Kikolo v Viulu [2014] SBCA 9; SICOA-CAC 32 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona J.)
COURT FILE NUMBER:	Civil Appeal Case No. 32 of 2013 (On Appeal from High Court Civil Case No. 279 of 2010)
DATE OF HEARING:	28 APRIL 2014
DATE OF JUDGMENT:	9 MAY 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Sir Gordon Ward JA,
PARTIES:	Patterson Kikolo Appellant -V – Deslike Viulu 1st Respondent Selwyn Riumana 2ndRespondent
Advocates: Appellants: Respondent:	Mr. W. Togamae, W.K T. Lawyers Appellants Mr. M. Tagini, Global Lawyers Respondent
Key words	Copra Shed and Customary Land
EX TEMPORE/RESERVE:	RESERVED
ALLOWED/DISMISSED	Appeal Dismissed
PAGES	1- 6

JUDGMENT OF THE COURT

1. This is an appeal from a decision following trial in the High Court on 20 November 2013. It concerns the sale of a copra shed built originally by the Commodities Export Marketing Authority (CEMA) at Susubona Village, Isabel Province.
   
2. There is evidence before the Court that CEMA when terminating an agency agreement with the Appellant indicated an intention to sell the copra shed to its former agent. Although that actual sale did not take place, the same shed was bought by relatives of the 1st Respondent, that is to say, Samson and Susan Viulu.
   
3. Evidence of that sale is contained in the evidence of the Appellant. The Appellant says that when Samson and Susan bought the copra shed they did not do so in their own right but as representatives of their tribe, the Kefu tribe. He produced documents surrounding the sale and in particular a document from CEMA in which there is reference, after Samson and Susan's names, to being of Kefu tribe. There is further evidence of the Appellant that he proffered $10,000 in part payment of the sale price paid on behalf of the tribe to the 1st Respondents or their representative. That part payment was at first accepted and then returned. His evidence continues to suggest that the arrangement at first amicable was reneged upon by the 1st Respondents following a family quarrel.
   
4. It is a further submission of the Appellant that Samson and Susan could not have acted in their own right to purchase a building on customary land. His submission is that only a tribe can purchase buildings on customary land and that CEMA had dealt with the tribe and not individual members earlier
   
5. After the purchase from CEMA the 1st Respondent sold the copra shed to the 2nd Respondent. The copra shed having been purchased from CEMA for $20,000 the 1st respondent sold it on for $57,000 to the 2nd respondent.
   
6. There is evidence from the trial as to ownership of the land on which the copra shed is built. There is evidence of a finding of Chiefs that the customary land on which the copra shed is built belongs to the Pau Tribe of which the 2nd Respondent is a member. Significantly, there was nothing put before the trial judge to raise any issue about that decision of the Chiefs.
   
7. The trial judge heard from a number of witnesses and received a number of exhibits through the admission of sworn statements. Counsel in this appeal have confirmed that the documents relied on within the appeal book were in fact all properly before the trial judge in some way. It was one such exhibit that represents the decision of the Chiefs in favour of the 2nd Respondent over this land.
   
8. The claim as filed sought orders:-
   
   1. Permanently restraining the respondents from taking possession of the former CEMA building at Susubona
      
   2. General damages
      
   100. Costs.
        
9. The claim, after trial, was dismissed.
   
10. The grounds of appeal are:-
    
    1. The learned judge erred in law in determining that the second respondent is the customary owner of the Susubona land being where the CEMA building is, as it lacks jurisdiction to make such determination and such judgment is not done under the Local Courts Act
       
    2. The learned judge erred in law in determining that there was a valid contract of sale between CEMA and the first defendants for the sale of the shed
       
    100. The learned judge erred in law and fact in CEMA sold the shed not to Kefu tribe but to the first respondent or his family
         
    4. The learned judge erred in law and fact determining that there was no contract of sale between the Kefu tribe and CEMA
       
    5. The learned judge erred in law and fact in determining that the shed can be disposed of without the issue on ownership of customary land.
       
11. It is not clear from the judgment that the learned judge made any findings as to customary ownership. It is clear from the materials that there was evidence of a finding in respect of ownership of customary land from a decision of the chiefs exhibited in the evidence of the 2nd respondent. A trial judge in the High Court is entitled, in our view, to note such a decision and act upon it accordingly. If that trial judge makes a finding that is open to him on the evidence that a particular building falls within that customary land, he is not trespassing into the realm of customary ownership reserved for the Chiefs or the Local Court.
    
12. As to the second ground, it was the evidence of the Appellant himself that there was a sale between CEMA and the 1st Respondent or his family. The question is not that the sale took place between them but as to whether at the time of the sale they acted for themselves or as tribal representatives taking up an offer only available to the tribe. There was evidence on that point and it seems to us that a finding either way is open to the trial judge on the evidence. That point is better raised in the third ground of appeal.
    
13. In considering that third ground the learned trial judge considered the evidence before him and arrived at the conclusion that Samson and Susan Viulu acted in their own right and were entitled to act in their own right. He found that the letter from CEMA terminating the agency agreement with the Appellant indicated an intention to offer the building to the tribe and a further indication that an offer would follow but that in fact the offer never did follow. Nor did he find that the Appellant followed up himself when the offer did not arrive.
    
14. Ground four is simply ground three expressed in a different way. The trial judge found that Samson and Susan Viulu acted in their own right and not on behalf of their tribe and that, they were entitled to do so.
    
15. It is implicit in his findings that the trial judge found that the building to be situate on land belonging to the Pau Tribe by virtue of the finding of the Chiefs. The letter terminating the agency agreement and offering the copra shed to their agent makes no reference to ownership of the land where the copra shed stood. It is not clear whether the Appellant submits that implicit in that offer is that CEMA understood the building to be on the land of the Appellant. That is not stated in any of the materials put into evidence from CEMA by the Appellant. Nor is there an express finding of the trial judge that the copra shed is within the land held by the 1st respondent for his own tribe as part of the decision of the chiefs of 29 August 1997. That decision appears as Exhibit RS3 to the affidavit of the 2nd Respondent. From the exhibited minutes it is apparent that both the Pau tribe and the Kefu tribe attended that meeting, which included both the present Appellant and the present 2nd Respondent, the Appellant being part of the losing party.
    
16. It is of concern to this Court that there is nowhere to be found in the Appeal book any attempt at a transcript of the trial judge's notes or indeed many of the documents exhibited during the trial referred to in the reason for judgment or referred to in counsels' submissions. It is not clear why this is the case. Fortunately, those documents are all agreed to have been available to the judge and his hand written notes of evidence are within the High Court file. They should, though in our view, have formed a part of the Appeal Book. At this hearing counsel indicated their consent to this Court making reference to the handwritten notes of the judge should the same be necessary to determine this appeal.
    
17. We find that the learned trial judge did no more in this matter than make findings open to him on the evidence. We note in particular that there was no suggestion during the trial questioning the validity of the decision of the Chiefs declaring customary ownership of this land to the tribe of the 2nd Respondent.
    
18. During this appeal, counsel for the Appellant submits that ownership of Susubona Land remains a live issue, but there is no evidence of that either before this Court or before the trial court. A trial judge cannot be found to be at fault if matters are not brought to his attention during a trial, and this Court has not been asked to allow further evidence to be admitted. Absent material put before the trial judge indicating that the decision of the Chiefs is not an accepted decision it is only to be expected that the trial judge will act upon it.
    
19. Accepting as the Appellant must, given that he led no evidence of a continuing land dispute, that the only decision so far on land ownership is in favour of the 2nd Respondents' tribe then he has no right to ask for the 2nd respondent to be restrained from dealing with the land or the buildings on it. If anyone is to complain it may be the 2nd Respondent.
    
20. There is also the question which was never raised in the trial and cannot now be answered on this appeal as to whether payment to CEMA was in fact for improvements to the land rather than for the building itself. In any event given the quite proper finding of the trial judge that would not assist the Appellant.
    
21. In the event this appeal must be and is dismissed with costs of the appeal ordered to be paid by the Appellants, such costs to be agreed or taxed.
    

...........................
Goldsbrough JA
President of the Court of Appeal

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Williams JA
Member of the Court of Appeal

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Sir Ward JA
Member of the Court of Appeal