Hingiaharo v Wangisiuru [2021] SBCA 15; SICOA-CAC 20 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Hingiaharo v Wangisiuru
Citation:
Decision date:	1 February 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Kouhota J)
Court File Number(s):	20 of 2019
Parties:	Grace Hingiaharo, Waimahui Forest Resources Limited, Middle Island Investment PTY Limited v Fred Wangisiuru and Robert Hagapeheuna
Hearing date(s):	Paper Hearing October 2020 Sitting
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Duddley J for Appellant Kwaiga L for Respondent
Catchwords:	Obligation to cross examine on disputed evidence
Words and phrases:
Legislation cited:	Land and Titles Act S 254 [cap 133]
Cases cited:	Majoria v Jino [2007] SBCA 201, Brown v Dunne [ 1893] 6 R 67, Rizu v Viuru Land trust Board [2019] SBCA 11
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-11

JUDGMENT OF THE COURT

1. The appellants are appealing against the whole of the decision of Kouhota PJ, given on 7 May 2019, in a High Court Civil Case – HCSI-CC 406 of 2016. His Lordship awarded damages against them for allegedly trespassing into Maroi customary land (Maroi land) and carrying out illegal logging and timber milling operations.
2. The appellants seek orders that the decision be quashed and set aside and the matter be remitted to the High Court for further hearing. They also seek costs.
3. In the decision, the learned judge found that on the balance of probability the respondents had proven their claim of ownership over Maroi land. His Lordship also found that appellants neither had a timber right determination in their favour over Maroi land nor a valid timber felling license to carry out the logging and timber milling operations within Maroi land.
4. The appellants are members of a tribe called Kahuagoi which owns a customary land known as Waimahui (Waimahui land), which is situated in the East Makira Province. This is not in dispute.
5. The respondents are members of a tribe called Kapanitagi, they have always claimed ownership over Maroi land, which they claim is situated in East Bauro, Makira Province. The appellants have always disputed the respondents’ claim of ownership over Maroi land and have always denied that Maroi land ever existed. They claim the area of land which the respondents claim as Maroi land is within Waimahui land, thus is their land.
6. According to the records before the Court, litigation over Maroi land between the parties dates back to 1985 and 1986. This is the genesis of the respondents’ claim against the appellants in the above High Court Civil Case HCSI-CC 406 of 2016.
7. The dispute between the parties over Maroi land was litigated before Bauro Local Court in 1985 in Land Case No.1 of 1985, then in 1986 before Makira Ulawa Customary Land Appeal Court (MUCLAC) in 1986. The respondents claim the respective decisions from those hearings confirmed the appellant’s ownership over Waimahui land and identified Maroi land. The respondents claim that in each of those decisions it was found that Maroi land was separated from Waimahui land by a river. Thus, they claim Maroi land is different from Waimahui land.
8. The respondents’ claim is disputed by the appellants. The appellants claim the decisions of Bauro Local Court in 1985 and MUCLAC in 1986 confirmed their ownership of Maroi land.
9. In his decision, the learned primary judge also relied on the decision of MUCLAC given in June 2012, in which it was held that there was customary land known as Maroi which is situated – “outside the boundaries of Waimahui customary land”. The learned judge said the decision was confirmed by the decision of Bauro Council of Chiefs which was given on 30 May 2013. His Lordship when commenting on the latter decision said:
   • “The Chief’s (sic.) decision also came to the same conclusion that Maroi Customary land is not within Waimahui customary land. The defendants were represented at the chief’s (sic.) hearing by one Pio Tongia, who stated before the chief’s (sic.) hearing as follows, " ... I come to tell the chiefs that I was the owner of Waimahui land and the boundary of Maroi and Waimahui was at the Warigau stream. I and my children didn’t agree to get money from logs taken from Maroi land because the land belongs to the plaintiff, not ours. That is all I want to say”.
10. His Lordship then in conclusion said:
    • Having considered the materials before the court and the submission of counsel, I am satisfied that the claimants have proven their claim on the balance of probability. I give judgement for the claimants and grants (sic.) the relief sought. The defendants’ counterclaim is dismissed with cost (sic.) against the defendants to be taxed if not agreed. Damages for trespass and conversion to assess if not agreed". (Our underlining).
11. The dispute between the parties became litigious when the third appellant which is a timber company started carrying out logging and timber milling operations in the disputed area. This forced the parties to sign a Memorandum of Understanding (MOU) which his Lordship referred to in his judgment. In the MOU it was agreed that the respondents would challenge the appellants’ claim of ownership over Maroi land in the High Court, and the first appellant would challenge one of the Bauro Council of Chiefs decisions which went against the appellants. The above High Court Civil Case – HCSI No. 406 of 2016 was issued by the respondents pursuant to the MOU. The parties also agreed for the third appellant to conduct logging operations within the disputed area unhindered by any of them, especially the respondents.
12. One of the appellants’ main grounds of appeal is that ownership of Maroi land was resolved by the Local Court decision in 1985 and the decision of MUCLAC in 1986. Thus, the issue was res judicata and the learned judge erred in deciding on the same issue. It was also claimed that the issue of ownership over Maroi land has always been litigated by the same people or people who were privy to the people who were parties in previous litigations.
13. The appellants raised four grounds of appeal, which are reproduced below for ease of reference:
    1. That the judge erred in law and in fact when he considered in his ruling that res judicata does not apply to the proceedings and that the issue before the chief (sic.) in Makira Customary Land Appeal Court in 2016 was the boundary of Maroi customary land and not over previous proceedings which are over the ownership and boundary of Waimahui customary land. The learned judge failed to consider that within the Timber rights map of the appellants, the Maroi concession area is also included as well as in the maps and decisions of previous court proceedings for boundary determination in 1985 and 1986 where they had accepted that the boundary of Waimahui land extended to Waita river, in which the alleged Maroi customary land is included.
    2. The learned judge erred in law when he failed to consider that under the principle of res judicata, the Bauro Local Court in Land Case No. 1/85 and Makira Ulawa Customary Land Appeal Court are final judicial decisions pronounced by judicial tribunal having competent jurisdiction over the cause of the matter decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies or anyone claiming under those parties.
    3. The learned judge erred in law and facts (sic.) when he stated in his ruling that entering into a Memorandum of Understanding (MOU) with the claimants is an acknowledgement of the existence of Maroi customary land and ownership of the said land by the Respondents. The judge failed to consider that the MOU is just an understanding and does not give the respondents a right to ownership of Maroi customary land.
    4. That the judge erred in law and fact when he accepted the Bauro Council of Chiefs (sic.) decision, where the chiefs considered Pio Tongia to be the rightful person to represent the 1st Appellants in that chief hearing to proclaim that the "disputed place of Maroi land is outside the boundaries of Waimahui". The learned judge erred on (sic.) fact that during the Bauro Council of Chiefs (sic.) hearing, the First Appellant Grace Hingiaharo whom is the rightful owner of Waimahui land did not present at the said Chiefs (sic.) hearing. The First Appellant gave notice both in verbal and writing to the Bauro Council of Chiefs (sic.) Hearing that she would not attend the hearing as she just came out from labour and her father was terminally ill at that moment. However, the Bauro Council of Chiefs (sic.) Hearing continued despite her absence and objections. Pio Tongia had represented the Waimahui land without authorization of Grace Hingiaharo. Furthermore, the learned judge erred on the fact that Pio Tongia was with the Claimants (sic.) party during the Bauro Local Court Hearing in 1985 till now and had close connections with the opposing party of the Respondents. Therefore his reputation during the Bauro Council of Chief (sic.) would be misleading and frivolous for the learned judge to rely on.

The Judge erred in law in failure (sic.) to consider all the circumstances of this case on its own merits.

14. It was submitted by Mr Jose Dudley of counsel for the appellants that the learned primary judge erred in his finding that the respondents had on the balance of probability proven their claim of ownership over Maroi land. He argued that the issue of ownership over Maroi land having been decided already by the Bauro Local Court in Land Case No. 1 of 1985 and the MUCLAC in 1986, the issue was res judicata and the learned primary judge erred in deciding the same issue.
15. It was also submitted that the learned primary judge erred in finding that the MOU was an acknowledgement by the appellants of the existence of Maroi customary land and that it was owned by the respondents. Mr Dudley argued that the MOU was only an understanding not an acknowledgement of the Maroi customary land and its ownership by the respondents.
16. It was also argued that the decision of Bauro Council of Chiefs made in 2013, was framed because the decision was made only after hearing Pio Tongia who told the hearing that Maroi customary land was owned by the respondents. Pio Tongia represented the Waimahui landowners in that hearing. Mr Dudley argued that Pio Tongia did not represent the true Waimahui landowner namely, Grace Hingiaharo. It was also submitted that the 1985 and 1986 decisions of Bauro Local Land Court and MUCLAC were in favour of the father of the first appellant who was a party in the hearings.
17. It should be noted that Grace Hingiaharo was supposed to have attended that Bauro Council of Chiefs hearing in 2913 with Pio Tongia but failed to attend. She later, when denying the acknowledgement by Pio Tongia that the respondents owned the Maroi land, said she could not attend the hearing because she had just given birth.
18. The principal argument by the appellants is that Bauro Local Land Court hearing in 1985 and the 1986 MUCLAC hearing decided land boundaries and it was accepted in those hearings that the boundary of Waimahui customary land extended to Waita river, in which the alleged Maroi land was situated. So, the whole area of land, including the area in which Maroi was situated belonged to the appellants. Based on this argument, it was claimed by the appellants that ownership of Maroi land was a non-issue because it was already decided and disposed of by the above two decisions and was, therefore, res judicata. Heavy reliance was placed on Grace Hiangiaharo’s sworn statement.
19. It was argued that the 1986 MUCLAC decision binds the respondents because they were parties to that decision. It was further argued that the Bauro Council of Chiefs’ decision of 2013, could not overrule the 1986 MUCLAC decision. The 2013 decision of the Bauro Council of Chiefs was therefore null and void. Reliance was also placed on s.254 of the Land and Titles Act, Chapter 133, which provides that a decision of a Local Court on ownership of customary land is final and conclusive and “...shall not be questioned in any proceedings whatsoever save an appeal under section 256...”. In this regard, reliance was placed on Majoria v. Jino [2007] SBCA 201 CA-CAC 36 of 2006 (1 November 2007), in which the court held that a decision of the Local Court made in accordance with the Land and Titles Act is binding on the parties to a dispute regarding land ownership and such parties would be estopped from seeking different decisions on the same subject-matter. It was also argued that the MOU was merely to prevent the respondents from harassing the employees of the third appellant when carrying out logging operations. Mr Dudley argued that the learned primary judge failed to consider the case on the merits and disregarded the Bauro Council of Chiefs’ decision in the Local Court in 1985, and the MUCLAC decision in 1986.
20. One notable issue that Mr Dudley raised in his submissions was that the learned judge failed to consider the Timber Rights map produced by the appellants which showed that the Maroi concession area for boundary determination in 1985 and 1986 accepted that the boundary of Waimahui customary land extended to Waita river, in which the alleged Maroi customary land was located. Thus, confirming that Maroi land was always part of Waimahui land. Mr Dudley submitted that license No. A101039 was also for the same reason granted to the third appellant to fell logs within the Waimahui land covering the alleged Maroi land based on the map.
21. Mr Lazarus Kwaiga of counsel for the respondents, on the other hand, argued that the Bauro Council of Chiefs’ decision of 2013, related specifically to Maroi land boundaries. The hearing was purposely held to decide Maori land boundaries because of the logging operations being carried out in Maroi land which the respondents claim is theirs. Mr Kwaiga submitted that the issue there was the same as the issue which was decided by Bauro Local Land Court in 1985 and by the MUCLAC in 1986. He submitted that in all the Council of Chiefs hearings the issue was land boundaries of Waimahui and Maroi land.
22. We have considered it appropriate to discuss the paper submissions by counsel to give perspective to the decision of the learned primary judge which was made upon paper hearing. We have also highlighted aspects of the learned primary judge's decision to demonstrate facts which are seriously in dispute.
23. In deciding this appeal, we have noted that submissions by counsel and the decision of the learned primary judge were based on the sworn statements of the witnesses from both sides. Those witnesses were never cross-examined because they did not give oral testimony, which means the credibility of their evidence was not tested before the court below. This was in clear breach of the rule in Brown v. Dunne [1893] 6 R 67 (HL), which essentially stands for the proposition that evidence of a witness relating to certain facts cannot be challenged or criticized unless the witness is given the opportunity through cross-examination to explain those aspects of his evidence. Without such opportunity being given to the witness, it would be unfair for the opposing party to make and draw adverse comments and conclusions on the witnesses' evidence. It would also result in the Court not being able to properly decide the case on the merits. That was what happened before the learned primary judge.
24. We find that without the witnesses being cross-examined the learned primary judge could not make any findings of fact and thus apply the law and decide the case on its merits. We also find ourselves in the same position. As pointed out earlier, this case relies upon findings of fact.
25. In Rizu v Viuru Land Trust Board [2019] SBCA 11 this Court discussed the obligation to hear viva voce evidence where contested facts are alleged in filed statements. In that case, we pointed out:-
    • “Challenge through contradictory sworn statements does not provide the opportunity for the author of the statement to hear the challenge to their evidence in open court, nor for the opportunity to answer that challenge by responding to questions put to them. Similarly, by choosing not to call for cross-examination, counsel has equally chosen not to put matters to the author which, according to the rule in Browne v Dunne, which should be put. The common law rule in Browne v Dunn states that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examination. It is essentially a rule of fairness—that a witness must not be discredited without having had a chance to comment on or counter the discrediting information. It also gives the other party notice that its witness’ evidence will be contested and further corroboration may be required.”
26. This case could not fairly be heard without allowing the parties to cross-examine witnesses whose statements contained contradictory evidence. Where it is necessary to conduct a trial other than according to this principle, reasons should be given setting out why such a course is necessary.
27. It should also be possible, from the judgment itself, to identify what evidence was given and by whom, in addition to setting out what other material was presented to the court and admitted into evidence. That, in our view, can most conveniently appear in the preamble at the start of the judgment, after a short description of what the judgment is about, e.g. final hearing of the substantive matter. Unless it is clear what material was properly before the court, it is subsequently difficult, if not impossible, to ascertain whether the judge was correct in his or her findings.
28. In the circumstances, we allow the appeal. The decision of the court below is quashed and set aside. We remit the matter to the High Court to be further dealt with, including parties calling oral evidence. It may be that part of this case could be dealt with by asking the court to determine a preliminary question of law. That is a matter for the parties to consider before fixing a new trial date.
29. Regarding costs, we are of the view that the parties are also equally responsible for the way the trial was conducted. In our view, given that the facts were seriously in dispute oral evidence should have been called by both parties. In the circumstances, we order that the parties pay their own costs.
30. The orders of the court as follows:
    • (i) Appeal is allowed.
    • (ii) The decision of the primary judge given on 7 May 2019, in respect of High Court Civil Case - HCSI-CC 406 of 2016, is quashed and set aside.
    • (iii) The matter is remitted to the High Court to be further dealt with.
    • (iv) Parties to bear their own costs.
31. Orders accordingly.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member