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Maeara v Loisio [2023] SBHC 60; HCSI-CC 471 of 2020 (30 June 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 471 of 2020

BETWEEN

JOHN ASHLEY MAEARA AND JONATHAN BUSUAKALO (DECEASED)
Claimants

AND:

PAUL LOISIO AND LEVI IDUMAE
First Defendants

AND:

ATTORNEY GENERAL
(Representing the Malaita Customary Land Appeal Court
Second Defendants

Date of Hearing: 2 June 2023
Date of Decision: 30 June 2023

Mr Ishmael Kako for the Claimants
Mr Jack To’ofilu for the First Defendant
Ms Constance Bule for the Second Defendant

RULING ON CHAPTER 15 CONFERENCE

Bird PJ:

1. The claimants in this case had filed a Category C claim under rule 2.2 of the Solomon Islands Courts (Civil Procedure) Rules 2008 on the 16^th September 2020 seeking mandatory orders from the second defendant. The primary order that is sought by the claimants is to compel the second defendant to produce a written ruling of its determination of their cross-appeal filed on the 24^th August 2014 and heard by the second defendant on 10^th June 2020. Interim restraining orders were made by the court on the 14^th April 2021 and perfected on the 15^th April 2021. Those interim orders were confirmed on the 17^th September 2021subsequent to an inter partes hearing.
2. In support of their claim the claimants filed the following sworn statements namely:
   1. sworn statement of John Ashley Maeara filed on the 16^th September 2020;
   2. sworn statement of John Ashley Maeara filed on the 1^st April 2020;
   3. sworn statement of Henry Busuakalo filed on the 1^st April 2020; and
   4. additional sworn statement of Henry Busuakalo filed on the 2^nd August 2021;

The claimant also filed a reply to the defence of the first defendants on the 5^th April 2023.

3. On behalf of the first defendants, a defence to the Category C claim was filed on the 23^rd March 2023 and the sworn statement of Levi Idumae filed on the 8^th July 2021. At the time of the Chapter 15 Conference, the second defendant had neither filed any defence nor any sworn statement. The allegations contained in the Category C claim are levelled primarily against the second defendant but the second defendant did not take any active part to progress this matter to a Chapter 15 Conference. That attitude is unbecoming of the calibre of the office of the Attorney General. There was also no written submission, prepared and filed by Ms Bula of counsel for the Attorney General to assist the court in its determination.
4. The background to this case is as succinctly discussed by both counsel for the claimants and the first defendants in their respective written submissions. I need not repeat them in this ruling. The appropriate rule that is applicable to Chapter 15 Conference in contained in rules 15.3.17 and 15.3.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007. The rules provide:
   • r.15.3.17At the conference, the courts must consider the matters in rule 15.3.18
   • r. 15.3.18The court will not hear the claim unless it is satisfied that:
     1. the claimant had an arguable case; and
     2. the claimant is directly affected by the subject matter of the claim; and
     100. there has been no undue delay in making the claim; and
     4. there is no other remedy that resolves the matter fully and directly.
   • Before going into these issues, I wish to state on the outset that the first defendant admits that r.15.3.18 (b) and (c) are non-issues to this Chapter 15 Conference.

The claimants’ case

5. The case for the claimants is that the second defendant had purportedly heard their cross-appeal on the 1^st June 2023. The claimants complain that the second defendant never hereby dealt with their appeal on that day. Mr Kako of counsel for the Claimants stated in his submission that the first defendants had in a way admitted that issue in paragraph 18 and 19 of the sworn statement of Levi Idumae filed on the 8^th July 2021.
6. To assist me in my determination of the issues now before me, I will discuss the various court decisions between the claimants and the first defendants. The land in dispute was Leokwao-abu/Malanunu customary land situated at Central Kwara’ae, Malaita Province. The disputing parties were Jonathan Busuakalo (deceased) and John Ashley Maeara on the one hand and Paul Loisio and Levi Idumae on the other hand. On the 2^nd June 2014, the Malaita Local Court (MLC) held that both parties have equal rights over the disputed land. On the 23^rd July 2014 and being aggrieved with that decision, Paul Loisio and Levi Idumae appealed to the Malaita Customary land Appeal Court (MCLAC). Jonathan Busuakalo (deceased) and John Ashley Maeara were also aggrieved with the MLC decision and filed their appeal (undated) to the MCLAC. On the 7^th June 2016, the MCLAC heard the appeal of Paul Loisio and Levi Idumae and set aside the decision of the MLC dated 2^nd June 2014. They remitted the dispute between the parties to the Malaita Local Court to determine the ownership of Leokwao-abu/Malanunu customary land.
7. The Malaita Local Court sat and heard the dispute between the two parties on the 18^th September 2017. On the 26^th September 2017, the MLC referred the parties to chiefs and traditional leaders of the neighbouring tribes around the area to settle the dispute according to the custom history, migrations and establishments of the area. On the 27^th May 2019, Jonathan Busuakalo (deceased) and John Ashley Maeara filed an appeal against the decision of the MLC to the MCLAC. On the 11^th November 2019, the MCLAC heard the appeal and amongst other orders, awarded ownership of the disputed land to the appellants. The respondents, being the claimants to this case filed an appeal to this court in CC 690/19, on the basis that the appeal from the MLC to the MCLAC was filed out of time and was statute barred. On the 26^th August 2020 and perfected on the 27^th August 2020, a consent order was entered into between the appellant party and the respondent party. Paragraph 4 of the Consent Orders states, “the Malaita Local Court decision on 26^th September 2017 still stands.” The decision of the MLC dated 26^th September 2017 had referred the disputing parties to chiefs and traditional leaders of the neighbouring tribes around the area to settle the dispute according to the custom history, migrations and establishments of the area. That is the decision that stands between the disputing parties over the ownership of Leokwao-abu/Malanunu customary land to date.
8. Having summarised the relevant court decisions in this case, I will now turn my mind back to the requirements of rule 15.3.18 of the CPR. Mr Kako of counsel for the claimants says that his clients have an arguable case because he says there is evidence that the second defendant did not hear his clients appeal. It is further argued that the MCLAC did not make any written determination on his clients appeal.
9. Mr To’ofilu on the contrary argues that the claimants claim did not disclose an arguable case. He stated that the claimants did not allege or plead any error of law or procedure. He therefore submits that the claimants did not prove the requirement of rule 15.3.18 (a) of the CPR because they do not have an arguable case before this court.
10. Having noted submissions of the claimants and the first defendants and the content of paragraph 18 of the sworn statement of Levi Idumae filed on the 8^th July 2021, it would assist me to work out what had transpired before the second defendant on the 10^th June 2020. The evidence is that both parties to the cross-appeal attended before the second defendant court on that date. They were both advised by the second defendant that they will not deal with the claimants’ cross-appeal in CLAC Case No. 1 of 2014 because it was not relevant. The same issue had gone through the Malaita Local Courts, the Chiefs, Malaita Customary Land Appeal Court and the High Court. So in effect a decision was made by the second defendant on the 10^th June 2020 stating that the said appeal was not relevant. The very same dispute between the very same parties have gone through various court processes from the Local Court, the Chiefs, Customary Land Appeal Court and the High Court. As per paragraph 7 above, the MLC had determined the issue between the parties and referred them back to chiefs and traditional leaders of the neighbouring tribes around the area to settle the dispute according to the custom history, migrations and establishments of the area. The MLC decision that the claimants in this case had filed a cross-appeal against has already been set aside by the MCLAC on the 2^nd June 2014. With the MCLAC decision of the 2^nd June 2014, there is no longer any decision that could be dealt with by the court. For that reason, the second defendant had decided not to proceed with the hearing of the cross-appeal. The hearing will not in any way in my considered view serve any useful purpose to any of the disputing parties. The dispute had progressed to an extent alluded to in paragraph 18 of the sworn statement of Levi Idumae. In view of these discussions, I am able to hold that the claimants do not have an arguable case.
11. As to the third requirement of whether there are other remedies that could resolve the matter fully and directly, it is argued by the first defendants that there is another remedy available to the claimants. Mr Kako submitted that his clients claim is just to compel the second defendant to produce written records of their decision of the 10^th June 2020. They say that the second defendant have yet to make a written decision.
12. On the contrary it is argued by Mr To’ofilu that the first and foremost cause of action to be taken by the claimants was to file an appeal to this court pursuant to section 256 (3) of the Land & Titles Act (cap 133). They have failed to do that within the time required. So even if this matter is allowed to proceed after Chapter 15 Conference, what useful purpose would that serve is the pinning issue. The appeal period had lapsed.
13. Mr To’ofilu also referred to paragraphs 23 of the claimants claim filed on the 16^th September 2020 and paragraph 30 of the sworn statement of John Ashley Maeara also filed on the same date. He said the effect of those two paragraphs is that a decision was made by the second defendant on the 10^th June 2020 about the claimants cross-appeal.
14. To assist the court, Mr To’ofilu had cited cases before this court that dealt with the issue at hand. In those cases, the court have been very sceptical about filing of claims for judicial review by losing parties in the CLAC than to utilise their right of appeal under section 256 of the Land & Titles Act (cap 133). See the cases of Robert Tumulima v Attorney General and Anor- HC-SI CC517 of 2018 and Patrick Viti v William Bobo & Anor – HC- SI CC 705 of 2019. In the Tumulima case, the court was of the view that it was an abuse of the process of the court for losing parties to file claim for judicial review than to file an appeal under the provision of the Land & Titles Act.
15. Upon analysing, the arguments in support and against the requirement of r. 15.3.18 (c) and the case authorities cited, I am of the view that the claimants claim for judicial review and the orders sought therein are misconceived and is an abuse of the process of the court. It would have been different if an appeal is filed under section 256 of the Land & Titles Act and is pending, before a claim for judicial review is filed. The second defendant had ruled on the decision of the Local Court and had set it aside on the 11^th November 2019.
16. The nature and background of this case is the dispute of ownership over Leokwao-abu/Malanunu customary land between the claimants and first defendants. Even up to this court in CC 690/19, the dispute has not yet been resolved. The only court decision in respect of the dispute between these two disputing parties is the Local Court decision of the 26^th September 2017. That decision is still a valid decision between the parties and none of them have utilised that option to this day. Within the hierarchy of the land court system in this jurisdiction, land dispute cases are commenced before a certain House of Chiefs pursuant to section 12 (1) of the Local Courts Act (cap 19) for a custom settlement.
17. I can also say that the claimants should have filed an appeal against the said decision of the second defendant to this court but they never did. They waited until the 3 months limitation period to appeal under the Land & Titles Act (cap 133) had lapsed and then decided to file the judicial review claim on the 16^th September 2020. I must say that the claim for judicial review cannot and must not be seen to overtake the land court hierarchy in this jurisdiction.
18. Taking into account the above discussions, I am therefore of the view that the claimants claim for judicial review to compel the second defendant produce written decision of the claimants cross-appeal is the wrong process to pursue the dispute between the parties. The orders that they are seeking will not assist them in any way to pursue their claim of ownership over the disputed land. The only way forward for them is to utilise the provision of section 12 (1) of the Local Courts Act and refer the dispute to the House of Chiefs within the locality of the Leokwao-abu/Malanunu customary land. I can say that the claimants had not satisfied the court of the requirement of rule 15.3.18 (d) of the CPR.
19. In summary therefore, it is not disputed by the first defendants that r.15.3.18 (b) and (c) of the CPR are not disputed and those requirements are adequately satisfied by the claimants at this stage. The contentious issues are the requirements of r.15.3.18 (a) and (d) of the CPR. From my above analyses and discussion, I am not satisfied that the claimants have proved on the balance of probability that they have an arguable case. They also have not satisfied me that there is no other remedy available to them that can resolve the matter fully and directly. I hereby order that the judicial review claim filed on the 16^th September 2020 be struck out under 15.3.20 of the CPR. Consequently the ex-parte restraining orders dated 14^th April 2020 and perfected on 15^th April 2020 are hereby discharged. I also order cost against the claimants on the standard basis. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge