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Riumana v Manegere [2025] SBCA 8; SICOA-CAC 52 of 2023 (16 April 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. On 14 March 2023 the Appellant filed a claim in the High Court seeking the following orders:

“(1) A declaration order that pursuant to the Family declaration by descendants of Olivia Lessy dated 17^th July 2020 and Declaration and Resolution by Pau tribe members dated 1^st November 2020, the Defendant no longer has the right to act as a spokesperson for Pau tribe.

(1) A declaration order that pursuant to the Family declaration by descendants of Olivia Lessy dated 17^th July 2020 and Declaration and Resolution by Pau tribe members dated 1^st November 2020, the Pau tribe shall remain named as Pau tribe and shall not be named as Gasebou tribe.
(2) A declaration order that by virtue of the chief decision dated 29^th August 1997, High Court Civil Case No. 279 of 2010, SICOA CAC No. 32 of 2013, family declaration by descendants of Olivia Lessy dated 17^th July 2020 and declaration and Resolution by Pau tribe members dated 1^st November 2020, the Claimant was recognized as member of Pau tribe and is a member of Pau tribe and leader of Pau tribe;
(3) Costs.
(4) Such further or other relief as the Court thinks fit.”

2. The Respondent, as Defendant in the lower Court, brought an application for the proceedings to be dismissed pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [‘the Rules’]. The lower Court Judge granted that application. The Appellant has brought this appeal to challenge that ruling on the following grounds:
   • "1. The Judge erred in law and fact when holding that Court lacks the jurisdiction to deal with the issues in the claim or to grant the orders sought. The Judge erred on the basis that:
     • (i) the High Court has unlimited jurisdiction to heard and dealt with all the matters brought before it; and
     • (ii) the appointment of a spokesperson of a tribe and change name or naming of a tribe are not issues falling under the jurisdiction Chiefs or Local Court but tribal internal matters of a tribe, and the Pau tribe members have done that pursuant to Family Declaration of Olivia Lessy dated 17 July 2020 and Resolution by Pau tribe members dated 1 November 2020.
   • "2. The Judge erred in law and fact when holding at paragraph 8 of the Judgment:
   • “It is the case for the Claimant that the Defendant is not part of the Pau tribe and is not entitled to represent the Pau tribe pursuant to Family Declaration of Olivia Lessy dated 13 July 2020 and Resolution by Pau tribe members dated 1 November 2020.”
   • And when further holding at paragraph 10 of the Judgment:
   • “The main crux of the argument of the Claimant in this proceeding is through the Family declaration of Olivia Lessy dated 13 July 2020 and Declaration and Resolution by Pau tribe members dated 1 November 2020 that the Defendant had ceased to be a member of the Pau tribe...”
   • On the basis that:
     • (i) the Learned High Court Judge misstated the Appellant’s Claim and arguments in the High Court, since the Appellant have never raise, plead or submits such argument as the Respondent was not a member of Pau tribe or had ceased to be a member of the Pau tribe, and
     • (ii) the Respondent’s membership of Pau tribe is not an issue or subject of dispute in the Appellant’s claim in the High Court.
   • "3. The Judge erred in law and fact when holding the two Declarations relied upon by the Appellant are mere declarations and do not have the force in law to back them up, unless and until a chiefs or Local court makes a declaration and endorsed what is stated in the said declarations. The Judge erred on the basis that:
     • (i) the issue of a spokesperson of Pau tribe and change of name of Pau tribe in the two Declarations are tribal internal matters; and
     • (ii) that the Chiefs or Local Court lacks jurisdiction to determine and appoint the spokesperson of the Pau tribe and to change name of Pau tribe.
   • "4. The Judge erred in law and fact by failing to state the principle of law dealing with Applications for strike out and to apply such principle of law to the facts of the Appellant’s claim at the High Court.”

Facts

3. The Respondent has been a spokesman for the Pau tribe. The Appellant alleges that the family of Olivia Lessy have made a declaration on 17 July 2020 that the Respondent shall not be the spokesman for the Pau tribe and further that the name of the Pau tribe will remain Pau tribe and not Gasebou tribe. The Appellant further alleges that following the declaration on 17 July 2020 the Respondent no longer has the right to be spokesman for the Pau tribe nor to change the name of the tribe.
4. The Respondent appeared in person in this Court. His lawyer, who had appeared in the Court below and had filed submissions in this Court opposing the appeal, had died earlier this year. The Respondent advised the Court that he wished to rely on those submissions rather than engage a different lawyer. Mr To’ofilu for the Appellant also confirmed that he was content to rely on the submissions filed and material provided in the Appeal Book and Supplementary Appeal Book and asked the Court to decide the appeal on the basis of the material filed.

Ground 1

5. The Appellant submitted the Judge was wrong to find that the Court lacked jurisdiction to deal with the issues in the claim. Counsel relied on section 77(1) of the Constitution which provides:
   • “77.-(1) There shall be a High Court for Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or by Parliament.”
6. The Appellant then submitted that what was sought was declaratory relief based on the Family declaration and a resolution of the Pau tribe made on 1 November 2020. He further submitted that being a spokesman of a tribe is different from being a chief of a tribe and asserted that the appointment and revocation of the members of a tribe is usually made upon consensus of the member of the tribe.
7. Mr To’ofilu did not put any authority before us other than relying on section 77 of the Constitution. Section 77(1) does not mean that the processes and Courts established in Solomon Islands for hearing disputes can be ignored. To commence a claim in the High Court for is clearly a claim in custom, would potentially undermine the rights of appeal and deprive this Court of the benefit of reviewing the reasoning in the courts of custom.
8. The Respondent has referred to Gandley Simbe v Eagon Resources and others [1999] SBCA 9 where this Court said at paragraph 20 and 21:
   • 20. Legislative power to exclude jurisdiction. It may be doubted whether, properly interpreted, s.77 (1) of the Constitution was designed to have quite such an impregnable character as the plaintiff’s submission suggests. Provisions in the form of s.77 (1) are a common method of investing a superior court with the general jurisdiction of the courts at Westminister. It would be surprising (and certainly inconvenient) if, as a result, the Parliament of Solomon Islands was, without first amending the Constitution, permanently precluded from legislating to devolve any aspect of that jurisdiction to some other court, or tribunal, and of doing so exclusively of the jurisdiction of the High Court. When regard is had to s.75 (1) of the Constitution, there is even less reason for reaching such a conclusion in relation to the provisions of s.231 (1). Section 75(1) provides:
     • “(1) Parliament shall make provision for the application of laws, including customary laws.”
   • That s.231 (1) of the Land and Titles Act is, within the meaning of Con. s.75 (1), a provision for the application of customary laws cannot be doubted. It is true that it was in the first instance not made by Parliament but was originally part of an Ordinance passed before the Constitution was adopted on independence in 1978. Clause 5(1) of the Solomon Islands Independence Order 1978, to which the Constitutions scheduled, expressly provides, however, that existing laws are to have effect on and after independence “as if they had been made in pursuance of the Constitution...” Since independence, the Land and Titles Ordinance has been redesignated an Act of Solomon Islands, and Parliament has more than once recognised it as such in the course of subsequently amending it. In that way, it may properly be considered a provision made by Parliament for the application of customary laws.
   • 21. Legislative power over customary laws. In addition, s.75 (1) of the Constitution embodies a grant to Parliament of an independent head of legislative power. The power is specific as to subject matter (“application of ... customary laws”) and is mandatory in its terms. There is therefore no rational basis for construing it as limited by or subsidiary to, or for otherwise according constitutional primacy to, the provisions of Con. s.77 (1). In addition, however, Mr. Watt’s submission fails to take account of the express terms of s.76 of the Constitution, which provides:
     • “76. Until Parliament makes other provision under the preceding section, the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in Solomon Islands – (c) of customary law; ...”.
   • For present purposes, the relevant provision of Schedule 3 is c1.3:
     • “3. – (1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.
     • (2) The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.
     • (3) An Act of Parliament may: -
     • Provide for the proof and pleading of customary law for any purpose;
     • Regulate the manner in which or the purposes for which customary law may be recognised; and
     • Provide for the resolution of conflicts of customary law.”
   • Schedule 3 and its provisions form part of the Constitution and are equal in status to other provisions in it. In providing that a local court is, subject to ss.8E, 8E and 8F of the Local Courts Act, to have exclusive jurisdiction in civil proceedings arising in connection with customary land, s.231(1) of the Land and Titles Act does no more than provide for or regulate, within the meaning of c1.3(3) of Schedule 3, the proof or the manner in which, and the purpose for which, customary law is in this particular to be recognised, and the resolution of conflicts of customary law provided for. There is therefore no justification for regarding s.231 (1) as being in conflict with s.77 (1) of the Constitution and invalid.
9. Although the Court was there considering section 231 of the Land and Titles Act, the principle remains the same. Issues of custom should be dealt with in the Courts of custom and not brought straight to the High Court. To allow otherwise would undermine the Court structure.
10. In Rini v Silas [2016] SBCA 3 this Court discussed s77(1) of the Constitution then said:
    • “This is subject to section 75 which provides that Parliament shall make provision for the application of laws including customary laws and to section 76 that, until Parliament makes other provision, the provision of Schedule 3 determine the operation of customary law.
    • Provisions to this effect are found in sections 254(1) and 255(4) of the Land and Titles Act:
      • “254(1) A local court shall, subject to the provisions of this section, sections 12,13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than-
      • (i) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and
      • (ii) any matter or proceeding involving the determination of whether any land is or is not customary land.
      • 255(4) A customary land appeal court shall have and may exercise all the powers of a local court.”

The issue, as was recognised by the judge in the present case, is over the ownership of customary land which can only be determined by the local court. However, section 84(1) of the Constitution gives the High Court jurisdiction “to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.” This does not give the High Court unlimited power to intrude on the lower court’s jurisdiction. It is sometimes described as giving the High Court an aiding supervision. Where there is evidence that the courts are not being administered in a manner which provides the proper standard of justice, it may intervene by its power to order injunctive relief.

As we have explained in the appeal this session of Attorney General v Solomon Maui and another, Civil Appeal No 24 of 2015, whilst section 77(1) gives the High Court original jurisdiction, it does not extend to unlimited rights to impose remedies in other courts. If it is to have such power in respect of other courts, it can only be prescribed by statute. The limit on its power and the reason for any such interference is found in section 84(1) namely that it may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is being duly administered by any such court. Section 77 goes to jurisdiction not to remedies and so it does not give the High Court power to make any orders which intrude on the exclusive jurisdiction of the lower court to determine issues of customary land.”

11. The Court referred to section 254 of the Land and Titles Act which provides that subject to sections 12, 13 and 14 of the Local Courts Act the Local Court has exclusive jurisdiction in all matters and proceedings of a civil nature affecting customary land. That is subject to two exceptions not relevant to these proceedings.
12. The appointment of a spokesman of a tribe is likely to affect customary land. Even so section 8 of the Local Courts Act extends civil jurisdiction to the Local Court.
13. We are satisfied that the issues arising from the claim should properly have been heard in the Local Court before it was brought to the High Court. This conclusion is consistent with the High Court decisions placed before us being Halu and others v JP Enterprises Ltd Unreported HCCN 163 of 2003, 21 August 2003. Horoto and another v Poikera House of Chiefs Unreported HCCN 40 of 2011, 8 November 2011 and Kombaka v Batava House of Chiefs. Unreported HCCN 446 of 2011, 16 July 2011. We are satisfied that Ground 1 must be dismissed.

Ground 2

14. The Appellant alleges that the learned Judge misrepresented the Appellant’s case by asserting the Respondent was not part of Pau tribe. Counsel submitted that the Appellant has never raised, pleaded nor submitted that the Respondent was not a member of Pau tribe or had ceased to be a member of Pau tribe. He says further that the Respondent’s membership of the Pau tribe is not an issue or subject of dispute in the Appellant’s claim in the High Court.
15. However, paragraph 4 of the Statement of Case in the Claim reads as follows:
    • “The Defendant was never part of Pau tribe but was an associate of Kefu tribe which have lost Susubona customary land to the Claimant and his Pau tribe...”
16. That is a complete answer to this appeal point. Whether that assertion has been modified or not in paragraphs 5 to 10 of the Statement of Case is not known as they have not been included in the Appeal Book. We must decide the issue on the material placed before us. We remind counsel of the importance of the duties of counsel to the Court. What was submitted is the opposite of what was set out in the Claim. Ground 2 is dismissed.

Ground 3

17. In support of this ground Counsel for the Appellant asserts that the Local Court does not have jurisdiction to determine and appoint the spokesperson of Pau tribe. This has been put forward to challenge what was said by the learned Judge that declarations are mere declarations and do not have the force of law unless and until a chiefs’ decision or Local Court makes a declaration.
18. What the Judge was clearly addressing was that if in custom a spokesperson is appointed and that appointment is dispute then the place to resolve that dispute is before the chiefs or the Local Court.
19. Counsel however submitted that section 11 of the Local Court Act defined the word ‘dispute’ as ‘a customary land dispute’. As a result counsel submitted that based on that definition the Local Court did not have jurisdiction to deal with the issue of spokesman of a tribe. He submitted further that the Local Court does not have jurisdiction to endorse a declaration made in relation to the spokesperson of the tribe. At paragraph 30 of counsel’s submission, counsel asserted that the Local Court only has jurisdiction to deal with customary land disputes.
20. The submission is inconsistent with section 8 of the Local Court Act and ignores the first line of section 11 of the Local Courts Act which before setting out the definitions relied on by Counsel provides:
    • For the purpose of sections 12, 13 and 14 the expression ....
21. It follows that the definition of dispute relied on by Counsel is limited to interpreting Sections 12, 13 and 14 of the Local Courts Act. It does not apply to disputes brought in reliance on section 8 of the Local Courts Act which gives jurisdiction to determine civil disputes. Ground 3 must be dismissed.

Ground 4

22. The Appellant submitted that the judge failed to state and apply the relevant principle of law dealing with striking out applications. Counsel has referred to Sa’oghatoga v Mugaba Atoll Resource Co [2015] SBCA 4.
23. The judge expressly set out the basis for the application setting out rule 9.75 in full. It is clear that the power to strike out contains three alternative bases for a claim to be struck out. Rule 9.75 provides as follows:
    • 9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
      • (a) the proceedings are frivolous or vexatious; or
      • (b) no reasonable cause of action is disclosed; or
      • (c) the proceedings are an abuse of the process of the court;
    • the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.
24. It is clear from the discussion in the ruling in the court below that the learned judge did not come to her decision on the basis of either 9.75(a) or (b). All the discussion concerned paragraph (c). Sa’oghatoga v Mugaba was concerned with paragraph (b) – whether a reasonable cause of action is disclosed. The discussion in the judgment in the Court below was not concerned with that issue. As such Sa’oghatoga v Mugaba is of no assistance to the Court in considering paragraph (c).
25. In addition to the judge’s finding that the claim had been brought in the wrong venue, there was evidence that the High Court had previously referred a dispute between the parties to the Local Court as long ago as 2020. If other proceedings concerning the parties was before the Local Court when the issue could and should be examined then to commence fresh proceedings in the High Court would be an abuse of process.
26. While it would have been helpful for the learned judge to pronounce that the proceedings were an abusive of process, her findings could have had no other conclusion. In these circumstances ground 4 must be dismissed.

Orders

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the Respondent, if not agreed to be taxed.

Muria (P)
Gavara-Nanu (JA)
Lawry (JA)