HIGH COURT OF THE SOLOMON ISLANDS

Civil Case Number 20 of 2000

John Osiramo

v

Mezach Aeounia

Date of Hearing: 5 November 2005
Date of Judgment: 28 February 2006

Bridge Lawyers for the Plaintiff
Public Solicitor (Mrs M. Lidimane) for the Defendant

Palmer CJ.: There are two applications before this court for determination. The first one is a Summons of the Defendant filed 12 July 2005 seeking orders to have the injunctive order of the court dated 26 January 2000 and 17 May 2000 set aside on the grounds that the issues relating to the determination of the common boundary between the parties had been finally determined. The second application is a Notice of Motion of the Plaintiff filed 31st August 2005 seeking the following orders:

1.	A declaration that the sitting and the decision of the Aimela House of Chiefs made on 3rd March 2005 in respect of the boundaries between Augiria and Arabala Kwarulilia lands in Central Kwara’ae, Malaita Province, were in contravention of the provisions of sections 11 to 12 of the Local Court Act and are void and of no effect;

2.	An order that the parties herein submit to the jurisdiction of the Rade Kwai House of Chiefs or such other committee of traditional leaders as may be agreed to by the parties herein;

3.	Failing agreement on which the committee of chiefs should hear their boundaries dispute, the parties hereto or any of them to be at liberty to refer the dispute to the Malaita Local Court. 

The brief facts.

On 26 January 2000 the Plaintiff obtained interim orders inter alia for the ANZ Bank Account No. 4076404 in the name of Augiria Development Fund to be frozen at a monetary limit of $40,000.00. In an inter partes hearing on 16 May 2000, the court allowed those orders to continue pending determination of the outstanding issue between the parties. The outstanding issue related to the common boundary between the parties; a dispute which could only be resolved in the appropriate land dispute resolution forums provided for under the Local Courts Act. 

The Plaintiff had reported a land dispute case to both the Rade Kwai Council of Chiefs and the Aimela Council of Chiefs. He only paid hearing fees to the Rade Kwai Council of Chiefs but not the Aimela Council of Chiefs. He later stated that he was not sure of the competence of the Aimela Council of Chiefs to hear the land dispute. He also seems to be saying that he objected to the hearing of the dispute by that Council of Chiefs. They nevertheless convened a hearing date on 1st – 3rd March 2005 and invited both parties to attend. Both parties it seems attended. That Chief’s Council made a decision in favour of the Defendant’s party. One of the members of that Chief’s Council Robert Buai in his affidavit filed 3rd October 2005 disputes the version of the Plaintiff. He says that the Plaintiff did not at any time object to the proceedings on the basis that he did not know the member of the Chief’s Panel or that they did not know custom.

The Plaintiff’s Notice of Motion

The orders sought in the Plaintiff’s Notice of Motion respectfully are misconceived. Paragraph (1) of the said Notice of Motion seeking a declaration to have the decision of the sitting and the decision of the Aimela House of Chiefs made on 3rd March 2005 in respect of the boundaries between Augiria and Arabala Kwarulilia lands in Central Kwara’ae, Malaita Province, were in contravention of the provisions of sections 11 to 12 of the Local Court Act and are void and of no effect, cannot be granted for the following reason. The relief sought to have the decision of the Aimela House of Chiefs declared null and void or in breach of the provisions of the Local Court Act cannot be done by interlocutory motion. What is sought is a relief which normally should be sought by way of writ of certiorari under Order 61 of the High Court (Civil Procedure) Rules, 1964 ("the Rules") or by originating process under Order 58 of the Rules. The relief sought should have been commenced by originating process. The relief sought in this case in contrast is basically that of damages for trespass. In order to prove trespass however, the Plaintiff has to establish ownership. This is where the dispute over boundary arises. Unfortunately for the Plaintiff, the Defendant now has a decision by the Chiefs in his favour and unless it is overturned it is a valid and binding decision. 

The order sought in paragraph (2) that the parties submit to the jurisdiction of the Rade Kwai House of Chiefs or such other committee of traditional leaders as may be agreed to by the parties herein cannot be granted by this court also. It is not for this court to make such direction. It is already a requirement imposed by legislation. It is for the parties to take up the matter before the Chiefs; it is for the parties to attempt all traditional means of solving the dispute. The crucial ingredient in all these is consensus. If all else fails and the aggrieved party wishes to pursue his claim further, then the only alternative available is to have the matter referred to the Local Court. That does not require any direction or orders from this court. It is for the parties themselves to attend to their case or dispute. 

What has happened in this case is that the Aimela House of Chiefs have sat and made decision on the boundary dispute. Unless a referral is made to the Local Court under section 12(2) and (3) of the Local Court Act, the Defendant and his party are entitled to rely on that decision as binding on the parties. If the Plaintiff wishes to have that decision quashed or declared null and void he can proceed either by Writ of Certiorari under Order 61 or by Originating Process under Order 58 of the Rules.

Summons to set aside injunctive orders of 26 January and 17 May 2000.

The basis on which this Summons has been filed and relief sought is the existence of the Aimela House of Chiefs decision of 3rd March 2005 in respect of the boundaries between Augiria and Arabala Kwarulilia lands in Central Kwara’ae, Malaita Province. There is no dispute regarding the authority of that body; though in terms of jurisdiction the Plaintiff takes issue. That however is a matter for the parties to sort out themselves and agree upon as to which chief’s council/committee convenes to hear their dispute. In this instance the affidavit evidence discloses that the Plaintiff initially agreed to have the Aimela House of Chiefs deal with their dispute. He is therefore bound by their decision even if he might later disagree on its composition.

Decision

I am satisfied the Defendant is entitled to have the orders of 26 January and 17 May 2000 set aside in view of the decision that it has in its favour. However, to be fair to the Plaintiff he should be given an opportunity to decide whether he wants to make a referral now to the Local Court under section 12(2) and (3) of the Local Court Act or not. I will grant the order to have the injunctive orders set aside but suspended for 28 days to allow the Plaintiff inter alia time to refer the dispute to the Local Court. If he does not do that or takes any other action, the order of suspense will lapse and the orders of this court will take effect immediately thereafter.

Orders of the Court:

1.	Dismiss Notice of Motion of the Plaintiff.
2.	Grant orders to have the injunctive orders of 26 January and 17 May 2000 set aside but suspended for 28 days. If no further action is taken, the injunctive orders shall become discharged thereafter.
3.	The Defendant to have his costs in this application.

The court.