Lilo v Panda; Lilo v Ghotokera [1981] SBHC 12; [1980-1981] SILR 155 (3 June 1981)

[1980-1981] SILR 155

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 10 of 1980
Customary Land Appeal Case No. 11 of 1980

LILO

v

PANDA

&

LILO

v

GHOTOKERA

High Court of Solomon Islands
(Daly C.J.)
Customary Land Appeal Case No. 10 of 1980
Customary Land Appeal Case No. 11 of 1980

3rd June 1981

Customary Land - previous adjudication proceedings for compulsory purchase under Land and Titles legislation - effect on case before local court - estoppel - survey of land - whether essential in customary land case.

Facts:

In 1968 proceedings were commenced for the government to acquire customary land. An Adjudication Officer after lengthy hearings determined that the Respondent in these appeals were not the owners of the land but that the appellant and his line were. This decision was confirmed on appeal to the High Court. The acquisition was not completed. This decision was followed in a subsequent determination by an acquisition officer (again these proceedings did not lead to acquisition) and in a subsequent customary land appeal case in the High Court concerning neighbouring land. In 1978 proceedings were commenced in the Local Court between the parties concerning rights to the land. The local court found in favour of the Respondents and their lines. These decisions were upheld on appeal to the Customary Land Appeal Court. .The Customary Land Appeal Court did not view the land. On further appeal to the High Court.

Held:

1. Res Judicata and issue estoppel do not operate by virtue of findings in acquisition proceedings which are not completed as the finding of the adjudication officer is for the purpose of those proceedings only (Kuku v. Luna (CLAC No.2 of 1979) followed). It makes no difference if the finding is confirmed on appeal. However other courts should have regard to such findings as of persuasive authority

2. The jurisdiction of the Local Courts to hear customary land cases is not ousted by determinations or decisions in incomplete acquisition proceedings.

3. A decision whether or not to view (survey) land by a Customary Land Appeal Court is within the discretion of the court and if there are grounds for exercising their discretion a certain way their decision is not impeachable on appeal (Luna v. Seijama CLAC No.5 of 1979 followed).

Other cases referred to:

Talasasa -v- Paia & another [1980-1981] SILR 93
Gibbs v. McCorquodale (1950) 67 NSW W.N. 169
Society of Medical Officers -v- Rope (1960) 1 All ER 117

For Appellant: F. Waleilia
Respondent in person

Daly CJ: This is the judgment of the court in two appeals from decisions of the Western Customary Land Appeal Court in two cases heard by it in relation to both of which judgment was given on 25th. July, 1980. That court was in turn considering appeals from the Vella Lavella Local Court in relation to two cases. These were LC/1/79 in which there was a seventeen day hearing commencing on 24th January 1979 and Land Case 2/79 in which judgment was given on the 14th day of September 1979.

Both cases involved claims to customary land in Kolombangara; case LC/1/79 concerned what I shall for present purposes call VOKO land and Land Case 2/79 concerned ZORUTU land. The grounds of appeal pursued in this court in each case were identical other than for the necessary changes of names and the appeals were, with the consent of all parties heard together.

These disputes have a long history of hearings which it will be necessary to examine but first let me deal with the proceedings which are on appeal to this court. At some time in 1978 the present appellant George Pina LILO paid for two summonses before the Local Court. These summonses claimed "an area of land Lot 7 of LR 159 known as ‘Zorutu’" against RIZU PANDA and PIASI BULE and "an area of land Lot 6 of LR 159 known as ‘Voko’" against GHOTO KERA and JOSEPH GHEMU. By a temporary variation of a warrant, the Vella Lavella Local Court was given jurisdiction to hear these two cases (see L.N. 93/78). In fact when the cases came to trial the parties had been reversed and RIZU PANDA appeared as Plaintiff in relation to ZORUTU land and GHOTO KERA as Plaintiff in relation to VOKO land, the defendant in each case being the present appellant.

In the Local Court the issues quickly became apparent. RIZU PANDA claimed ownership of ZORUTU land on behalf of the descendants of ZORUTU tribe. GHOTO KERA equally claimed ownership of VOKO land on behalf of VOKO tribe. George LILO disputed both these claims on the basis that these lands fell within the area of land owned by the VIURU tribe (which he represented) and that the lands claimed were not separate lands but part of the VIURU tribe land holdings. The Vella Lavella Local Court found that the land from KUKUDU RIVER to PATUPAELE was ZORUTU land of which RIZU PANDA was the owner and that VOKO land, described as from KOLAKORI to PEPELE, belonged to GHOTO KERA on the basis that VOKO and VIURU were two different lines. I should make it clear that in describing the persons named as "owners" the Local Court was not saying that they were personally the owners but that the line which they represented had won the case.

Against these two decisions the appellant appealed unsuccessfully to the Western Customary Land Appeal Court. The points now made in this court were brought up in those appeals but insofar as they are points of law (other than points of customary law) then it is open to the appellant to raise them again in this court in an appeal brought under S. 231 B(3) of the Land and Titles Act.

What are those points? There are three in each appeal. They can be shortly expressed as follows:

A. that the earlier decisions in relation to this land should have stopped the Vella Lavella Local Court from making a new decision; and

B. that the failure of the Customary Land Appeal Court to go and survey the land was a failure which meant that the Customary Land-Appeal Court could not properly hear the case or, indeed, that the failure prevented the court from hearing the case at all

C. that the Customary Land Appeal Court did not give enough weight to the report of an Adjudication Officer.

Point A requires this Court to go back first of all to the year 1967 when the first decision of the courts to which I was referred occurred. This was a case in the Roviana Native Court heard on 29th September 1967, between RIZU PANDA (one of the Respondents) and NAO ROVU concerning a piece of land at PATUPAELE. Two judgments were given in that case one on 3rd Oct 1967 which reads:-

"The Court has decided and believed that the Viuru Land starts from Ruvi to Sausama.

The court also believed that these three names Zorutu Voko and Kiuai are there also, but they are in Viuru land.

The court decided that the people would do each of their pieces of ground in the Viuru land, start from Ruvi to Sausama and they themselves would work their own boundaries start from the beach to the bush.

The court decided and agreed that Nao has the right to use his piece of land at Patupaele which his father Rovu had worked for many years. So, Nao would continue working it start from the beach and up to the bush."

The other was given on 5th Oct 1967. This reads:-

"The court discussed that the land from Ruri to Sausama was Viuru land. The court believed that there are three pieces of land inside Viuru land which they called Zorutu, Voko and Kiuai as well.

The court ruled that these four tribes have to meet and divide the land from Ruvi to Sausama for them to work from the beach to the bush.

The court believed and agreed that Nao has rights to use the piece of land at Patupaele which his father Rovu had used for many years, so Nao has to continue his work from the beach up to the bush."

The second judgment seems merely to elaborate the first in ruling that the four tribes must meet and make spearlines. The clear implication from these decisions is that inside Viuru land as defined there were four tribes each with rights over certain parcels of land.

The following year 1968 the rights over this land again came into question. The Government wished to lease land on Kolombangara for a period of twenty-five years for the purpose of timber extraction. Agreement was entered into with certain persons in relation to a number of parcels on 15th March 1968. I am concerned only with Lot 6 of L.R. 598 - VOKO for which the proposed lessors were GRASI KILASA, ELIJAH GHEMU and. GHOTO KERA and Lot 7 of L.R. 598 - ZORUTU for which the proposed lessors were RIZU PANDA, ALPHEUS BULE, MARK HEMI and PIOKERA. It will be noted that the present Respondents were nominated as Lessors. At this time, then, the land was surveyed and the names used in this case applied to certain lots.

It is important to consider the legislation under which this acquisition procedure was carried out. The appropriate Ordinance at that stage was the Land and Titles Ordinance (Cap. 56 in the Revised Laws of 1961 "the Ordinance). This Ordinance at the relevant time provided in section 51 as follows:-

Notwithstanding any current native usage prohibiting or restricting such transaction native customary land may be sold or leased by the owner or owners thereof (according to current native usage) to the Commissioner of Lands".

The procedure embodied in section 52 for an acquisition of customary land provided for a written agreement "with the vendors or lessors or with some person or persons acting, in accordance with current native usage, on behalf of the vendors or lessors" (s. 52(1)). An appeal was provided to an Adjudication Officer by "any person who claims that the land, or any part of it, is not owned by the vendors or lessors" (s. 52(9). The decision of the Adjudication Officer was to specify "whether the whole or any part or parts, and in the latter case which part or parts, of the land is or are owned by the vendors or lessors" (s. 52(15)). A further appeal on a point of law or procedural failure lay to the High Court (s. 52(17)). s. 52(19) has been said to be of importance so I shall set it out in full: -

"A decision of the Court on an application under subsection (17), and, subject to the provisions of that subsection, a decision of an Adjudication Officer under this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

In my view subsection 52(20) is also of importance. This reads:-

"Any part of the land in respect of which no appeal has been instituted shall for all purposes whatsoever be deemed to be owned by the vendors immediately upon the expiration of the time limited by subsection (10) for instituting an appeal".

(A similar provision is made for "deeming" on failure of an appeal in s. 52(21))

It will be observed that "vendors" and "lessors" in this context means "the persons purporting to be the owners of, and to sell or lease, the land" (s. 52(26)).

To return to the facts of this case. I have already set out the names of the persons who were "lessors" of Lot 6 (VOKO) and Lot 7 (ZORUTU) in the 1968 negotiations. However the provisions of challenge embodied in section 52 of the Ordinance were immediately implemented by David BULEHITE and George Pina LILO (the present appellant) on behalf of the VIURU people claiming that the latter were entitled to ownership of the land in those lots. An Adjudication Officer duly considered the conflicting claim under the provision of section 52 of the Ordinance. The adjudication was held during September and October 1968 and January and February 1969 and the decision of the Adjudication Officer was embodied in a document dated 31st March 1969 containing 86 pages. The conclusions of the Adjudication Officer are summarized in two passages of page 86 of his decision. These read:-

"I come to the overall conclusion that the objectors and members of VIURU tribe have absolute right and authority or ownership over the whole region as already described, including Lots 5, 6, 7and 8".

And

"The lessors of Lots 6, 7 and 8 therefore did not have any right and authority of ownership to lease these Lots in accordance with native customs and current usage. The lease agreements in respect of Lots 6, 7 and 8 were thus concluded with the wrong persons".

Against this decision RIZU PANDA and two others appealed to the High Court. In the Notice of Appeal the same contentions concerning the separation of the lands were raised. The appeals were heard in Native Land Appeal No. 19 of 1969 and on 29th November 1969 Bodilly C.J. dismissed the appeals.

These proceedings (which I shall call the 1969 adjudication) are said by counsel for the appellant to found estoppel by res judicata or issue estoppel. At this stage it is sufficient for me to say that, in accordance with section 52(15) of the Ordinance the issue before the Adjudication Officer was "whether the whole or any part or parts, of the land is or are owned by the vendor or lessors"? His answer to that issue was "Neither the whole nor any part is owned by the vendor or lessors". In reaching that answer he considered claims by others; but whether he had jurisdiction to make a finding as to those claims is another matter. It would appear from the Ordinance at least to be arguable that he had no such jurisdiction as the issue was limited to the rights of the vendors or lessors.

Subsequent to the 1969 adjudication I assume that the agreements reached in March 1968 were rescinded in accordance with section 52(25) of the Ordinance.

I am also referred to Native Land Appeal Case No.3 of 1973. This case concerned an area of land adjoining the Patupaele River which is next to Lot 8 of L.R. 598. Although it is accepted by the appellant that the land in question is not strictly the same as the land subject of these appeals it is submitted that that case shows that authority has been given to the report in the 1969 Adjudication. Native Land Appeal Case No.3 of 1973 in this court was an appeal from a decision of the Roviana Native Court dated 5th May 1972. That court had found that GIDEON GHOMO was entitled to possession of the land as against Dedi LAKELU, who was claiming as a member of the VIURU tribe. On appeal Bodilly C.J. referred to the 1969 adjudication and after reading the conclusion of the Adjudication Officer said "I myself heard the appeal (in the adjudication case) and having studied carefully the evidence before the adjudication officer I had no hesitation in coming to the same conclusion as he did, namely that the whole area in issue was subject to the customary control of the Viuru line". The result of the appeal is expressed as follows:-

"In the result the appeal is allowed to the extent that the customary ownership of the one and half miles of land in dispute in this case is declared to vest in the Viuru line but it vests subject to the exclusive right of occupation of the whole of the disputed area by the respondent Gideon Ghomo and his line".

Further proceedings in relation to the land took place in 1974. On the 2nd May of that year, according to a copy of a judgment in the Magistrates Court for the Western District dated 13 January 1975, an acquisition officer made agreements to lease Lots 6, 7, and 8 of L. R. 598 with George LILO, Nao ROVU, David BULEHITE, Joseph KOPA and Joseph LILOKEVU. It will be noted that reference is here made to an "acquisition officer". This is because the procedure for acquiring customary land at that stage was dealt with in Part V of the Land and Titles Act (Cap. 93 of Revised Laws of 1969; "the Act") which had come into force on 1st January 1969.

Under that procedure an acquisition officer was appointed to make a plan and enter into a written agreement "with the persons who purport to be the owners of the land or with the duly authorised representative of such owners" (section 60 and 61 of the Act). He holds .public hearing to consider claims and determine them after due notice (section 62, 63 and 64). The issues before him are claims: "(i) that the vendors or lessors named in the agreement are not the owners; or (ii) that such vendors or lessors do not have the right to sell or lease the land and to receive the purchase money or rent". (section 62(b)). Against the act or determination of the Acquisition Officer an appeal lies to the Magistrates Court and thence to the High Court (section 65).

In the 1974 acquisition proceedings a public hearing was held in June 1974 at which there were no claimants. However, an appeal was thereafter laid in the Magistrates Court in relation to Lot 6 by Elijah GHEMU, Ghasa KILASA and Rupeti GIROI and in relation to Lot 7 by Rizu PANDA and Piasi BULE. The same issues were raised and, relying on the decision in the 1969 adjudication, the appeals were dismissed by a Magistrate on 13th January 1975. No appeal was made to the High Court.

It appears that these acquisition proceedings were thereupon abandoned as there is no indication of the agreements being implemented or any registration being effected within the provisions of section 66, 68 and 69 of the Act.

The next event of importance in the story of court hearings in relation to this land is the commencement of proceedings in the Vella Lavella Local Court which I have already mentioned. Then the story goes full circle from the Roviana Local Court in 1967 to the Vella Lavella Local Court in 1978.

I now turn to the issues before this court arising from Point A that is that the Vella Lavella Local Court should not have considered the matter again. The technical legal terms used in the grounds of appeal refer first of all to "estoppel by res judicata" (Ground 1) and then to "estoppel by record" (Ground 1A). In both cases the adjudication proceedings (including the appeal to the High Court) are relied upon. It is accepted by the appellant that such estoppel is ‘inter parties’ and not ‘in rem’ on the basis of Talasasa v. Paia and Bisili [1980-1981] SILR 93; CLAC No.2 of 1980). The principle of estoppel per res judicata is that in certain circumstances a new court case is stopped altogether on the basis that an earlier judicial decision has finally determined the whole legal rights and obligations between the parties; the principle of issue estoppel is that an earlier judicial decision has determined finally an issue between the parties and those parties are stopped from asserting that a different determination of that issue should be reached in subsequent proceedings. The submission for the appellant is that in this case there was a judicial decision either by the Adjudication Officer or the High Court on appeal and that the parties were the same and that the issues were the same. Therefore the Vella Lavella Local Court should have said to itself, "we are bound by the decision of the Adjudication Officer as confirmed on appeal, therefore without hearing the case we must find for the Defendant, George LILO". The Respondents on the other hand rely upon the decision of Davis C.J. in Samuel KUKU v. Naisi LUNA (C.L.A.C. No.2 of 1979). In that case a similar point was taken to that taken by the Appellant in this case. The learned Chief Justice said at page 5:-

"The appellant also claimed that the Customary Land Appeal Court should have accepted as binding the finding of the High Court in Land Acquisition Appeal Case No.4 of 1974, Naisi Luna v. Silas Eto and the Acquisition Officer, that Leti, the appellant’s grandfather, was one of the representatives of the Dekurana people in his capacity as a representative of one of the land owning groups of the Dekurana Land, and that the Court was wrong in accepting the contention by: the Respondent that the findings of the Acquisition Officer as confirmed by the High Court, were irrelevant as far as the appeal before it was concerned. In my view the Customary Land Appeal Court was perfectly correct. The only courts with jurisdiction to determine the ownership of customary land in the event of dispute as to such ownership are the Local Courts - see section 231 of the Land & Titles Act. Under Part V of the Act relating to the purchase or lease of customary land and compulsory acquisition of land the Acquisition Officer is required as best he can to ascertain who purport to be the owners of the land to be leased or purchased by the Commissioner of Lands or who are duly authorised representatives of such owners in order that it may be ascertained to whom the purchase price or rent should be paid. On the evidence adduced before him the Acquisition Officer decides who he considers are the owners of representatives of the land in question, and while his decision, particularly if confirmed on appeal, is of persuasive authority that the persons found by him to be the owners of the land are indeed the owners, this finding is by no means conclusive and may well be displaced by the finding of a Local Court in its determination of a dispute as to the ownership of the land in question. In my view this is exactly what has happened in the instant case."

It may be worth for the sake of completeness setting out section 231(1) of the Act to which the learned Chief Justice referred: -

"A Local Court shall, subject to the provisions of this section, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than -

(a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land".

(The same provision is made in section 138(1) of the Ordinance)

Counsel for the Appellant accepts that the decision of Davis C.J. is persuasive authority but submits that that authority should not be followed.

As this is a point of some importance I must consider it in detail. The first matter which I should emphasize is that finality in litigation, and particularly land litigation in Solomon Islands, is not only highly desirable but, some would say, vital. Clearly in an appropriate case the Courts must say; "This is the same case all over again before the same courts, we cannot hear it". However in this instance the legislature has created two sets of procedures for dealing with what, on the face of it, appear to be the same issue. The question I must answer is, how do those procedures interlock if at all? In the instant case, as in Kuku v. Luna (ab. cit), the two procedures have produced different answers. I should perhaps add that it is not my function to decide which is the right answer on the merits of the case but which answer should prevail in law. I also add that I have no powers in relation to the 1969 adjudication proceedings as such. I have heard suggestions that those proceedings were not properly conducted. The time for making such allegations was to Bodilly C.J. in 1969. They were not made then and cannot be entertained now.

I look first at the position of the Adjudication Officer. (I shall use this expression in view of the circumstances of this case although much of what I say would seem equally applicable to an acquisition officer under Part V Division 1 of the Act). As Davis C.J. observes, the function of such an officer is to perform a step in a process which shall lead in due course to the Commissioner of Lands purchasing or taking a lease of customary land. As such this jurisdiction is limited to that expressly granted by the statute setting up the process. This does not mean that he cannot give a decision which is judicial decision for the purposes of estoppel. In the Australian case of GIBBS v. MCCORQUODALE (1950) 67 NSW W.N 169 it was held as follows: -

"To constitute a res judicata, there must be a judicial decision pronounced by a judicial tribunal. It must emanate from a judicial tribunal in the exercise of a judicial function. A judicial tribunal is one which exercises judicial functions by force of inter alia, the common law or statute. It may be invested with permanent jurisdiction to determine all causes of a certain class as and when submitted or it may be clothed by the State (and/or even by the disputants in some cases) with merely temporary authority to adjudicate upon a particular dispute or disputes. It is now well settled that it is immaterial whether it is known by the name of a court at all. The test is really not one of court, but of jurisdiction."

Therefore what must be carefully looked at is the jurisdiction granted, in this case, by section 52 of the Ordinance. I have already referred to the terms of section 52 (15) and the decision to be made by the adjudication officer; it is, in my view, limited to a finding of whether or not the land is owned by the vendors or lessors. There is no power given by the Ordinance to make a finding as to who are in fact the true owners. The question then arises as to whether this is the kind of decision which should be given the degree of finality required to set up estoppel per rem judicatam. In the Society of Medical Officers etc v. Hope (1960) 1 All ER 317 the House of Lords considered the effect of a decision of a local valuation Court. Lord Radcliffe said at pages 321, 322: -

"One consideration is that the jurisdiction of the tribunal to which the decision belongs by the administrative scheme is a limited one. It is limited in the sense that its function begins and ends with that of deciding what is to be the assessment or liability of a person for a defined and terminable period. "The assessments seem inherently to be of a passing nature". For the purpose of arriving at its decision; the tribunal may well have to take account of, and form its own opinion on, questions of general law, it may even have necessarily to consider one or more of such questions; but in either case the view adopted with regard to them is incidental to its only direct limited purpose it is a court with a jurisdiction competent to produce a final decision between the parties before it; but it is not a court of competent jurisdiction to decide general questions of law with that finality which is needed to set up the estoppel per res judicata that arises in certain contexts from legal judgments".

In my judgment these words are equally applicable to an Adjudication Officer acting under section 52 of the Ordinance as he acts within an administrative structure where his jurisdiction is strictly limited by the terms of the section to a decision relating to whether certain persons are to be treated as vendors or lessors in the course of the acquisition. In my view any determination made is for the purpose of the acquisition proceedings alone. It is, as Lord Radcliffe says, "inherently of a passing nature" as with termination of the acquisition proceedings whether on completion or abandonment the determination ceases to have any purpose. I am assisted in reaching this conclusion by the terms of section 52(20) and (21) which expressly "deem" the land to be owned by the vendors or lessors in the event that no appeal against the adjudication officers decision is entered or in the event that an appeal is unsuccessful. If the decision of the adjudication officer were such as to be a conclusive finding in itself of ownership then it would not be necessary to "deem" ownership in this way. In any event as opposing parties are not ‘vendors’ or ‘lessors’ within the terms of the Ordinance the Adjudication Officer has no jurisdiction to make a finding in their favour and, were he to purport to do so, as he did in this case, that finding cannot operate to "deem" ownership as for such "deeming" to take place the Ordinance must expressly so provide. The same reasoning would apply to an acquisition officer acting under Part V Division 1 of the Act. Indeed he is even more interwoven into the administrative process as he acts as agent for the Commissioner of Lands (see section 60 (1)) and has administrative functions. His determination is as to "the identity of the persons who have the right to sell or lease the land and receive the purchase money or rent" again for the purpose of implementation of the agreement. Upon such implementation, in the Case of a lease, the Commissioner makes "an order vesting the perpetual estate in the land in the persons named in the agreement as lessors". (section 68(1) (b) (1) of the Act). This order is subsequently registered. This process of making a vesting order, too, would not be necessary if the determination of the acquisition officer was intended by the legislature to have the final and conclusive effect. Thus I find that neither the decision of the adjudication officer in the 1969 proceedings nor of the acquisition officer in the 1974 proceedings were sufficient in themselves to raise either estoppel per res judicata or issue estoppel.

I emphasize that in this case neither of the acquisition proceedings took their full course to entry into agreement or implementation. Had that been done a very different situation may have obtained in that the clear words of the statute in each case provide for the acquisition of rights over land upon the completion of the statutory procedures. This judgment should not be taken as suggesting that those procedures are incapable of conferring such final rights; if they are followed to completion then such rights may result. I repeat in this case the procedures were not completed.

It has been suggested to me that the fact that on appeal the High Court confirmed the decision of the adjudication officer conferred greater status on that decision. Again one must look at the nature of the jurisdiction of the High Court. Section 52(17) of the Ordinance provides as follows: -

"If any person aggrieved by the decision of the Adjudication Officer desires to question it, or any part of it, on the ground that it is erroneous in point of law or that the Adjudication Officer has failed to comply with any procedural requirement of this Ordinance, he may, within three months from the service upon him of a copy of the decision, make an application to the Court;. and on any such application the Court may, if satisfied that the decision is erroneous in point of law or that the interests of the applicant have been substantially prejudiced by the failure of the Adjudication Officer to comply with any procedural requirement of this Ordinance, quash the decision either wholly or in part, and substitute for the decision, or the part thereof quashed such decision as .in its opinion ought to have been given by the Adjudication Officer."

Thus the High Court in that case, as indeed this court in this present case, had limited powers and had no jurisdiction to substitute, for example, its own view of the facts for that of the Adjudication Officer. The learned Chief Justice did not purport to do so. He merely found that there was no merit in any of the grounds of appeal. When the learned Chief Justice in a subsequent case said he had no hesitation in coming to the same conclusion as the Adjudication Officer (see NLAC No.3. of 1973) that must be taken as a personal view as, with great respect, he had no jurisdiction as a court to make any finding on the facts of the case when hearing the appeal from the Adjudication Officer.

Thus as far as the facts are concerned one is left with the finding of the Adjudication Officer. In my judgment an unsuccessful appeal on law or procedure to the High Court cannot confer greater weight on that finding than it possesses of its own right.

It is also suggested that I should get some assistance in relation to estoppel from the provisions of section 52(19) of the Ordinance which I have set out above. What that does to my mind, is to exclude expressly further appeals or proceedings to challenge the processes created under section 52. I do not consider it can be said to create an estoppel; this as I have already indicated is created by the "deeming provision" in subsections (20) and (21) which provide for a form of statutory estoppel.

I turn to the provisions of section 231(1) of the Act and section 138(1) of the Ordinance which are also set out earlier in this judgment. Counsel for the appellant argues that these should not be given the wide interpretation placed upon them by Davis C.J. He relies upon the terms of subparagraph (a) and argues that that subparagraph excludes from the jurisdiction of the Local Court adjudication proceedings and acquisition proceedings. The proceedings we are concerned with in this case were, as I have said, as to whether certain per sons should be accepted as lessors in the acquisition proceedings.

A determination made in relation to this issue is clearly a "proceeding for the determination of which some other provision is expressly made as there is express provision for its determination by an Adjudication Officer or Acquisition Officer. But as I have also said earlier the determination in question is one for the limited purposes of the acquisition proceedings. The Local Court has no jurisdiction in relation to matters arising in those proceedings. The terms of the subsections however are, in my view, such as to make it clear that in all but the limited exceptions contained in subparagraph (a) and (b) the Local Court does have jurisdiction. Thus outside the acquisition proceedings the Local Court has exclusive jurisdiction. No one would suggest that the present cases before the court have any bearing on acquisition proceedings and therefore I must conclude that jurisdiction vests in the Local Court and is not ousted by the words of subparagraph (a) of section 231(1). If the proceedings had been completed the effect of the express words of the Ordinance and the Act may well have ousted that jurisdiction. But that is a point which cannot be taken in this case.

I summarize my conclusions on this point as follows: -

(a) a decision of an Adjudication Officer or determination of an acquisition officer in acquisition proceedings if insufficient of itself to found res judicata or issue estoppel in proceedings outside the acquisition proceedings.

(b) confirmation on appeal of such a decision or determination confers no greater weight on the decision or determination on issues of fact than if possesses in its own right and therefore conclusion (a) where matters of fact are concerned is not affected by appeal proceedings.

(c) the exclusive jurisdiction of local courts in matters and proceedings of a civil nature arising in connection with Customary Land under section 231(1) of the Act is not ousted by determinations or decisions in incomplete acquisition proceedings although such might be the case in completed acquisition proceedings.

As in this case the matters in issue are entirely questions of fact and the acquisition proceedings relied upon were not completed it follows that it was open to the Vella Lavella Local Court in the exercise of its exclusive jurisdiction to proceed to hear and determine the summonses in these two cases. As Davis C.J. suggests, they would no doubt regard the Adjudication report and earlier proceedings as valuable persuasive matter, but it was their function to reach their own decision. This the Local Court did and the Customary Land Appeal Court upheld their decision in favour of the Respondents. As such a course was open to both courts on the evidence before than I have no power to interfere with those decisions.

I turn now to Point B which involves the fact that the Customary Land Appeal Court did not survey the land in question. Although it is not expressly so suggested in the Grounds of Appeal, I take it the same criticism is addressed to the Local Court. The way the point is advanced is that both courts had a discretion to view the land. They refused to do so and as they had no grounds for such refusal they therefore disqualified themselves from exercising jurisdiction. I must confess to some difficulty in following the way the point was put to me. Reference was made to the case of NAISI LUNA v. BOAZ SEIJAMA (CLAC No.5 of 1979) in which the same point was taken. In that case Davis C.J. said at p. 2: -

"As to (a), section 231 B(3) of the Land and Titles Act gives a right of appeal to the High Court to any person aggrieved by a decision of a Customary Land Appeal Court on the ground that such decision was erroneous on the ground of failure to comply with any procedural requirement of any written law. There is no written law requiring a Customary Land Appeal Court to visit disputed land the subject of an appeal before it. Whether or not a court visits the disputed land is entirely a matter within its own discretion. In the present case, the Western Customary Land Appeal Court has ample oral evidence of skull sites, ancestral graves, plantations etc., and there appears to me to have been no necessity for the Customary Appeal Court to visit the land. The fact that it did not do so is no good ground of appeal in this case and in this ground of appeal is accordingly dismissed."

This judgment, with which I entirely concur, makes it clear that the decision to view the land is a matter of discretion. Counsel for the Appellant appeared to be saying there was an obligation to view and that in the absence of cogent reason a failure to do so would divest the court of jurisdiction. He relied upon Coleen Properties Ltd v. Minister of Housing (1971) 1 All ER 1041. In that case an inspector for the purposes of the Housing Act 1957 had reached certain conclusions on the basis of evidence before him and his own observations of the property. The Minister of Housing and Local Government purported to reject the recommendation and, without any further evidence, to order compulsory purchase. The Court of Appeal held that as the Minister had no material before him upon which to form a different view to the inspector he could not order compulsory purchase. Apart from the fact that a view by the inspector is mentioned I can find very little in that case applicable to the present argument. Both courts below had abundant material upon which to reach their decision generally. On the limited decision as to a survey of the land, they had heard evidence about sites and properties and they therefore could exercise their discretion on the basis of what they heard. I cannot find that the exercise of discretion by deciding not to visit the land was a procedural defect such as to oust jurisdiction. Indeed I cannot find that there was, in view of the judgment, in NAISI LUNA, any defect at all.

I do not wish to be taken to encourage courts to refuse to visit land in such cases. I have found in my experience that it can be a very useful exercise. On the other hand it remains for the court to make up its own mind. In the circumstances of this appeal ground 2(a) also fails.

Point C Ground 2(b) was not pressed at the hearing. This involved a suggestion that the Customary Land Appeal Court did not give sufficient regard to the report of the Adjudication Officer in the 1969 proceedings. That report was referred to in the record of both courts. The Customary Land Appeal Court was clearly aware of it. What weight they chose to give it was a matter for them having read the record of the previous hearing before the Local Court and heard the evidence. I do not find this ground any more successful than Ground 2(a).

In conclusion I wish to make one observation. That is that I am surprised that throughout this long history more emphasis has not been given to the original Roviana Local Court decision in 1967. This was a court of competent jurisdiction which had reached conclusions about the land. It would seem arguable that it was the Adjudication Officer, if anyone, who was estopped from going behind that decision. I certainly hold the view that Customary Land decisions should be made by the Local Courts as the Act clearly indicates and others who must make decisions in relation to customary land should give, at least, great weight to such decision. Whether they are bound by them or not is not a point before me and one which I would have to consider separately.

In the event I am satisfied that these two cases were properly heard by the Vella Lavella Local Court and the Western Customary Land Appeal Court and that the decisions reached by those courts were decisions open to them.

The appeals are therefore dismissed and the decisions of the Courts below confirmed.

ORDER: Appeal dismissed with costs.