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Espange v Wore [2020] SBHC 59; HCSI-CC 47 of 2020 (16 July 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 47 of 2020

BETWEEN

JOHN ESPANGE AND MARIANO MELE
(Representing Kakau Roha/Gota Tribe replacing Siriako Usa (deceased))
Appellant

AND:

ISHMAEL WORE
(Resenting Kakau Roha clan replacing Onesimo Reinunu (deceased))
Respondent

Date of Hearing: 8 June 2020
Date of Ruling: 16 July 2020

Mr. G Suri for the Respondent
No one for the Appellant

RULING ON APPLICATION TO SRTIKE OUT APPEAL

Faukona PJ: This is an appeal by the Appellants filed on 5^th February 2020, against the determination of the Guadalcanal Customary Land Appeal Court (GCLAC) delivered on 11^th and 12^th of November 2019. The appeal was filed without any sworn statement filed in support of it. Orders were made on 19^th March 2020 for the Appellants to file sworn statement and served by 9^th April 2020. The sworn statement was filed and served upon the Respondent on 8^th June 2020 the day of hearing of this application, almost 2 months late.

2. The notice of appeal contains two sets of grounds. One concerns whether the Guadalcanal Local Court (GLC) was instructed to exercise its jurisdiction to hear the ownership issue of Ravuneha and Honiata customary lands. As such a full hearing would have been called for. Another issue is more a less preliminary in nature and concerns allegation that one Local Court Justice Mr. Pocho was identified with in the vicinity of residence of the Respondent on 5^th November 2015 before judgment, therefore prompted the likelihood of bias.
3. This application is to strike out the notice of appeal based on grounds that the parties to the appeal were not named as parties in the proceeding before the GCLAC hence circumvents S.12 and S.13 of the Local Court Act, and is an abuse of process.
4. Another point raised is that the Appellants are usurping the name of the tribe of Mr Onesimo Reinunu. The question whether the Appellants or the clan of Mr. Reinunu is true Kakau Roha was not fully investigated by any lower land tribunals.
5. That the Appellants have no legal standing to lodge the notice of Appeal.
6. I noted the requirements under the rules to file a sworn statement in support of the notice of appeal. This was not complied with fully. The sworn statement in fact was filed 2 months late. The content of the sworn statement was a mere clarification of why the names of the two Appellants did not appear as parties in the GCLAC.

Observation and analysis.

7. This is a long outstanding customary-land dispute between Mr. Siriako Usa (deceased) and Mr. Kasiano who appeared on behalf of Kakau Gota and Laukuli sub-tribes and Mr. Onesimo Reinunu (deceased) who represented Kakau Roha clan. The lands in dispute are Ravuneha and Honiata customary lands.
8. On 28^th July 2015, this Court made orders for the dispute to be referred to the Guadalcanal Local Court differently constituted to rehear the dispute. The orders were made under a claim for judicial review instituted by Mr. Onesimo Reinunu.
9. In fact the orders were directions that the previous referral statement to the Local Court, as a statement of case, was to hear the customary land dispute and to hear the preliminary points as expressly stated in the referral statement. By making reference to the previous statement was merely to open and accept the full jurisdiction of the Local Court hearing a land dispute.
10. If the Local Court assumes jurisdiction to resolve a land dispute, impliedly we are not talking about the constitution of the court and preliminary matters alone, but the issue of ownership as well. If we confine to one part, and leave out the major issue, for sure we will drag the case for years.
11. If the Chiefs had determined the issue of ownership, any referral to the Local Court must include that issue together with any preliminary matters. Without that would be a waste of time and would not benefit the parties at all.
12. If the referral was successful which confine to preliminary matters only, then the dispute will definitely refer back to the Chiefs to recommence the case again? That would be time consuming and unprecedented. To my perspective view, the case is not properly managed and had been driven backward and forward. By passing on time the original named representatives had demised along the way. This is exactly what happened here and must not be repeated. Now we have new named parties and spokespersons. This case must move forward not backward.
13. Local Court is a Court of first instance where all customary land disputes refer to for remedy. If there are allegations of relationship, social interactions which may disqualify a member it is a preliminary matters which must be dealt with, with the core issue of ownership. If we are intentionally to leave out the issue of ownership, to be litigated in the Local Court, then when are we coming back to address? That is bizza. If we take this line of approach then we are definitely dragging on the case for far too long.
14. I think the Local Court is quite right to outline the issues it has jurisdiction to deal with in a customary land dispute, before it can hear and finally determine the rightful party who owns the customary lands. Determining the preliminary issues does not determine the ownership issue which the Local Court is assigned under its jurisdiction according to the Local Court Act. To confine to preliminary matters alone will get nowhere. There will be no decision of the Court in respect to ownership of the land. To deviate from the core responsibility and jurisdiction of Local Court concerning customary land disputes, will assist no one but will continue to circulate without an end.
15. I noted the referral statement to the Local Court concerned preliminary matters only. I had already assured that because it was a customary land dispute the door to open Local Court hearing of the matter was already done; in addition to the ordinary jurisdiction of the Local Court in dealing with customary land dispute. And the Local Court had done so. In the case of Karovo Vs Sibisopere^[1] the court stated at p.13 para.4 that the CLAC controls its own procedures (see S. Kuku v N. Luna), including the right of parties to call witnesses before CLAC, is without dispute. The comments of Daly CJ in Temasuu v Taupongi (ibid) do provide useful guidelines on the manner of calling witnesses. They are however general comments, which should apply on a case by case basis. Likewise the Local Court can control its own procedures. It ought to be noted the Local Court has no jurisdiction over preliminary matters, but of course circumstances may allow them to deal with. The Local Court jurisdiction as vested by the Local Court Act is to hear customary land disputes.
16. Also noted the original representatives and spoke persons for the parties had died. And new ones have to be formally appointed by the sub tribe and clans concern. The two Appellants in this appeal seem to be strangers, or may lack standing. However, one of the name Appellants, Mr. Espange was a witness in the Local Court on behalf of the Appellants. He appears to have standing or interest but must be appointed or chosen by the subtribe to be a spokesman. Evidence of proof by minutes of meeting of the sub-tribe will show general consensus for him to act as a spokesman representing his sub tribes. It may mean one or two persons.
17. Apparently, the prospect of this case falling into mess is eminent. Drastic steps which I now will take to restore will enhance a better progress of the case so that determination of ownership is finality.
18. The general tenor as perceived from the Appellants and their Counsels’ actions to prosecute the appeal is lagging; perhaps lack of interest to move the case forward or there may be other reasons which are not disclosed.
19. With the analysis, I am prepared to strike out the notice of appeal. That would mean the case is to be referred back to the GCLAC. However, since the GCLAC had deferred the matter be re-heard by the Guadalcanal Local Court I perceive that the following orders are relevant in the circumstances of this case to move the case forward.

Order:

1. Notice of Appeal filed by the Appellants on 5^th February 2020 is hereby struck out.
2. Order is hereby made that this case be referred back to GCLAC for rehearing of the appeal from the Local Court in full, by a differently constituted GCLAC.
3. Order is hereby quash the judgment of the Guadalcanal Customary Land Appeal Court (GCLAC) on 11^th and 12^th of November 2019, to pave the way for rehearing.
4. I uphold the Guadalcanal Local Court Judgment on 14^th June 2019.
5. The GCLAC differently constituted will re-hear the appeal within 4 months from the date of this ruling.
6. Order that GCLAC to hear all the issues determined by the Local Court including ownership issue. Conduct a survey of the land should the parties agreed to do so.
7. Spokespersons from both sides must have the approval of the subtribe or clan by way of minutes of meeting to proof their representation.
8. Parties must produce and agree on maps (sketch) showing boundaries, and other customary interests they have on the lands.
9. Cost incidental to this hearing is to be paid by the Appellants to the Respondent on 75% basis.

The Court.

^[1] Civil Case No. 133 of 2002 (5 May 2003).