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Taluiburi v Kikiolo [2024] SBCA 29; SICOA-CAC 34 of 2023 (25 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Fanimanu is customary land in To’obaita constituency in North Malaita. The Fanili tribe (to which the appellants belong) and the Eke tribe (to which the second defendants belong) are in dispute as to its ownership.
2. On 27 June 2022 the first respondents to this appeal (a panel of Chiefs belonging to the Manulafa House of Chiefs) determined the ownership dispute in favour of the second respondents to this appeal (the Eke tribe).
3. The appellants commenced a proceeding in the High Court for judicial review of the first respondents’ decision. They sought an order quashing that decision on these grounds –
   • (i) that it was made in breach of an order made by the Malaita Local Court in Land Case 03 of 1993 dated 13 April 2021;
   • (ii) that it was in breach of ss 11 and 12 of the Local Courts Act;
   • (iii) that it was unfair and biased.
4. This is an appeal against the decision of the High Court dismissing the judicial review claim.

Background

5. In 1944 a District Officer found that the Fanili tribe were the owners of the land.
6. On 20 October 1993, in a claim brought by Ratai, a member of the Eke tribe, against Basil Osibiata representing the Fanili tribe, a panel of Chiefs made an ownership decision in favour of the Eke. Ratai referred that decision to the Malaita Local Court despite the decision being in his favour (Land Case No 03 of 1993).
7. There has been no explanation for the very long delay between the referral to the Local Court in 1993 and that court’s dealing with it in April 2021. In the meantime the representatives of the two tribes changed until the appellants in the present appeal represented the Fanili and the second respondents to the appeal represented the Eke. The Chiefs who made the impugned determination can be assumed to have passed on or otherwise become unavailable by the time the Local Court dealt with the matter.
8. By s 12(1) of the Local Courts Act –
   • 12. (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.
9. By s 13(d) and (e) the Local Court’s powers include substituting for the Chiefs’ decision such decision as seems to it just and referring the dispute to the Chiefs with any necessary directions.
10. On 13 April 2021 the Malaita Local Court made the following orders –
    • (1) Set aside the Chiefs’ decision of 20 October 1993;
    • (2) Refer both parties to an agreed panel of Chiefs within the locality of the land with order for both parties to equally share the cost of the Chiefs settlement;
    • (3) Order the Chiefs to also hear stories of party witnesses from neighbouring lands/tribes and to survey the land, record the boundary marks and tabu sites within as requested by parties and attempt to determine the issues touched on in this ruling;
    • (4) The party who cannot accept the decision of the Chiefs can refer the dispute to the Local Court with order for the Chiefs to produce minutes of their hearing together with the Form 1 ‘Unaccepted Settlement’;
    • (5) Parties to bear own costs.
11. According to a letter dated 25 October 2021 from an officer in the Magistrates Court Office at Auki to the solicitor for the second respondents to this appeal, during the hearing on 13 April 2021 –
    • .... a question was put by the Court to the defendant in that case whether he would agree if the case is to be referred to chiefs within the locality of the land in question. In response, the defendant agreed. A follow-up question about chiefs within the locality was again put to the defendant by the court and to which he admitted the Manulafa chiefs in response. Finally he was asked whether Manulafa chiefs is under Toómbaita Council of Chiefs and his response was again in the affirmative (a ‘yes’).

Be that as it may, the order made by the Local Court referred the dispute to ‘an agreed panel of chiefs within the locality of the land’ rather than to any particular panel.

Hearing & determination by first respondents

12. Subsequently the second respondents engaged the first respondents to hear the dispute. After the first respondents set 5 October 2021 as the hearing date, the appellants’ solicitor wrote to the Manulafa House of Chiefs objecting to their determining the dispute on the following basis –
    1. Several Chiefs of the Manulafa House of Chiefs panel that will hear the customary land dispute are key witnesses for Taloinao and Agwainao and may not be impartial or independent and are likely to be biased against Taluiburi, Taebaea and Irokona; and
    2. The decision to come before the Manulafa House of Chiefs was made by Taloinao and Agwainao and not by consent of all the parties as ordered by the Malaita Local Court in Land Case No 03 of 1993.
    3. Premising on the above OBJECTION we will not appear before the Manulafa House of Chiefs on the date as summoned and we will not accept any decision by the Manulafa House of Chiefs.
    4. We prefer that a more neutral and independent House of Chiefs be agreed between the parties as ordered by the Malaita Local Court before we will be inclined to attend.
    5. In the meantime, you are asked to issue a cancellation of the hearing scheduled for 5 October 2021 and to cease from accepting a referral by a single party as this matter is subject to the Malaita Local Court Orders in Land Case No 03 of 1994.
13. The appellants maintained their objection, and did not appear before the first respondents on 5 October 2021 or any of three other dates subsequently set for the hearing. Their solicitor wrote to the first respondents on 10 December 2021 and 23 June 2022 confirming their objection.
14. On 27 June 2022 (the fourth hearing date) the first respondents heard the second defendants and determined the ownership dispute in the second respondents’ favour.

Judicial review

15. On 2 September 2022 the appellants commenced a proceeding in the High Court for judicial review of the decision made by the first respondents on 27 June 2022 (HC SI CC No 382 of 2022). The first defendants to the claim (the first respondents to this appeal) were the persons who had made the impugned decision and the second defendants (the second respondents to this appeal) were the representatives of the Eke Tribe in whose favour the decision had been made.
16. Curiously the first and second respondents were represented in the High Court by the same lawyers. One of the first respondents, Wilfred Ba’i, swore an affidavit opposing the appellants’ claim for judicial review. Again before this court the first respondents entered the fray by being represented by the same lawyers as the second respondents. Although the point was not taken in the appeal, the Court of Appeal observes that the first respondents ought to have adopted a neutral stance by undertaking to abide the order of the High Court and subsequently that of the Court of Appeal.
17. This court rejects counsel for the appellants’ submission that the first respondents were not ‘recognised’ within the definition of ‘chiefs’ in s 11 of the Local Courts Act. That definition is as follows –
    • ‘chiefs’ means chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute.

It has two components– first, the fact that they are chiefs who reside within the locality of the land in dispute and second, recognition, in the sense of knowledge and acceptance, of that fact by both parties to the dispute. Neither the appellants nor the second respondents have ever suggested that either of those components was not fulfilled in the present case.

18. The point taken by the appellants is that the first respondent were not an ‘agreed panel’ within the meaning of the Local Court order. That is a different matter.
19. In his affidavit Ba’i swore that the parties had agreed to the Manulafa House of Chiefs hearing the dispute. He gave no particulars of their having done so, and whatever may have been said in response to questions from the Bench before the Local Court made its order, that order referred merely to ‘an agreed panel of chiefs within the locality of the land’ – in other words, a panel to be agreed upon by the parties. From the time the first respondents first set a hearing date, the appellants made their position quite clear: they did not agree to the appointment of the first respondents as the panel of Chiefs to determine the dispute. This Court accepts that their appointment did not meet the requirements of the second paragraph of the Local Court’s order.
20. In its reasons for dismissing the claim for judicial review, the Judge who determined the judicial review claim erred in law in concluding that bias could not arise in a Chiefs’ determination of a land ownership dispute. His Lordship said -

On the issue of objection my view is that the proceeding of the Panel of Chiefs is not a court hearing nor do the Chiefs sit as a Court. The Local [Courts] Act does not provide procedures to govern the proceeding of chiefs using traditional means of resolving land dispute. Section 11 of the Act however provide that they must be chiefs residing within the locality of the land in dispute and must be recognised as chiefs by the parties to the dispute.
Since the Act require that the chiefs must reside within the locality of the land in dispute, I am of the view that the Act intend the Chiefs must have knowledge of the land in dispute. This in my view to allow the Chiefs to use their personal knowledge of the land in dispute to resolve the land dispute without having to look for evidence from outside. Because the Act allow chief to use their personal knowledge in the land in dispute to resolve the land dispute, the issue of bias should not arise.
In the present case the Claimant were objecting the Manulafa house of Chief because some of the chief have witness for the Second Defendant in the past case but Claimant provide no evidence to support this allegation. In any event since the Chiefs are allowed to use their personal knowledge of the land in dispute to resolve the land dispute the issue of bias does not arise.

21. Impartiality is a fundamental requirement for the valid determination of a dispute as to ownership of customary land. Chiefs must act impartially and be seen to do so. They must not undertake the adjudication if they are in fact biased for or against any of the parties to the dispute, or if there would be a reasonable perception that they were biased. Contrary to his Lordship’s view, there is no inconsistency between the law relating to bias and the Chiefs being able to use their own personal knowledge of the land in coming to a determination as to its ownership. While they may use their own knowledge of the land, they should ensure the parties are aware that they are intending to do so and the content of the knowledge they intend using.
22. Whether there was actual bias or a reasonable apprehension of bias is a question of fact not justiciable on this appeal.

Disposition

23. Thus there were errors of law in the High Court’s decision in the judicial review proceeding. Accordingly, the appeal to this court should be allowed and the High Court’s decision on 23 August 2023 should be quashed. Further, the decision made by the first defendants on 27 June 2022 should be quashed.
24. The ownership dispute might be more expeditiously determined by the Malaita Local Court than by another panel of Chiefs. The first respondents’ decision having been quashed, it would be open to the appellants and/or the second respondents to make an application to the Malaita Local Court to vary the order it made on 13 April 2021.

Muria P
Wilson JA
Gavara-Nanu JA