) of CPR. The requirements of r.15.3.18 (b) and (c) are not contested.

The Claimant’s case

5. Mr Pitakaka of counsel for the claimant argues that his client has an arguable case as per r.15.3.18 (a) of the rules. He argues that the claimant is challenging the manner in which the decision was made. He relies on section 77 of the Constitution which refer to the inherent jurisdiction of the High Court. He also relies on r. 18.3.2 and 15.3.4 of the CPR. Mr Pitakaka stated that the Choiseul Local Court decision favoured the claimant. That decision was quashed by the defendant in its ruling of 10 November 2022. It is submitted therefore that an arguable case is demonstrated in the sworn statement of Chief Michael Pitasua and the Claim (Category C) which was filed on 28 April 2023.
6. As to the requirement under r.15.3.18 (d), it is submitted by Mr Pitakaka of counsel that there is no other remedy that could resolve the issue in this case directly and fully but through judicial review by this court.

The Defendant’s case

7. On behalf of the Defendant, it is submitted by Ms Rofeta of counsel that the Claimant do not have an arguable case. The Defendant had in its ruling delivered on 10 November 2022 found that the North Choiseul Local Court failed to comply with s.12 (2), (3) (a) & (b) of the Local Courts Act when it made its decision on 13 December 1996. It is submitted that paragraphs 24 and 28 of the Defendant’s ruling dated 10 November 2022 pointed to the reasons why they were of the view that the North Choiseul Local Court decision of 13 December 1996 was invalid. They also went on further to discuss the requirement of s.12 (2) & (3) (a) (b) of the Local Courts Act which were not complied with by the Claimant party’s referral to the said Local Court. It was upon those reasons that the Defendant had quashed the decision of the North Choiseul Local Court dated 13 December 1996. It is therefore submitted that the Claimant do not have an arguable case.
8. With regard to the requirement under r.15.3.18 (d) of the rules, it is submitted by Ms Rofeta that the other remedy that could have resolved the matter fully and directly would have been the filing of an appeal to this court by virtue of section 256 of the Land and Titles Act (cap 133). The Claimant had failed to utilise that appeal process and had filed for judicial review in the guise of an appeal. It is submitted that the primary remedy is one of appeal. Ms Rofeta relies on the case of Bavare v Nepara [2011] SBCA 22; CA-CAC 12 in support of her argument. The Court of Appeal had stated in that case that such a hierarchy was put in place to deal specifically with customary land dispute, which indicates that the High Court’s jurisdiction to hear an appeal from the CLAC may only be invoked through this statutory process. It is therefore submitted that the remedy that should have resolved the matter fully and directly should have been an appeal under s.256 (2) of the LTA. The Claimant had failed to utilise that process within the time limited for appeal and so he should not be allowed to revitalise that appeal process through a claim for judicial review.

Analyses

9. From the Claimant’s Claim, I am able to work out that the ownership of Kadova land was initially litigated before the Varisi & Tavula Chiefs between M Sarujopa of Bapoqo Clan and H. Nguburu of Solomo Clan on 2 October 1986. Ownership was awarded to M Sarujopa of Bapoqo Clan. A referral was made to the North Choiseul Local Court by the losing party and the said Local Court made its determination on 13 December 1996 and published on 11 October 2021. Suffice to say, none of the parties to this judicial review claim had attached a copy of the North Choiseul Local Court decision to assist the court. On paragraph 2 of the Claimant’s statement of case, I can take it that ownership of the subject land was awarded to the Solomo Tribe by the said Local Court. An appeal was lodged at the Western Customary Land Appeal Court by members of the Bapoqo Clan. The Bapoqo Clan is not a party to this claim by the Claimant. The Respondents to that appeal were Henry Nguburu and Enoch Pitamama (deceased) who were representatives of the Solomo Tribe.
10. I must say that I am somewhat confused in regard to the names of parties to this case. The names of the Respondent before the WCLAC are different from the current Claimant. There is no explanation by the current Claimant whether or not he is representative of the named Respondents before the WCLAC. In fact, on the face of the Claim which was filed on 28 April 2023, the claimant represents himself and Solomo Tribe. In the WCLAC, Henry Nguburu and Enoch Pitamama (deceased) were represented by Tony Pitamama representing the Solomo Tribe. It is therefore my view that Mr Tony Pitamama should have been the right person to file a claim for judicial review against the decision of the WCLAC, not the current Claimant. Notwithstanding the fact, that he could be the Chief of the Solomo Tribe, only parties to prior decisions are entitled to file further claims against a determination unless leave of the court is sought to include or add a party. No application was filed by the Claimant to add him as a party to this case and there is also no explanation in the Claim and sworn statement how the current Claimant could be a party to an ongoing court process.
11. In any event, the effect of the quashing of the decision of the North Choiseul Local Court dated 13 December 1996 means that the decision of the Varisi and Tavula Chiefs dated 2 October 1986 awarding ownership of Kadova land to the Bapoqo Clan remains valid.
12. The Claimant had sought declaratory orders in his claim for judicial review. Having discussed the evidence as adduced by the Claimant as well as the Defendant in this case and taking into account the ruling of the WCLAC dated 10 November 2022, I am of the view that the Claimant had not satisfied the requirement of r.15.3.18 (a) of the CPR. The Claimant does not have an arguable case before this court. There is also the issue of locus standi as the current Claimant was not a party to the decision of the WCLAC. He lacks locus to commence this proceeding.
13. I am also able to find that the Claimant’s claim for judicial review is misconceived. He should have utilised the appeal process under s.256 (2) of the LTA but did not do so. But even if that process was utilised, the issues of law on non-compliance with s.12 (2) and (3) (a) (b) of the Local Courts Act would have been fatal to the claimant’s appeal to this court.
14. As I am not satisfied that the Claimant had met the requirements of r. 15.3.18 (a) and (d) of the CPR, I hereby struck out the Claimant’s Claim for Judicial Review under r. 15.3 20 of the CPR with cost. I hereby order accordingly. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge