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Hallu v Pentani [2009] SBCA 1; CA-CAC 32 of 2007 (24 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

EX TEMPORE DECISION

WILLIAMS JA: The appellants applied to have a decision of the Marovo Council of Chiefs made on the 7th of December 2005 quashed. At first instance the Judge of the High Court refused to quash that decision and referred all issues raised in the proceedings to the appropriate local court. From that decision this appeal has been lodged. The background facts can be shortly stated.

By letter dated 15th November 2005 the second respondent to this appeal wrote to the Marovo Council of Chiefs requesting a hearing to determine ownership of the Olavotu Muquri Land. The letter asked that the matter be determined as a matter of urgency. Somewhat surprisingly, given the delay frequently seen in relation to determinations by council of chiefs, this matter was set down for hearing on the 7th of December 2005.

It is said that all parties were informed of that date but no specifics are stated by the secretary of the council of chiefs as to the notice given to the present appellants. It is also of some significance that the secretary of the council of chiefs wrote to the second respondent on 29 November 2005 informing the second respondent of the hearing date on 7th December, and asking the second respondent "due to the very short notice given to me, can you on my behalf to personally informed the above chiefs producing this letter to them?" In other words, the secretary asked the second respondent to notify the chiefs of the hearing date.

It appears that a person from the appellant’s tribe informally became aware of the hearing date on or about the 3rd December 2005. The only material as to service on the appellant is to the effect that the second respondent served a camp manager with papers which ultimately came to the knowledge of the appellants elder brother on or about the 3rd of December. That was four days before the hearing and there was insufficient time for them to prepare a case and appear at the hearing on 7th December 2005.

The hearing before the chiefs proceeded on the 7th of December 2005 in the absence of any appearance on behalf of the appellant and his tribe. Then there is an issue as to what was decided by the chiefs. Some six of them signed a document purporting to evidence a decision in favour of the present second respondent. But subsequently three of the chiefs signed affidavits denying that. They said they could not read and their signature was obtained by a person who appeared at the hearing representing the second respondent on the basis of a false representation as to what was within the document.

The position then before the High Court Judge was that short notice was given for the hearing before the chiefs, the present appellants did not appear at that hearing and there is dispute as to what the chiefs decided. That dispute could only be resolved after a hearing in which credibility would be a vital issue. Whilst it is recognized the council of chiefs is not bound by the rules of procedure which ordinarily apply to a court, there is serious concern as to the legality and fairness of what occurred and what decision was made on the 7th of December 2005. It follows that that decision cannot be allowed to stand. The issues cannot be properly resolved by sending the issues to the local court as was held at first instance. Indeed, at the end of oral submissions in this court, Ms Bird for the second respondent conceded that the most appropriate course was to send the matter back to the council of chiefs.

The appeal should be allowed, the decision of the chiefs of 7 December 2005 quashed and the matter remitted to the council of chiefs for speedy determination. Costs of the appellant will be paid by the second respondent, to be agreed or taxed.

Goldsbrough JA
President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal