Makoto v Jovere [1998] SBCA 7; CA-CAC 11 of 1996 (27 October 1998)

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NATURE OF JURISDICTION	Appeal from a Judgment of re High Court of Solomon Islands (Palmer .J.)
COURT FILE NO.	Civil Appeal Case No. 11 of 1996 (Appeal from High Court civil Case No. 138 of 1994)
DATE OF HEARING:	22nd July 1998
DATE OF DELIVERY OF JUDGMENT:	27th October 1998
THE COURT:	Kapi (Ag) P., Casey.J.A, Kabui .J.A.
PARTIES:	JACOB MAKOTO & NORTH NEW GEORGIA TIMBER CORPORATION V. LUXTON JOVERE
ADVOCATES
Appellant	J. Sullivan
Respondent	C. Ashley
KEYWORDS:	Jurisdiction of High Court (S 77(1) of the Constitution - custom Issues In connection with land - pleading and proof of custom - Lands & Title Act S 219
EX TEMPORE/RESERVED	Reserved
ALLOWED/DISMISSED	Allowed
PAGES:	1-15

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IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Civil Appeal No. 11 of 1996
(On Appeal from High Court Civil Case No. 138 of 1994)

Date and Place of Hearing: 22nd July 1998 in Honiara
Date of delivery of Judgment: 27th October 1998

The background to this appeal may be briefly described as follows. In 1979 the National Parliament passed the North New Georgia Timber Corporation Act 1979 (No.9 of 1979) (hereinafter referred to as the Act). This Act was passed to regulate the utilisation of timber resources in the North New Georgia area. The Act established the North New Georgia Timber Corporation (hereinafter referred to as the Second Appellant) and amongst many of its functions, it has the responsibility of making payments of profits to tribal chiefs for distribution to members of tribes who are entitled to receive such payments under the Act.

Luxton Jovere (hereinafter referred to as the Respondent filed a writ of summons in the High Court against Jacob Makoto (hereinafter referred to as the first Appellant) and the second appellant.

As against the first appellant, the respondent claims his share of the money wrongfully received from the second appellant for the years 1992, 1993 and 1994. The respondent claims that he is a member and tribal chief of a tribe who is entitled to receive payment under the Act in respect of Lupa Land.

As against the second appellant, the respondent claims damages for breach of statutory duty by failing to pay money to the respondent as a tribal chief who is entitled to receive money for distribution to members of his tribe under the provisions of the Act.

The first appellant filed a defence. In essence, he pleads that the respondent has no right to the money in question on the basis that he is not entitled to receive the money according to custom.

At the time of filing his defence, the first appellant filed a summons for the following directions:

“1. That the land dispute on ownership of the land area lying between the Mase and Hepa Rivers in North New Georgia be referred to the Local Court having jurisdiction of the area under the provisions of the Local Courts Act (Cap. 46) as amend. 1. That the Local Court having jurisdiction to decide on land dispute determine the following questions:-

(b) Is the Plaintiff entitled to live in accordance with custom in land areas lying between the Mase to Hepa Rivers in North New Georgia?”

The summons was heard by Palmer J. on the 19th October 1995 who gave his ruling on the 28th December 1995. After assessing the competing claims of the parties, he gave further directions as follows:

“1. In the absence of agreement DIRECT that further evidence be adduced to determine the following:

(v) all the above land areas marked clearly on plan or map where possible; in particular to show clearly whether the area from Mase, to Mezo is the same as Lot 4 of LR. 731.

2. In the event that the land area from Mase to Mezo is not the same as Lot 4 of LR. 731, then, the following questions in custom be referred to the Local Court for determination:

(i) Is the Plaintiff ‘tribal chief’ in the area of land from Maze to Hepa?

(ii) Is the Plaintiff a member of the land holding tribe (s) in the area from Mase to Hepa? If so, does he have the right to live in that area in accordance with custom?

3. The findings of the Local Court are to be forwarded to this Court for its final determination.”

It is clear from direction (1) that the trial judge wished to hear further evidence before certain customary questions could be referred to the Local Court for determination. This referral was dependent upon the finding set out in direction (1) (v).

Pursuant to the directions for further evidence, Mr. Kama solicitor for the appellants filed an affidavit sworn 17th January 1996. In this affidavit he deposed to research he carried out in the office of Commissioner for Lands and annexed copies of relevant documents relating to the land in question. He concluded from his research that:

“the land areas Mase to Mezo is between the Mase and Barora Rivers, and it is clear that the land areas from Mase to Mezo which is at the mouth of the Barora River is not the same as the land area of Lot 4 LR731 as shown in the plan. It is smaller in size.”

Mr. Campbell, solicitor for the respondent also filed an affidavit sworn on the 15th March 1996. He deposed that he carried out the same research in the office of Commissioner for Lands and the Archives and set out the results of his findings. In respect of direction (1) (v), he disagree with Mr. Kama and sought to set out what he found to be the real position and urged the trial judge not to refer the matter to the Local Court.

In his affidavit Mr. Campbell went further and urged the trial judge to actually deal with the substantial issues raised in the cause of action, namely, that the respondent is a tribal chief and is entitled to receive payments under the Act in respect of Lupa Land and that the second appellant breached his statutory duty by not making payments to the respondent under the Act.

There is no record of what the trial judge did when he resumed to consider these two affidavits. The only source of information from which we can determine what may have happened is the reasons for decision of the trial judge dated 14th August 1996. The reasons bear the date of hearing as 24th June 1996. Counsel must have appeared and made further submissions on the summons for directions on this date and proceeded to deal with the substantive merits of the claim in the statement of claim. This is apparent from the following passage in the judgment:

“The parties have now made final submissions and this, is the judgment of the Court in respect of the summons of the defendant filed on 12 September 1995 on one hand, and the claim on the Plaintiff on the other hand.”

In respect of the merits of the claim, the Court found that member of a tribe having the right to live in an area named in the First Schedule is entitled to receive money as stipulated under Third Schedule Part I paragraph (1) and (3) of the Act. The Court held that the respondent has a right to live in the Lupa area and as a tribal chief he is entitle to receive money under the Act.

In respect of breach of statutory duty under the Act the Court concluded that the second appellant failed in making payments of money to the respondent and ordered nominal damages of $100.00.

“1. The learned trial judge erred in deciding matters in custom without any evidence to support his findings of facts.

(2) In, deciding on the question of right of the parties to live in Lupa Land from Mase to Hepa the learned Judge failed to discharge his judicial duty to direct that evidence in custom be properly obtained before trial on the substantial issues in the pleadings.

(3) The learned trial judge having failed to hear evidence in custom on the rights of the parties to live in land areas from Mase to Hepa in Lupa decided on the question on the distribution of net profits without any evidence in support of his findings.

(4) The learned judge erred in his findings of facts and law in holding that the Phillip’s Commission Report is final in that it has never been over-turned, challenged or disputed when numerous land disputes, land acquisition and Commission Inquiry proceedings had since been made to determine the rights and interests of people living in land areas, called Lupa and particularly within Mase in Lupa.

(5) The learned judge had erred in awarding damages all costs against the second defendant/Second Appellant without any evidence of breach of statutory duty alleged by the Plaintiff against it in his statement.”

The decision dismissing the summons for direction as not been questioned on appeal. Therefore, we do not have to deal with issues related to the power of the High court to refer customary issues to the local Court.

The trial judge determined issues of customary law in connection with land and entitlement for payment of money under the Act. We note that the power of the High Court to decide such issues has not been questioned on this appeal.

The grounds of appeal raise the related issue of proof of custom in the High Court.

In dealing with this issue we need to deal with the jurisdiction of the High Court and the manner in which matters of custom may be raised and proved in the High Court. All these issues are related and should be considered together. Such matters are set out under the law. It is important to bear in mind that before Independence in 1978, these matters were governed by pre-Independence legislation. All laws must now be read subject to the Constitution as the superior law (see s 2).

Under Schedule 3.3 of the Constitution, customary law is given status to have effect as part of the law of Solomon Islands. Section 77 (1) of the Constitution gives the High Court “unlimited original jurisdiction to hear and determine any civil.... proceedings under any law ...” Such a grant of power includes proceedings based on custom. We bear in mind that section 231 (1) of the Lands and Titles Act gives exclusive jurisdiction to the Local Court in all matters and proceedings of a civil nature affecting or arising in connection with customary land. In so far as this provision gives exclusive jurisdiction to the Local Court, it has been held to be inconsistent to that extent with s 77 (1) of the Constitution (see Fugui &- Another v Solmac Construction Company Ltd &- Others (1982) SILR 100). The effect of the Constitution is that the High Court has concurrent jurisdiction with the Local Court on customary matters in connection with land.

In Alladyce Lumber Co Ltd &- Dovele Development Co lid v. Nelson Anjo (Judgment of Court of Appeal, Civil Appeal No. 8 of 1996, delivered on 15 April 1997), the Court concluded that the High Court does not have appellate jurisdiction to deal with issues of customary ownership of land from a decision of Customary Land Appeal Court under the Forest Resources and Timber Utilisation Act (Cap 90).

Order 21 rule 30 of the High Court Rules provides for pleading of customary issues:

“In all cases in which the party pleading relies upon a native law or custom, the native law or custom relied upon shall be stated in the pleading with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the line or group of persons to which it relates.”

As to the proof of custom, Schedule 3.3 (3) of the Constitution provides that an Act of Parliament may provide for it. In this respect section 219 (2) of Titles and Lands Act provides:

‘‘For purposes of ascertaining any current customary usage, a court required to determine a question in accordance therewith may refer to any books, treaties, reports (whether published or not), or other works of reference, and may accept any matter or thing stated therein as prima facie evidence of the usage in question unless and until the contrary is proved”

The words “unless and until the contrary is proved” relates to other evidence that may be given by people who are knowledgeable about the custom. The evidence given should be unbiased (see Sututaona v Hauanihou (1982) SILR 12).

The main complaint in the grounds of appeal (grounds 1- 3) is that no evidence of custom was given by any of the parties in accordance with law. Counsel for the appellants submits that the trial judge should have conducted a trial in the normal manner and allow parties to call evidence on customary issues in accordance with s 219 of the Lands and Titles Act. We agree with the submission that the trial judge fell into error when he failed to hear evidence in accordance with s 219 of the Lands and Titles Act. Research by counsel by itself is not admissible in evidence. The evidence should be called and admitted in the trial in accordance with law.

Ground 4 relates to the effect given to the Phillips Report 1925 by the trial judge. The trial judge in dealing with the report stated:

“First it must be pointed out that the judicial findings of the Phillips Commission Report have never been overturned, challenged or disputed. Over the years they have been repeatedly referred to as conclusive and authoritative findings.”

This passage may be construed to mean that the Report has not been proven to be wrong in relation to the matters contained in it. The trial judge does not refer to any particular decisions of tribunals in coming to this conclusion. The implication in this passage is that matters contained in Phillips Commission Report may be challenged and proven wrong. This is consistent with the correct effect to be given to such reports under s 219 of the Lands and Titles Act. We do not find any error in this regard.

Reference to such reports are to be distinguished from decisions of tribunals which have power to deal with customary issues. The effect of such decisions is different and their effect may be considered under the principles of res judicata and issue estoppel

The trial judge further concluded that distribution of profits under the Act is based on persons having a right to live in an area designated under the First Schedule to the Act.

The trial judge concluded that distribution of profits under the Act is based on, equal sharing of profits by all members of tribes according to land areas under First Schedule to the Act. The trial judge explained the practical effect of his interpretation in the following passage:

‘‘First although it is not dispute that within those five land areas there are or may be many other smaller areas of customary lands on their own, they may not be economically viable. And so by grouping together under one big land area, it is more likely that all the tribes in that area will be able to get a fairer share of the cake. On the other hand it is possible that there may be a tribe with a larger area within that prescribed block of land, and therefore may feel that it should be receiving more of the cake than the other tribes. Whilst this may be so, the Act does not seek to make such a distinction on the issue of distribution. This simply means that all the respective tribes within that prescribed land area are entitled to an equal share of the net profits of the Corporation for their area.”

This is a conclusion reached on the basis of a particular interpretation of the provisions of the Act. We do not have to consider the correctness of this view as it is not a ground of appeal raised before us. We simply note that a similar construction of the provisions of the Act was given by the High Court in Seijama v Luna (1982) SILR 25.

The upshot of our decision is that the appeal is allowed and we set aside the orders of the trial judge in respect of who is entitled to payment under custom. We remit this matter back to the High Court and further direct that the parties clearly and precisely plead their entitlement under custom in accordance with 021 r 30 of the High Court Rules and a trial conducted on the customary issues in accordance with law. All the other issues relating to the interpretation of the Act have already been determined and are not the subject of appeal.

Court of Appeal of Solomon Islands

Makoto v Jovere [1998] SBCA 7; CA-CAC 11 of 1996 (27 October 1998)