Bako v Kolly [2014] SBCLAC 1; CLAC 36 of 2013 (24 April 2014)

IN THE ISABEL CUSTOMARY )
LAND APPEAL COURT

APP/Case No: 3/03 - CLAC No: 36 of 2013

Customary Land Appellant Jurisdictio:

IN THE MATTER OF: THE LAND AND TITLES ACT [CAP 133]

AND

THE LOCAL COURT ACT; CAP 19

IN THE MATTER OF:

GARANGA/KASERA CUSTOMARY LAND

BETWEEN:

JAMES BAKO
FRANCIS SESI
Appellants

AND

DERRICK KOLLY
JAMES MANEFORU
Respondents

JUDGMENT
Introduction

1. This is a customary land appeal made from a decision of the Isabel Local Court delivered on the 26th day of July 2013. On an application to strike out the decision as the court proceeding was conducted unprofessionally.
   
2. It is necessary briefly to set out the background history of this case. This land case is a referral matter from the High Court after judgment of judicial review made on the 26th of November 2010. From the recollection of events, this case has gone through a tortuous route where the Isabel Local Court takes the onus to presides and prove the ownership of the disputed land.
   
3. The Isabel Local Court (ILC) held in favour of Derrick KOLLY and James MANEFORU as the rightful owner of Garanga /Kasera customary land. Mr Kolly and Mr Maneforu were complainants or plaintiff in the local court proceeding, and are now the Respondents in this CLAC proceeding.
   
4. On that decision, Mr James BAKO and Francis SESI was aggrieved and filed their appeal to the ICLAC. Both Mr Bako and Mr SESI was the defendant in the local court proceeding, and are now Appellants in this CLAC proceeding. They have filed their appeal to the Isabel Customary Land Appeal Court (ICLAC) on the following grounds:
   

Grounds of Appeal

(i) The records of minutes of Isabel Local Court of 26 July 2013 do not reflect the true and real words said in court by our group. Minute's record contains distorted version of our group's submission in court thereby making the record as inaccurate.

(ii) The Isabel Local Court failed and erred in law to put in record vital submissions relating to ownership rights in Isabel custom thereby had neglected to consider them when it made its judgment,

(iii) The Isabel Local Court in its proceeding in July 2013 erred in custom when objected our plea for site inspection

(iv) Derreck Kolly, the complainant (ILC) bought mineral water bottles for the presiding justices during the court proceeding. In our view that is an act of prejudice that could have influenced the manner the decision was made,

(v) A member of our group unexpectedly had sighted a piece of paper with Derrick Kolly's name and mobile number, at Mrs Moira Dasipio's table in the mothers union rest house after the court ended and prior to its decision,

(vi) The hard copy of Isabel Local Court decision issued by court officials to our party bears no official seal or stamp to verify it as a legal and official document,

(vii) The Isabel Local Court failed to distinguish the relevancy and credibility of evidences tendered by complaints and their witnesses, and

(viii) The complainants have used and relied upon evidences by persons with dubious background, and the Isabel Local Court ( ILC) failed to check the integrity of these witnesses and the motive to testify for the complainant.

5. On ground one, the Appellants submits that the ILC failed to include and considered their history, genealogy as in the minutes. They further contended that the record of minutes of ILC of 26th July 2013 do not reflects the true and real words said in ILC proceeding. Their history and taboo site recorded in the ILC minutes does not reflect what they have presented in the ILC proceedings, thus, the record is inaccurate.
   
6. In responding to this ground of appeal, spokesperson for the Respondents submits that any record of minutes of the court does not necessarily needs to record word for words, or the exact words spoken by the parties in court. Thus, it is the duty of the court to received evidence from parties and summarises the central and valid points in issue. The minutes of the court are for the benefits of the court to deal with the issue before them.
   
7. After considering submissions from the appellants and the respondents, the court is of the view that this ground of appeal raised the question of law. This court has no jurisdiction to fully deliberate on issues pertaining elements of law, however, for the purpose of this judgment, the administrative accounts of the local court records have no error in them. In the record, both parties made submission orally and written accounts. Their genealogy, history, taboo site and evidences from witnesses are summarised and recorded. From that submission, the LC assessed and summarised the evidence and determined. This ground of appeal is dismissed.
   
8. Ground two; The Isabel Local Court (ILC) failed and erred in law to put in record vital submissions relating to ownership rights in Isabel custom, thereby had neglected to consider them when it made its judgment.
   
9. The appellant contended that their evidence in terms of elements of Isabel custom in relation to ownership of land has been omitted in the ILC minutes. The minutes of ILC says different thing from our original submission as of our history, genealogy, customary boundaries and taboo site.
   
10. In responding to this ground of appeal, the Respondents maintained their argument that this ground of appeal based on question of law. Only the High Court can deal with matters as to errors of law. Furthermore, the respondent submits that this ground of appeal is vague and ambiguous. It does not spell out what kind of ownership rights in Isabel custom was not considered by the ILC. It is submitted that the ILC has dispatched all the relevant evidence in terms of custom ownership of land according to Isabel custom, before they determined and decided on the case.
    
11. The jurisdiction of the local court is to deal with customary issues that would support claims of right of ownership of land. The most effective elements to be considered to prove such right of ownership are proving the history, genealogy, custom boundaries, taboo sites and so forth.
    
12. This court have gone through the records of the ILC on the court proceeding in question and satisfied that the record has no error in them. The question of what is significant to be asses and determined after adducing evidence is really a matter for the local court to assess the credibility of the evidence.
    
13. Briefly, in the record, the ILC judgment has mentioned all the ingredients of ownership submitted by the parties and come up with their final decision. Again, this is a question of law where this court cannot deal with to that extend. Therefore, ground two has no basis in it and be dismissed.
    
14. Appeal ground three. This is where the appellant claimed that the ILC refused to consider their request for site inspection during the local court proceeding.
    
15. The appellant had submitted that during the ILC proceeding on the 26th of July 2013, his party had formally requested the ILC for site inspection. However, it was not considered by the ILC, thus, determined based on customary boundaries, shrines, old burial grounds, sacrificial sites, treasure sites, geographical features and so forth.
    
16. On the other hand, spokesperson for the Respondent, Mr. Kolly strongly denied the claimed. He contested that it was his party (Respondent) who have requested to the ILC for site inspection and not the Appellants. He further submitted that they have respect the decision of the ILC to rely on evidence from the responsible House of Chief as the discretion of the court.
    
17. After considering submission from both parties in relation to this contention, the court is satisfied that this element is very crucial when comes to determination on ownership of land. Again, it is a discretionary obligation of the local court to call for survey or site visit for customary evidence such as taboo site, land boundaries, gravesite and so forth.
    
18. The record of the ICL shown, there were evidences from the Gao/Bugotu House of Chief that his panel has done the site inspection of the land in question. From that evidence, the ILC has considered that piece of evidence as genuine to warrant them not to call for site survey. The court is satisfied that this ground of appeal has no basis, and dismissed.
    
19. Appeal ground 4: The appellants have contended that during the ILC proceeding on the 26th July 2013, at Buala station, Mr Kolly (Respondent) bought mineral waters for the ILC justices.
    
20. The Respondent, Mr Kolly responded to this claim as in appeal ground 4 and denied being providing mineral waters for the ILC panel. In his oral submission, Mr Kolly confirmed his denial in his written submission saying that "not at any time before, during and after the ILC proceedings did I ever bought any mineral water for the presiding justices."
    
21. This ground of appeal raised the issue of biasness which is an element of law. The test of biasness was clearly applied in the case of Talasasa v Paia and others (1980-1981) SILR 93, where the court held that "in relation to bias it must be shown that a right minded person would consider there was a real likelihood of bias. On the facts this was not established.
    
22. As this court already mentioned on earlier grounds of appeal pertaining elements of law, only the High Court has the wide jurisdiction to hear any orders which erroneous in point of law. In those circumstances the ground of appeal pertains biasness is dismissed.
    
23. Appeal ground 5: The Appellants also contended that during the ILC proceeding held on 26th July 2013, a member of his group unexpectedly sighted a piece of paper with Derreck Kolly's name and mobile number at Mrs Moira DASIPIO's table in the mothers' union rest house.
    
24. The Appellants submitted that this incident has propagated much suspicious as to a possible connection between the ILC justice and the Respondent.
    
25. This ground of appeal also raised the question of biasness. There was no evidence to establish that a right minded person would consider there was a real likelihood of bias. The court is of the view that this ground of appeal has the same background as in ground four, therefore, be dismissed.
    
26. Appeal ground 6: The Appellants have submitted that the ILC failed to disallow certain witnesses who have been used as the complainant's witnesses in the Chief's determination on the land in question.
    
27. Mr Bako contended that allowing those Chief who involved in Chief's determination as complainant's witness in the local court is clearly demonstrating conflict of interest, biasness, unfairness and in justice.
    
28. After considering this contention, the court cannot repeat itself hear on issues that raised biasness, unfairness and injustice. They are matters for the High Court to deal with in terms of appeal to Customary Land Appeal Court. This appeal ground is dismissed.
    
29. Appeal ground 7: The appellants submitted that the hard copy of the decision of Isabel Local Court issued as official decision of the court to our party bears no official stamp to verify it as a legal and official document. Mr Bako stands for the appellants has further contended that receiving such document without official stamp has no bearing as the true document from the court.
    
30. Again, this ground of appeal has no bearing in terms of customary issues where this court has jurisdiction to determine over it. The record of the ILC clearly stated that the decision of the local court was publically declare in the presence of all parties. The contention is more on biasness, unfairness on administration of the court. The CLAC cannot determine on this ground of appeal and therefore, dismissed.
    
31. Ground of appeal 8 & 9: The Appellants contested that the ILC is wrong to allow and considered documents tendered by the complainant which almost all the documentary evidence are irrelevant, and they are not connected to the Garanga land which is the subject of the dispute. Being allowing person with dubious background to be witness is wrong in law.
    
32. The court is intending to discuss and determine ground 8 and 9 together as they raised similar issues. In these contentions, the court procedures in any court process are a matter for the court to decide which documents to allow and determined on it under the overall discretionary power of the court. The court is also has a discretionary power to assess the credibility and the relevancy of the evidence before the court. Again, the court can only determine according to evidences produced by parties through oral presentation, written submission in the process of adducing customary evidences.
    
33. In this case, the record of the ILC shows that the court had received evidences from both parties and through their assessment; they have come to their collective consideration based on evidences produced by both parties. There was no erred in all circumstances to show that the ILC has determined on evidence that is not relevant to the dispute. Both grounds of appeal are dismissed.
    

Conclusion

34. Base on the above findings, this court have enormously agrees that this appeal is dismissed and make the following orders.
    

Orders

1. Appeal No: 36 of 2013 is dismissed,
2. The Isabel Local Court decision delivered on the 26th day of July 2013, is upheld,
3. Held that the Posamongo Tribe is the rightful ownership on Garanga/Kasera customary land, and
4. We decline to make any order as to cost.
   

Right of appeal is extended.

Decision was verbally announced on 24th day of April 2014, at Buala court house.

Signed:

Johnson LEAMANA William MANEDAO Edward Stanford KOTI Culwick Vohia MANESARA Jim SEUIKA

President [ag] ...................................... Member ........................................ Member ........................................ Member ........................................ Secretary/member ..............................