Talasasa v Paia [1980] SBHC 2; [1980-1981] SILR 93 (13 October 1980)

[1980-1981] SILR 93

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 2 of 1980

TALASASA

v

PAIA AND ANOTHER

High Court of Solomon Islands
(Daly CJ)
Customary Land Appeal Case No.2 of 1980

13th October 1980

Customary Land - Previous proceeding relating to some land - Res Judicata and issue estoppel - Letter of Attorney-General, effect on court proceedings considered - bias in the case of member of a court appearing before the court - time for objection to members.

Facts:

In 1971 proceedings had been taken in the High Court concerning the land in question. The Appellant’s line had been party to those proceedings. The Respondents had given evidence on behalf of the Appellant in the Court of first instance. On appeal in those proceedings the Appellant’s line was held to have primary rights in the land. In 1978 the Respondents commenced proceedings in the Local Court to establish a boundary between the land which they claimed to belong to their line and the land held by the Appellant. The Appellant relied upon the 1971 proceedings as establishing his right to disputed areas as against the Respondents. The Local Court found on the facts for the Respondents but found itself bound by a letter signed by the Attorney-General. The Customary Land Appeal Court reversed the decision. The Appellant appealed, relying on the 1971 proceedings. He also alleged at the hearing that the Customary Land Appeal Court was biased on the basis that one Respondent was a member of the Customary Land Appeal Court although he did not sit in relation to this case. No objection was taken at the hearing before the Customary Land Appeal Court.

Held:

1. Judgments in customary land cases are Judgments inter partes rather than judgments in rem and therefore do not bind third parties unless prior to the proceedings.

2. On the facts the Respondents were neither parties to the 1971 proceedings nor in control of the action (American Restatement of Law of Judgments Ch. 4 para. 84 referred to) and were not bound by the result of them.

3. The Attorney-General has no powers in relation to customary land proceedings and for him to purport by letter to constrain a court from hearing a case was improper.

4. In relation to bias it must be shown that a right minded person would consider there was a real likelihood of bias (dicta of Lord Denning MR in Metropolitan Properties v. Lennon [1968] EWCA Civ 5; (1968 3 All ER 304 adopted). On the facts this was not established.

5. Objection to members of a court should be made at the hearing if the objection was then available rather than on appeal.

Cases referred to:

Carl-Zeiss-Stiftung -v- Rayner and Keeler Ltd and others (1966) 2 All ER 356
Kuka -v- Luna CLAC 2/1979
Metropolitan Properties -v- Lennon and others [1968] EWCA Civ 5; (1968) 3 All ER 304

For the Appellant: K. Ramrakha
Respondent in person

Daly CJ: This is an appeal from a decision dated 3rd October, 1979 of the Customary Land Appeal Court for the Western District in case numbered C.L.A.C. No.6 of 1979. That Court in turn was considering an appeal against a decision No. 2/78 of the Gizo/Kolombangara Local Court dated 18th December, 1978. The Appellant in this court is Ian TALASASA who succeeded in the Local Court but who was unsuccessful in the Customary Land Appeal Court. The Respondents are Willie PAIA and Opeti BISILI.

The Local Court was concerned with a claim by the Respondents for a hill known as MAMAMISI ("the hill") which is to the North of Munda Airfield, a claim denied by the Appellant. Certain aspects of the claim were not in dispute between these parties. These were; first, that the bill was in KAZUKURU Land; secondly, that both parties had a common ancestor VAKORIGE who at one time was head of all KAZUKURU Land; thirdly, that VAKORIGE had three daughters, one of whom died but two of whom survived, namely, GULAMALI (sometimes spelt QULAMALI) and VORAMALI (sometimes. spelt GOROMALI or GOROMANI); fourthly, that the Appellant and one Jacob ZINIHITE are descendants of GULAMALI and that the Respondents are descendants of VORAMALI: fifthly, that the Appellant in 1977 began to cultivate the hill without the consent of the Respondents.

Against that background the Respondents sought to establish their rights to prevent the Appellant developing the hill without their permission. Their case was that the two surviving daughters of VAKORIGE descended from the bush and, on reaching the seaside, the land of KAZUKURU was divided between the two sisters; standing on the shore facing North the right hand side would be VORAMALI’s and the left hand side would be GULAMALI’s. These divisions are sometimes referred to as the right hand ground and the left hand ground. The two sides are also sometimes called DUDE or DUNDE (right hand ground) and MUNDA (left hand ground). The Respondents also contended that there was a boundary between the two lands and that this boundary ran to the west of the hill through a valley and thus the hill falls within the right hand ground. That being so it is necessary for the Appellant, say the Respondents, to seek their consent to develop the hill as they are-responsible for the right hand ground. In support of their general contentions reference was made to the Deed of Gift relating to the airstrip which bore the signatures of the Respondents, amongst others.

The case for the Appellant in the Local Court was put in a number of ways. In the forefront of this case, and a place at which it has remained throughout, was the contention that the hill fell within land awarded by the High Court to Jacob ZINIHITE and his line in Native Land Appeal Case No.9 of 1971 ("the 1971 proceedings") and that therefore the Respondents cannot claim the hill in further proceedings. In the Local Court a letter from the Attorney-General dated 23 January 1978 was produced in support of this contention. This is a matter raised in this appeal and must be considered in detail in this judgment. The boundary said to be created by the 1971 proceedings was called by the Appellant ‘the legal boundary’. He denied the existence of a customary boundary such as was claimed by the Respondents although he did accept that there were residential areas such as Munda, Dude and Kindu with their own chiefs. Insofar as there were such "residential areas" it was claimed by the Appellant and his witness that the hill was within the boundary of their area.

The Appellant also claimed the customary right of EMATA on the hill in conjunction with his wife Joyce. In support of this and his contention that the Respondents had no right to the hill the Appellant referred to its lack of cultivation by them.

It is therefore apparent that, leaving aside for the moment the question of the earlier litigation, the questions for the Local Court to determine were questions of fact and custom. The Local Court approached these questions in an entirely appropriate manner when they asked themselves if the boundary claimed by the Appellant, with the hill inside it, had been proved. The Court’s findings of fact were as follows:

"The issue before the court is to prove if there is such boundary and at the same time to carefully see if any such boundary ever existed. The court is well aware that KAZAKURU LAND has already been heard by High Court on Native Land Appeal Case No.9 of 1971.

In the evidences produced by the Plaintiff’s witnesses, it is quite clear that one way or the other each of the three witnesses had been told that there was a boundary which separates Dude from Munda - blocks of Land within Kazukuru Land, which runs through the Mamamisi valley. In a cross examination by the court on the Defendant’s only witness, who also is his father the witness agreed that the boundary starts from Vazoa and runs inland having the Mamamisi within Munda boundary, which is very doubtful bearing in mind that the defence witness is the Defendant’s father. In the opinion of the court, there must be a boundary which must be specified. On the other hand the court is beyond all reasonable doubt, since both parties agreed on the separation of the two sisters - Gulamali and Voramali (alias - Goromali), there must be a division which separates, Gulamali’s area from Voramali’s. The Plaintiff’s second witness stated that he heard either Milton Talasasa or Jacob Zinihite at different occasions, either mentioned or locate the boundary through Mamamisi valley respectively. He even stated witnesses who heard these two with him either mentioning or locating the boundary, which is a fact which cannot be denied.

In regard to the first and last witnesses they all confirmed that the boundary as they were told and as far as they know from the time they heard, runs through the Mamamisi valley."

It is clear to this court that in its findings of fact the Local Court were accepting the Respondents’ case on the disputed boundary. As there was evidence upon which they could properly do so such a finding of fact is, in accordance with usual practice, to be regarded as unassailable by an appellate tribunal dealing only with questions of law.

The Local Court also found in relation to the claim by the Appellant of joint rights with his wife, that custom required permission to be asked of the Dunde people in any event. Again this is a finding on local custom with which a court on appeal would be most reluctant to interfere.

Had the matter rested there it is apparent that the Respondents would have succeeded. However their claim was held to fail by the Local Court. Why was this so? The court after making the findings set out earlier then turned to the letter of the 9th January 1978 written by the Attorney-General.
What the Local Court said was as follows: -

"However in an unreferenced letter by Attorney-General dated 9th January 1978, addressed to the Honourable J .W. Talasasa, MLA and copied to the Honourable the Chief Minister, Registrar of the High Court, Government Agent, Western; District Magistrate, Western; and Clerk, Roviana Local Court, paragraph 3 and 4 would seem disqualifies Roviana or any Local Court as a whole from entertaining the Kazukuru Land or part thereof again in the question of ownership.

3. There can be no question that the decision of the High Court is final and conclusive and the court will not again entertain the question of ownership.

4. .....Accordingly if W. Paia, O. Bisili and P. Siga have initiated actions in the Roviana Local Court against Zinihite and his line these can only be in relation to custom rights not on the ownership of the land itself, the ownership of which has been decided once and for all.

In the dispute, it is quite clear that the question of dispute is the boundary of the division with Kazukuru. The boundary of the block of land which is claimed to have run through the Mamamisi valley therefore, according to the quotations above it cannot be entertained by this court or any other Local Court, apart from custom rights or Emata. In this Case the Court is therefore disqualified to entertain such matters in regard to Kazukuru Land as a whole, in relation to ownership of the land or anything of such nature."

This part of the judgment accurately sets out the letter of the then Attorney-General (who, I should add, has subsequently left the Solomon Islands). I sympathize with the Local Court. They were faced with an unequivocal letter by the Government’s principal legal adviser and as laymen they held themselves bound by it. I must make it clear that in my judgment that letter should never have been written. It was constitutionally improper. The Attorney-General advises the Solomon Islands Government; he has no power whatsoever to interfere in civil proceedings unless he is so empowered by statute or common law. No one would suggest that he has power to advise members of the public on their rights flowing from completed litigation, particularly in a customary land case. Nor would any one suggest that the Attorney-General could purport to restrict the powers of a court in entertaining a civil action. Paragraph 3 of that letter appears to do exactly that. I repeat that this letter should not have been written. Having been written and produced, it should have been ignored completely by the Local Court. That the court did not do so is, however, in the context understandable. The court found itself, therefore, bound to dismiss the claims a basis which had no substance in law. I should add that if, on their own examination of the earlier litigation, they had decided that the dispute that they were considering had been finally decided in an earlier case between the same parties, a decision thereupon to dismiss the claim would have been proper. But that is a decision to be reached by the court itself. On the form this court’s judgment took it is clear that they merely accepted what was in the letter and dismissed the claim.

The Respondents appealed against that decision. The matter was heard by the Western Customary Land Appeal Court. Again the Court heard at length the contentions of the parties. A contention was raised by the Appellant which he had not made at the Local Court. This was that, as the first born daughter was GULAMALI, the descendants of that daughter in a matrilineal society have "superior power over the land." The Customary Land Appeal Court having heard argument and visited the land gave judgment dated 3rd October 1979. The court considered carefully the earlier litigation and concluded that the hill was outside the area disputed in the litigation in 1971 and 1972 and was therefore not subject to those decisions. They were therefore able to distinguish the earlier decisions and hold that the Local Court was wrong in finding itself bound by the letter of the Attorney-General.

The Customary Land Appeal Court then, as it said, considered "the evidence before it on a customary level". Having done so in some detail the court made the following finding:-

"Thus the Customary Land Appeal Court, having established that Mamamisi Hill is outside the boundary of the land disputed in Native ;Land Appeal No.8 of 1972, also finds that Mamamisi Hill lies to the east of a customary boundary running up the Hoedeo Valley, and therefore falls within the ‘Right Hand Land’. This portion of Kazukuru land is adjudged to be the property of the descendants of Voramali led by their chiefs, W. Paia and O. Bisili, and the present appeal is therefore considered valid and upheld."

This finding of fact, then, reached the same conclusion as the initial findings of the Local Court. On that basis the Respondents were held to succeed in their original claim to have control over an area "to the east of a customary boundary running from Lodukoma to the Hoedeo Valley and thence northwards to Baeroko". Against this decision the Appellant appealed by grounds of appeal dated 31 December 1979. The grounds, with appendices, contained 19 pages. As a result of a request of this court, amended grounds of appeal were filed on 20th June 1980 which condensed the grounds to 3 pages. At the hearing on the 8th and 9th September 1980 counsel for the Appellant produced written submissions for the court to consider. Some of these submissions were not in the grounds of appeal.
It is worth noting the limitations on the powers of this court in considering such an appeal. S. 231 B (3) of the Land and Titles Act (Cap. 93) reads as follows:-

"Any person aggrieved by an order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law."

Basic to a number of grounds of appeal and submissions of counsel were references to the earlier litigation. The short contention was that that earlier litigation had decided the matters at present under dispute by the parties and therefore the Local Court should have declined to entertain the claim of the Respondents and the Customary Land Appeal Court should have dismissed the appeal. It is, then, a claim of "res judicata" or "issue estoppel".

As such a claim is commonly made in land proceedings in Solomon Islands it is worth considering the doctrine against the background of such proceedings. It is trite to say that it is a fundamental doctrine of all courts that there must be an end to litigation. In Solomon Islands there is, however, a distinct reluctance to accept that this doctrine applies to customary land cases. It does apply and in an appropriate case all courts must refuse to entertain an action which endeavours to reopen matters already decided by final judgment as between the parties.

What, then, are the criteria to apply and do they apply in the present case? The matter must turn upon an examination of the previous litigation, in particular of the parties thereto and the issues raised therein, and its relationship to the parties and matters raised in the present litigation. Counsel for the Appellant suggested that the decision in the 1971 proceedings was a "judgment in rem." He cited no authority for proposition. A judgment in rem is defined in Halsbury 4th Edition Vol. 16 at para 1522 as "a judgment of a court of competent jurisdiction determining the status of a person or a thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation". In Solomon Islands customary land cases usually involve the interests of a line in a particular piece of land as opposed to the interests of another line. There is very often no determination of who falls within the line and a degree of vagueness about the extent of the land under discussion. For my part, I would be most reluctant to hold that a judgment in a customary land case is a "judgment in rem" and binding on the world at large. After consideration of the authorities, I am happy to conclude that they do not in any way require me to do so.

These judgments are then, in my view, "judgments inter partes." In considering examples of such judgments, Halsbury (ab cit at para 1525) says:

"Judgments in action for detention of chattels and recovery of land may also be mentioned, which determine rights of possession and may ... ... decide questions of title between the parties; but none of them at all affects any interest which third parties may have in the subject matter"

In relation to ‘judgments inter partes’ for the doctrine of ‘res judicata’ to operate there must be:

(a) an earlier case in which the cause of action or point in dispute was really the same;

(b) a final determination by a court of that cause of action or point on its merits;

(c) the raising of the same cause of action, or the same point which has been distinctly put in issue, by a party who has had the action or point solemnly and with certainty decided against him."

Although the doctrine is still referred to as "res judicata" it is perhaps more accurately described as "issue estoppel" to take into account the widening of the doctrine in recent years to include decisions other than those of courts of record. As Lord Guest said in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd. and Others (1966) 2 All ER 536 at page 565 G:-

"The requirements of issue estoppel still remain (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final, and (iii) that the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised or their privies"

Thus if these matters are present then the party seeking to raise the issue anew can be stopped from so doing and the court will refuse to determine the matter afresh.

Whether or not a court has taken an appropriate course in stopping a party from raising an issue or in refusing to stop such a party is a mixed question of fact and law. If the court has applied the right test provided by the law and come to a conclusion on the facts which was open to it on the evidence, an appellate tribunal will be reluctant to interfere. This court, in view of its limited jurisdiction, would not have power to interfere. In both courts below issue estoppel was raised in relation to this case. Neither court was legally advised. In view of the way this case has been argued on appeal I must also consider to what extent issue estoppel applies to this case.

I first turn to the proceedings said to give rise to such estoppel. First I consider the 1971 proceedings. In Civil Case No. 1/70 the Roviana Native Court (as it then was) on 4th May 1970 gave judgment in a case between Jacob ZINIHITE, who was the Plaintiff, and Edwin BIKU. The matter in dispute was said to be "who is the ownership of KOLONOKI Area and also the Boundary from LODUKOMA to BAEROKO?". ZINIHITE claimed by virtue of his descent from VAKORIGE through GULAMALI. He accepted that he had "the power" for his side and the Dunde people also had "the power". Milton TALASASA the father of the present Appellant gave evidence. He accepted the distinction between "the Right Hand Ground and "the Left Hand Ground" and as to the land under dispute said:

"But the Lolonoki area I don’t know properly where this area joined. So I think may be on Dunde division or Munda area because there was no any spearline there."

Both the present Respondents gave evidence in support of the case of ZINIHITE. The basis of their evidence was support for the Plaintiff’s case that the descendants of VAKORIGE were the proper persons to control KAZUKURU land and that BIKU was not one of those descendants. Throughout the evidence references were made to the "Dunde area", "the Munda area" and "the Kindu area". W. PAIA (if he was PW6 in those proceedings which appear to be in the case) was clearly of the view that the LOLONOKI area was both in Dunde and in Munda area. The case for the Defendant BIKU was that he was in fact descended from VAKORIGE and that a division by a priest RIABULE or KUTA the Dunde people were given the other side. He described the Dunde side in vague terms as "started Pelovana, Mokuhokara and side of Polovana and side of Dude". The decision of the Local Court was expressed to be concerned with KAZUKURU Land. The court accepted that "the land which was looked after by the chiefs of Munda which was called Kazukuru was to be looked after by Edwin BIKU for the Kazukuru people who are living at Munda." The Defendant BIKU produced plans which are now before this court. They show a boundary running from LODUKOMA to BAEROKO via MOKUHOKATA. On any view these plans are not very satisfactory documents.

ZINIHITE appealed against that decision to the High Court. In that Court M. TALASASA sought to be an Appellant but the court said "TALASASA was only a witness in the court below and is not head of his-line. TALASASA must stand down". In the High Court the Respondent (BIKU) stated he was claiming "a strip 1½ miles west/east beginning at the line of hill behind the Munda airstrip and running inland roughly north for a distance of about 5 hours walk. My inland boundary is at Bao in the East and at Patuki about centre and at Tirokiaki hill in the East." What resemblance that claim had to the maps produced by BIKU is difficult to see as in those maps the boundary was the same as that claimed by ZINIHITE that is from LODUKOMA to BAEROKO with the addition by BIKU of a reference to MOKOHUKATA.

The Chief Justice in a judgment of 27th May 1971 allowed the appeal. At the beginning of paragraph 3 of that judgment the learned Chief Justice said "The basic dispute in this case is one of lineage." After considering the evidence he found for the Appellant on the basis of lineage and custom. At no time in the judgment or in the hearing were matters of boundary argued. Needless to say, the present Respondents were not parties to the appeal and took no part in it.

The learned Chief Justice in his Decree held in paragraph 1:

"That in that portion of Kazukuru bounded by the Munda airstrip to the south on an east/west base of approximately one and one half miles and extending, rectangular in shape to a corresponding east/west line in the north passing through the position of the ancient village site by the name of Bao, (some 10 miles to the north), the Respondent, Edwin Biku and members of his line enjoy land rights secondary to those of the Appellant Jacob Zinihite and members of his line."

The description of the land in this paragraph is clearly based on the description given by BIKU in his statement in the High Court. If the Appellant’s contention is correct, the effect of this decree is to give the line of ZINIHITE control over a greater area of land than they ever claimed in the Native Court where Zinihite put hi s boundary as from LOKUKOMA to BAEROKO. This is a curious result that an appeal can give a party something more than he has ever claimed. It should also be noted that the boundary stated by ZINIHITE in the 1971 claim is the same as the boundary found to exist by the Customary Land Appeal Court in the present proceedings.

Subsequently the decree in the 1971 proceedings fell to be further considered by the courts in what I shall call the 1972 proceedings. On 28th February 1972 Jacob ZINIHITE and Milton TALASASA gained an injunction in the Magistrate’s Court to prevent BIKU planting on the land awarded to them. BIKU appealed to the High Court. This appeal was dismissed by the Chief Justice on 2nd August 1972 (Native Land Appeal No.8 of 1972) but in view of the vagueness about the extent of the land in question, which was described by the learned Chief Justice as having a southern boundary running "East West through a place named Mokuhakata", an order was made that the boundary was to be marked. This was done by a Mr. T. Takoa in 1973 and a plan produced. There is no suggestion that the present Respondents were in any way concerned in the 1972 proceedings or in any way agreed the Takoa plan.

I am also asked to consider a decision of Roviana Native Court dated 28th October 1974 between, it would appear from the decision (to which alone I have been referred) J. ZINIHITE, M. TALASASA and J. KERE and possibly E. BIKU. Apart from the fact that the clerk to the court was W. PAIA, a present Respondent, and there was a reference to the Roviana Native Court’s inability to change the High Court decision it is difficult to see the bearing which those proceedings have on the present case. Other cases have been listed in the submission of counsel but he has not suggested that they have any bearing on the present matter.

Against this background I must now consider the reiterated claim that the earlier decisions and, in particular that in Native Land Appeal Case No.9 of 1971, "settled the ownership question (of the hill) once and for all" (submission of counsel page 3). I have already referred to the suggestion that this was a "judgment in rem" which I reject.

I therefore turn to the question of "res judicata" or issue estoppel. The first question, then, is has the Appellant, who is relying on estoppel, established that the 1971 case was a case in which the cause of action or point in dispute was really the same? In the Local Court the matter in dispute was the lineage of BIKU and the claim that his ancestors had been given control over some KAZUKURU land by a priest. The extent of that land was never discussed in detail in that court although BIKU claimed it was on the Munda side. I have already said something about the boundary referred to in the statement of claim. The plans submitted by BIKU were unsatisfactory documents which were belied by his claim in the High Court. In the High Court the matter said to be dispute was as set out in the judgment paragraph 3 to which I have referred earlier. The learned Chief Justice did not hear any argument on boundaries but accepted what was said by BIKU as to the land claimed by him. It cannot, on any view of that case, be said that a point in dispute was the nature of a boundary, if any, between the Munda and Dunde peoples which is the issue in the present proceedings. The second question is was any final determination of that point on its merits? The only answer in my judgment is ‘NO’. BIKU was concerned merely with establishing his own claim to some KAZUKURU land about which both he and his plans were vague; he was not concerned to defend the interests of the Dunde people. Nor indeed was ZINIHITE concerned to attack the interests of the Dunde people. The Respondents were not at any stage in the 1971 proceedings given an opportunity to deal with their case on the boundary between the right hand ground and the left hand ground. Even were these two points held to be established in favour of estoppel, which is, in my view, not a real possibility, then the applicant must also establish that the Respondents were parties to the earlier proceedings or the privies of parties to that action. They were certainly not parties to the action in the formal sense; they appeared merely as witnesses to assist in the defeat of BIKU on the lineage point. Can it be said that there were privies to the action? In the American Restatement of the Law of Judgments Ch 4 para 84 it is said that a person who is not a party, but who controls an action, is bound by the judgment as if he were a party if he has a proprietary or financial interest in the judgment as a privy. It cannot, in my judgment, be argued that these present Respondents could in any sense be said to "control" the action brought against BIKU by ZINIHITE who represented his own line. They were certainly not "in control" of the defense by BIKU to whom they were, if anything, opposed. When one turns to the appeal in which the reference to the extent of the land was made, a reference which is the corner stone of the Appellant’s case on this point, then it becomes abundantly apparent that the present Respondents were not in any way parties or privies to the parties making that appeal.

In my judgment therefore, applying the tests set out above, the Appellant has failed to establish that the issue in the present proceedings was a matter which the Respondents should have been stopped from raising in the Local Court and the Customary Land Appeal Court by virtue of the 1971 decision.

That being so, it becomes unnecessary to consider in detail the 1972 proceedings. Criticisms have been addressed to the form of the judgment in those proceedings and the nature of the procedure adopted in marking the land. As I hold the view that these can only be matters of concern to the parties engaged in those proceedings, that is ZINIHITE, M. TALASASA and Edward BIKU and their privies (a category in which these present Respondents cannot be included), I express no views on these matters. No question of issue estoppel arises in these proceedings from the 1972 proceedings.

The same applies in relation to the 1974 proceedings. To suggest a court clerk is in any way personally bound by the decision of his court is, with respect, quite unrealistic, even were it established that the issue dealt with by that court was anything to do with the present proceedings, which has not been done.

The various grounds of appeal and submissions by counsel for the Appellant based on previous proceedings must therefore fail. The proper approach for the Local Court on the evidence before it would have been to say to itself that this is a new case with a new issue between different parties which must be determined on the evidence and custom. Had they done so it is apparent they would have found in favour of the present Respondents. Similarly, it was unnecessary for the Customary Land Appeal Court to spend time considering where the hill under dispute lay in relation to the various claims made by BIKU and discussed in the earlier courts. Having decided however, that they were not bound by the earlier decisions (which indeed they were not), their conclusions on the evidence and custom were that the present Respondents were successful. Both those courts made unassailable findings of fact when dealing with the correct issues. This court has no alternative but to respect those findings which supported the case for the Respondents.

A number of other points were taken on appeal concerning procedural matters.

The first was that the Respondent W. PAIA was, at the time of the appeal, President of the Western Customary Land Appeal Court having been so appointed by the Governor for three years from 26th April 1977. His appointment therefore terminated on 26th April 1980. Insofar as earlier proceedings were concerned, by appointment dated 29th August 1979 the then Chief Justice appointed Silverio OTUANA as Temporary President of the Western Customary Land Appeal Court for the appeal and the court was presided over by that gentleman. It is suggested that, nevertheless, the hearing before the Customary Land Appeal Court amounted to a denial of natural justice in that the Respondent W. PAIA was a personal friend of two named members of the court who had worked with him in the colonial administration. It is further suggested that Mr. PAIA should have resigned from the court when he became a litigant. It seems to me that there is nothing in the second suggestion. As far as the former is concerned the locus classicus is Metropolitan Properties v. Lennon & Others [1968] EWCA Civ 5; (1968) 3 All ER 304 in which Lord Denning said at page 310:

"The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough."

Thus I must apply this test to the present case. As far as the general point of a person who is a president or member of a Customary Land Appeal Court being a party before that Court is concerned (when taking, of course, no part as president or member), I do not consider that a right-thinking person in Solomon Islands would consider there was a real likelihood of bias. The members of the court are drawn from throughout the Western Province and apart from the general allegation and the question of the named members, there is no real suggestion of appearance of bias. As to the two named members, the suggestion is that they have worked with the Respondent PAIA. No doubt they are familiar with the Respondent but I would need more to be established before I would accept that an impression of bias existed. In any event it was open to the Appellant to object to the named members on good grounds at the hearing rather than rely upon the general objection to the court he had earlier made. He did not do so. As Renn Davis C.J. said in Kuku v. Luna (C.L.A.C. 2/1979) in similar circumstances, to take such objection on appeal is too late in the day. I have given the matter careful consideration and I am satisfied that bias did not in fact exist nor did the appearance of it. This point is rejected.

Another point was taken on a technicality of the appointment of the Customary Land Appeal Court. It was suggested that the court had not been properly appointed if it had not been appointed for a period of time. The kindest thing to say about this point is that it was unsupported in fact and law at the hearing and a perusal of the documents take it no further. It is rejected.

It is suggested that Customary Land Appeal went further than necessary in rehearing certain matters. To do so is certainly not prohibited by any law. Indeed it is difficult to see how an appeal can be heard without to some extent repeating what has been heard before. This is not a point which assists the Appellant.

The remaining matters in the grounds of appeal and submissions involve points of fact or customary law which are matters to be canvassed before the Local Court and Customary Land Appeal Court. I have considered them and conclude there is no point raised which amounts to a point of law which would enable this court to interfere.

I have indicated my view that the findings of fact and custom made by the courts below were open to them on the evidence. In my judgment, there being no procedural defeats in the hearing given to this matter by those courts, those findings make a decision in favour of the Respondents on the issues in this case inevitable.

In those circumstances the appeal against the decision of the Customary Land Appeal Court is dismissed and the decree of that court is confirmed.

The Appellant must pay the costs of the Respondents in these proceedings and in the two Courts below.