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Mereki v Eddie [2025] SBHC 22; HCSI-CC 71 of 2023 (7 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 71 of 2023

BETWEEN:

RUSA JORGE MEREKI
(Representing direct descendants of late Nason Padaziru)
Appellant

AND:

BEN EDDIE
(Representing late Boaz Nagu)
First Respondent

AND:

CLERK TO THE WESTERN AND CHOISEUL CUSTOMARY LAND APPEAL COURT
(Representing the Western and Choiseul Customary Land Appeal Court)
Second Respondent

Date of Hearing: 12 February 2025
Date of Ruling: 7 March 2025

Mr P Afeau for the Appellant
No Appearance for the First Respondent
Mr J Devesi for the Second Respondent

RULING

AULANGA, PJ:

1. An appeal to the High Court against a decision of a Customary Land Appeal Court must be one that is based on an error of law or on a ground of failure to comply with a procedure prescribed by statute. A mere statement in the appeal without identification of the error, either in law or noncompliance to procedure, is insufficient to invoke the jurisdiction of this Court. The Appellant bears the onus to satisfy this requirement in the appeal grounds as required under section 256 (3) of the Land and Titles Act (Cap 133).

Background facts

2. The Appellant brought this appeal against the decision of the Second Respondent dated 25^th November 2022 over Ratatai customary land in Simbo, Western Province. In the Second Respondent’s decision, it quashed the decision of Ghorena Local Court and Vunagugusu Paele Bangara House of Chiefs (“VPBHCC”), and remitted the matter for rehearing before a differently constituted panel of chiefs within the locality of the disputed area. The Appellant disagreed and averred that the Second Respondent’s decision amounted to errors of law, and filed 6 grounds of appeal to this Court. There is no issue that the appeal was filed in time.
3. Before addressing the grounds and for the reasons that will be later explained, it is important to traverse the relevant background facts of the matter at hand.
4. This dispute started as an ex parte hearing before the VPBHCC. The First Respondent’s party at the commencement of the hearing walked out in protest due to their objection to recuse two sitting members, namely John Sogaviri and Russel Kaedi of the VPBHCC, was overruled. The VPBHCC decided in favour of the Appellant’s party. There was no written decision given by the VPBHCC.
5. The First Respondent’s party decided to refer the dispute to the Local Court for further hearing. Hence, they approached the secretary of the VPBHCC a few times for the decision but none was given to them. For reasons unknown, the secretary refused to provide the decision or even to arrange the presiding chiefs to sign the Unaccepted Settlement Form (“Form 1”), the pertinent requirements for valid referral of the dispute as required by section 12 (2) of the Local Courts Act (Cap 19).
6. The VPBHCC’s continuous refusal to provide the decision or sign the Form 1 made the First Respondent to attend to a Commissioner of Oaths in Gizo and made a statutory declaration to certify the unwanted and unethical conduct of the VPBHCC.
7. The First Respondent filed the Form 1 at the Local Court; however, it was filed without the signatures of the presiding chiefs. Moreover, it was filed without the decision of the VPBHCC.
8. On 26^th July 2022, the Ghorena Local Court heard the dispute and discovered that the VPBHCC decision was never made available to the Court. It then enquired with the Appellant and the Respondent for the decision. Both parties were unable to provide it to the Court because there was no written decision being made by the VPBHCC to the dispute. As a result, the Ghorena Local Court made a ruling on the unavailability of the decision and struck out the matter on the basis of no proper referral of the dispute to the Local Court. It then ordered that the matter be remitted to a differently constituted House of Chiefs within the locality of the disputed area.
9. The Appellant’s party disagreed with the Local Court’s finding and appealed the matter to the Western and Choiseul Customary Land Appeal Court (“CLAC”). The CLAC heard the matter, quashed the Local Court’s decision and made the following orders:
   1. The decision of the Vunagugusu Paele Bangara House of Chiefs dated 6^th August 2020 is hereby quashed.
   2. Matter to be remitted to a differently constituted House of Chiefs.
   3. Parties to meet their own costs, and
   4. 3 months right of appeal applies.
10. It is not clear in the decision of the Second Respondent whether it had the VPBHCC’s decision at the time of the hearing, but it seems that the reference to the date of the VPBHCC’s decision was in fact a reference to the date of the hearing of the matter before the VPBHCC.

Ground 1

11. This ground raises the argument that the Second Respondent had erred in law when it quashed the VPBHCC’s decision notwithstanding it has allowed four of the five appeal grounds.
12. Unfortunately, the Appellant did not point to any specific law or a breach of any procedural law under any statute committed by the Second Respondent in the exercise of its statutory powers under sections 255 (4) and 256 (2) of the Land and Titles Act.
13. I have looked at this ground. In my view, the decision made by the Second Respondent to remit the matter to the chiefs was founded on the overarching or core issue of whether the referral of the dispute to the Ghorena Local Court was proper. Despite having allowed four of the five appeal grounds, this proceeding brought before the Second Respondent against the decision of the Ghorena Local Court was decisive on this point. That is, there was no decision from the VPBHCC made available to the Ghorena Local Court to ascertain whether any decision in connection to the dispute was formally made by the VPBHCC and moreover, the VPBHCC did not sign the Form 1 when the matter was referred to the Ghorena Local Court for hearing as required under section 12 (1) (c) and (2) of the Local Courts Act. That was the overarching view held by the Second Respondent when it decided to remit the matter to the chiefs for rehearing. If that is so then the Second Respondent is entitled to reach such a decision pursuant to section 256 (2) of the Land and Titles Act. It may for purposes of section 256 (2) of the Act entitle to “substitute for the decision appealed against, such decision, and may make such order, as to it may seem just”. The appeal grounds that were allowed by the Second Respondent may be peripheral and not on the core issue decisive for the matter.
14. On that fundamental aspect of the case, it must be noted that before the Ghorena Local Court can hear a dispute, it must ensure that the requirements under section 12 of the Local Courts Act are satisfied. Otherwise, the referral of the dispute is ineffective or null and void. For purposes of clarity, section 12 of the Act states:
    • “(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.”
15. This section means the crucial jurisdictional facts that must be established before the Local Court can hear and determine any customary land dispute are the matters specified in section 12 (1)(a), (b) and (c), and (2). This must be accompanied with a written statement setting out the matters set out in subsection (3) (a) and (b). Importantly, the Form 1 must be signed by the presiding chiefs and the written statement of the referral must go together for completeness of the referral to the Local Court.
16. Because the Form 1 was not signed by the VPBHCC to effectuate a valid referral of the dispute to the Ghorena Local Court, in my view, the referral of the dispute to the Ghorena Local Court was defective. In other words, it did not comply with section 12 (1) (c) and (2) of the Local Courts Act on the grounds earlier alluded to. As such, there is no error by the Second Respondent in remitting the matter to the chiefs for rehearing. It is a decision that was available to it in the exercise of its statutory powers.
17. On the records, there is evidence at page 92 of the Appeal Book that the First Respondent had to attend to a Commissioner of Oaths in Gizo and made a statutory declaration to certify the unwanted and unethical conduct of the VPBHCC. Despite that was done out of desperation, the Local Courts Act in my view is silent on whether an aggrieved party to a chiefs hearing can still provide a statutory declaration with an unsigned Form 1 document as exception to bypass the requirements in section 12 of the Act when referring the dispute to the Local Court. This goes to show the defectiveness of the referral of the matter to the Ghorena Local Court.
18. There is no error of law identified for this ground and it must be dismissed.

Ground 2

19. This ground does not identify any error of law or any legal procedure said to have been breached by the Second Respondent in its decision. The decision of the Second Respondent in remitting the dispute to a differently constituted House of Chiefs within the locality of the disputed area means that the decision of the VPBHCC must inevitably be quashed. As stated earlier, the Second Respondent noted that there was a fundamental error in the validity of the referral of the dispute to the Local Court and hence, the Second Respondent was entitled to set aside the decision.
20. The Second Respondent by section 255 (4) of the Land and Titles Act can exercise all the powers of the Local Court and quashing the VPBHCC’s decision is one of them. This ground is dismissed.

Ground 3

21. This ground must be dismissed on its face because it is only a general statement without raising any identified error of law or procedure said to have been committed by the Second Respondent.
22. This is not a case about condoning the conduct of the First Respondent in the walk out protest but rather a case for the rehearing of the dispute due to the fatal error identified in the validity of the referral of the dispute to the Local Court. The Second Respondent is entitled to make that decision in order the referral of the dispute to the Ghorena Local Court complies with section 12 (1) and (2) the Local Courts Act.
23. If the VPBHCC had given its written decision to the parties and signed the Form 1, I do think that there would be a need to remit the matter to the chiefs. The decision would be either to uphold or to set aside the decision of the Ghorena Local Court. This ground must also be dismissed.

Ground 4

24. This appeal ground raises the argument that it is the role of this Court to supervise the chiefs in the resolution of customary land cases and that their roles and functions must be respected. The Appellant further argues that any error by the chiefs regarding the dispute can be referred to the Local Court for full hearing.
25. Whilst the sentiments raised for this ground are noted, the powers of this Court to hear this matter is governed by section 256 (3) of the Land and Titles Act. The jurisdiction of this Court is confined to either an error of law or breach of any procedure prescribed by statute. For this ground, the Appellant unfortunately only raised a general statement of complaint without identifying any error of law or breach of any procedural law under any statute said to have been committed by the Second Respondent. This ground must also fail.

Ground 5

26. There is little that can be grasped of this ground in that the Appellant argues the Second Respondent’s decision to quash the VPBHCC’s decision is inconsistent with its finding or conclusion.
27. Contrary to the Appellant’s perception of this ground and on a plain reading of Order 1 of the Second Respondent’s decision, it is clear that the Second Respondent had quashed the VPBHCC’s decision. That was the decision reached by the Second Respondent. Hence, I do not see any inconsistency in the Second Respondent’s decision as described or perceived by the Appellant. The Appellant’s contention for ground would be justifiable if the VPBHCC’s decision was upheld by the Second Respondent.
28. In any event, this ground raises the comments made by the Second Respondent at paragraph 16 of its decision. Those remarks should not be taken on piece meal basis but should be contextually read with the entire judgment in order to determine whether or not there was any error of law material to set aside the Second Respondent’s decision.
29. Perhaps the only omission made by the Second Respondent is in relation to its decision to quash the Ghorena Local Court’s decision which should have been upheld for consistency of the decision. However, in my view, the Second Respondent decided to recommence the dispute process again before the chiefs and so, that omission is not fatal for this Court to overturn the decision of the Second Respondent in light of the reasons held pertaining the validity of the referral of the dispute.
30. Again, the Appellant has failed to identify any error of law for this ground and it must be dismissed accordingly.

Ground 6

31. This final ground of appeal does not raise any error of law or breach of a procedural law stipulated by statute. As rightly described by counsel for the Second Respondent that this ground can be perceived as “a matter of convenience and not an error law or a failure to observe any procedural requirement of any law.” There is little being proved in the materials relied on by the Appellant that the decision made by the Second Respondent to refer the matter to the chiefs has flouted its powers under sections 255 (4) and 256 (2) of the Land and Titles Act. In light of that omission, it is my view that this ground does not raise any legal matters required under section 256 (3) of the Land and Titles Act and it must be dismissed accordingly.

Orders of the Court

1. Appeal is dismissed.
2. The decision of the Second Respondent dated 25^th November 2022 is affirmed.
3. Costs of this hearing shall be paid by the Appellant to the Second Respondent on standard basis.

THE COURT
Hon. Justice Augustine S. Aulanga
PUISNE JUDGE