Maerua v Kahanatarou [1983] SBHC 34; [1983] SILR 95 (18 April 1983)

[1983] SILR 95

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No.2 of 1983

MAERUA

v

KAHANATAROU

High Court of Solomon Islands
(Daly C.J)
Customary Land Appeal Case No.2 of 1983

18th April 1983

Customary land - finding of custom by High Court - whether binding - practice - power of magistrate to quash local, court proceedings in land case - section 231 Lands and Titles Act section 21 Local Courts Act.

Facts:

In 1974 the Appellant, claiming through the male line, won Customary Land in the local court as against one WARI. In the High Court (there being at that stage no Customary Land Appeal Court) on appeal in 1975 it was said that the court was satisfied that the appropriate custom was patrilineal. In 1976 the Respondent claimed the land against the Appellant in the Local Court on the basis of descent through the female. The Local Court found in her favour. The Government Agent on being approached by the Appellant quashed that finding on review in exercise of his powers under section 21 of the Local Courts Ordinance. In 1982 the present parties again appeared in the local court to contest the land. On a preliminary point the court found that the Appellant was not related to WARI and made a decision on the substance of the dispute in the same terms as the 1976 decision. The Respondent appealed to the Customary Land Appeal Court (“the CLAC”). That court considered the appeal as being in relation to the 1976 proceedings before the Local Court as well as the 1982 proceedings. The decisions of the Local Court in 1976 and 1982 were upheld, the C.L.A.C. deciding (a) that the appropriate descent was through the woman (b) that the Respondent was not related to WARI (c) that the decision to quash the 1976 court proceedings by the Government Agent was a nullity. The Respondent appealed to the High Court.

Held:

As to finding (a), although the High Court in 1975 had made a finding that the descent was patrilineal, an examination of the proceedings showed that the point was only raised in argument the High Court and there was no evidence of the custom on which to base the finding. It was therefore open to the local Court and C. L.A. C. to reach a different finding after consideration of the evidence as to custom. Finding (b) was a finding open to the court on the evidence with which the High Court would not interfere. Finding (c) was correct. Section 231(3) of the Land and Titles Act provided that a decision as to customary land by the local court “shall be final and conclusive and shall not be questioned in any proceeding save (the appeal procedure provided)”. A decision to quash under section 21 of the Local Courts Act was a “proceeding” and therefore excluded by section 231(3). Observations on how jurisdiction to quash should be exercised.

Appeal dismissed.

Cases considered:

Cheney -v- Spooner (1929) 41 CLR 552

Both parties in person.

Daly CJ: This is a case concerning KUHE land in West Bauro, Makira. Kuhe is land which has been, a number of times, before courts and the history of that litigation is important. But before I deal with it I wish to make the powers of this court clear. Under S. 231B(3) of the Land and Titles Act this court can only consider whether the decision of the cost below was “erroneous in point of law” (not including an error of customary law) or whether there has been “a failure to comply with any procedural requirement of a written law”. If the Customary Land Appeal Court has reached a decision, supported by evidence, about the custom applicable or the relationship of individuals or lines, this court does not have power to interfere.

Bearing that in mind, I now turn to the history of the litigation. On 8th November, 1974, the Bauro Local Court heard a claim (“the 1974 Local Court Case”) by Robert WARI brought against the present Appellant Wilson MAEHUA that he, WARI, owned the land. WARI claimed through a number of female ancestors and his father. The Appellant claimed through male ancestors. The Local Court said they believed the Appellant but not WARI and therefore the Appellant was found to be the landowner.

There was an appeal to the High Court. The then Chief Justice said on 3 April 1975 in giving judgment that the claim by WARI was that devolution in that part of San Cristobal (Makira) was matrilineal and that the Appellant claimed it was patrilineal. The Chief Justice went on: -

“It is to be noted that nowhere in the case in the court below did the Appellant, Robert Wari, explain that he based his claim on the fact that the custom of descent was matrilineal. He only raised that contention in this court. That would have been essentially a matter for the Local Court to decide. Certain it is that the Local Court at no time accepted that descent was anything but patrilineal and nothing was said by either side to suggest it. I am quite satisfied that the custom in that part of San Cristobal is as the court accepted it to be - namely patrilineal.”

The Learned Chief Justice then went on that even were it not, as WARI was claiming through his father, his claim could not stand.

There are two important matters to bear in mind when considering that decision. First, the powers of the High Court were on 3rd April 1975 different from my powers today: Under section 231 (4) (b) there was at that time a direct appeal with leave from the Local Court to the High Court and the High Court under section 231 (5), had a wide discretion to consider any point raised: not just points of law and procedure. The second is, as the learned Chief Justice himself says, there was no direct evidence in the Local Court as to the nature of the custom and the Local Court in its decision merely said it believed one side and not the other. In its judgment the Local Court in fact says nothing about patrilineal or matrilineal descent except by implication in that it believed the side which claimed exclusively male descent. In the High Court in his speech WARI stated that he claimed that “the custom was descent by female” but the Appellant said nothing about it at all. So there was no evidence in the High Court either as to custom descent. It follows that there was neither evidence nor full argument in either the Local Court or the High Court on the question of patrilineal as against matrilineal descent in relation to Kuhe land.

In 1976 the present Respondent brought a claim in Bauro Local Court in relation to the same land against the Appellant. The case was heard on 19th March 1976 (“the 1976 case”). The Respondent claimed by virtue of descent through females (although males are also said to have “owned the land”) and the Appellant claimed from a grandfather of his mother and uncle. The Local Court decided that the Respondent “is head of the land.”

On 23rd April 1976 the Appellant went to see the Government Agent (Eastern). The Appellant complained that he had the land he had won in the High Court “taken away from him.” The nub of his complaint, as appears in subsequent correspondence, was that the Respondent was an “immediate” relative of WARI. The advice of the Attorney-General was sought. By the letter dated 17th November 1976 the Government Agent was advised as follows: -

“Under section 21 of the Local Courts Ordinance (Cap. 46) you have power on your own motion to review any proceedings of a local court. If you are satisfied that the case on 19th March 1976 concerned the same land and parties then you have power to set aside that decision and (sic) that the High Court decision still remains in force.”

Acting on this advice the Government Agent set aside the decision of the Local Court.

On 14th September 1982 the case came again before the Bauro Local Court with the present parties. The Court at that stage considered only a preliminary point that was, has the Respondent any relationship to Robert WARI? If she had not, it was accepted that the Local Court must follow the decision made on 19th March 1976 between the same parties. After reviewing the evidence the court decided on 15th Sept 1982: -

“Having considered this carefully the court is satisfied and come to the conclusion that Robert is not related to Ellen in custom, therefore right of ownership is also unrelated likewise.”

The court then found in the same terms as the 1976 Local Court decision. There was an appeal to the Makira Customary Appeal Court (“the CLAC”). Indeed it became two appeals “as leave was sought, and granted, to appeal out of time against the 1976 decision on the basis that the Government Agent’s decision had pre-empted an appeal in 1976. There is no complaint about this course and I do not have to consider the legality of it; it was obviously a desirable course in fairness to all parties. Thus the court considered the substantive issues of ownership as well as the relationship between WARI and the Respondent.

Having considered all the evidence, on the question of relationship the court decided that “the rights to ownership in property are completely different” and therefore the Respondent could properly contest the land with the Appellant. On ownership generally the CLAC came to a very firm decision. I read from the judgment given on the 3rd December, 1982: -

“Appeal Point Five

The question of ownership of this land is one that has taxed us considerably. In essence the Appellant claims ownership of land through a patrilineal system whilst the Respondent claims through the side of the woman. Both parties claim that their ancestors originate from Kute. Their stories of their ancestors' journey from Kute to the coast is remarkably similar. Both parties claim to own the stone and ngali nut trees which still exist deep in the bush.

The fact is that the custom of Makira Island - and this part of Makira Island - is to follow the woman. It is matrilineal system. The patrilineal system is from Ulawa and Malaita. It has small place in Arosi II - but not in Bauro. We are bound to find that this land belongs to Kahanatarau. Whilst we have every sympathy for the Appellant any other decision would be a recognition of a custom which does not exist.

We note that there are three existing developments in the land. To avoid future conflict we propose to make a ruling on these three areas.”

Subsidiary rulings were also made.

It would be surprising if a history of litigation of this kind did not produce some interesting legal points. In this case it has. The first point for decision is, was it open to the C.L.A.C to find that there was a matrilineal system in this part of Makira in view of the decision of the High Court on 3rd April 1975 that the custom was patrilineal? Although it is clear that the High Court in those days did have power to make decisions on custom, unlike the present High Court, everyone would, I think, agree that decisions of the High Court in such terms on custom should be approached with caution. The weight to be given to such a decision must be seen against the case in which the decisions were reached. One must ask was it a decision on a matter raised in court and argued by the parties? Was there substantial evidence of the custom? There could of course, be no assumption that the Chief Justice knew the custom from his own knowledge. The answer to each of these questions in the present case is, no. The only basis for the High Court’s finding on the custom, which was in any event not the only reason for the decision, was an inference from the judgment of the Local Court, a judgment expressly founded entirely on credibility of witnesses of fact. In those circumstances I cannot give the words used by the then Chief Justice on the subject of custom the binding effect claimed for them by the Appellant. The CLAC was created to take out the hands of the High Court matters of custom and for CLAC to be bound by a decision of the High Court on custom reached in circumstances such as this would be most unsatisfactory. The CLAC quite properly gave the High Court decision such weight as it deserved and reached their own decision. As there was evidence upon which they could do so this Court cannot interfere.

The second point is whether the CLAC were right in concluding that the decision of the Government Agent to set aside the 1976 Local Court judgment was wrong in law and a nullity. Jurisdiction in customary land cases is statutory. It is created by s. 231 of the Land and Titles Act: -

“231 (1) 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 Ordinance; and

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

(2) A local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Ordinance.”

By section 18 Act 18 of 1972 (which also established the CLAC and the present appeal structure and which came into force on 1st July 1975) and the following subsection was inserted in section 231: -

“(3) The decision of a (local court) given in exercise of its jurisdiction under this section shall be final conclusive, and shall not be questioned in any proceeding whatsoever save an appeal under section 231B.”

The Government Agent purported to act under section 21 of the Local Courts Act which reads: -

“21. Every magistrate shall at all times have access to local courts in his district and to the records of such courts, and on the application of any person concerned on of his own motion may -

(a) revise any of the proceedings of a local court, whether civil or criminal, and may make such order or phrase such sentence therein as the local court could itself have made or passed provided that no sentence of fine or imprisonment or other sentence in any criminal proceeding shall be increased without first giving the accused an opportunity to be heard; and provided further that in any such sentence shall be increased upon revision by a magistrate, there shall be an appeal from the order of the magistrate to the Chief Justice, who may reduce, remit, or increase any such sentence;

(b) order any case to be re-tried either before the same court or before any other local court of competent jurisdiction or may at any stage of the proceedings, either before or after judgment has been delivered, transfer any case for hearing before a magistrate’s court...”

The Appellant relies upon the wide terms of that section.

The first question to ask is, is action taken under section 21 of the Local Court’s Act a “proceeding”? In Australia the use of that word in an Act has been said to indicate “merely some method permitted by law for moving a court or judicial officer to some authorized act, or some act of the court or judicial officer” (Cheney v. Spooner (1929) 41 C.L.R. 552 at p. 536). I would give the word “proceeding” used in section 231 (3) of the Land and Titles Act a similar wide meaning and therefore hold that review of a local court decision, being an act of a judicial officer, is a “proceeding”. It follows therefore that the express terms of section 231(3) prohibit the questioning of a local court decision made in exercise of its jurisdiction under section 231 by means of review proceedings under section 21 of the Local Courts Act.

I should add the words of section 231(3) of the Land and Titles Act seem to me to be clear beyond peradventure. Whether or not exercise of the power under section 21 of the Local Courts Act is “proceedings” to hold that the power contained in that section was exercisable in relation to “exclusive” statutory jurisdiction with its own separate appeal structure (an appeal structure in which a magistrate plays a part as a member of an appeal court) would, in my judgment be to do violence to the clear terms of section 231 and the subsequent sections. It would need express words to incorporate in the structure created by those sections the review process contained in section 21 of the Local Courts Act embodying, as it does, arbitrary powers vested in an individual who might have no relevant knowledge of custom at all. In the absence of such express words, as well as for the reason I have already given, I uphold the decision of the CLAC that the purported setting aside of 1976 Local Court judgment was a nullity as an act done without legal power.

For the guidance of magistrates who seek to exercise the review powers on a proper occasion, I should also say that an order that a decision of a local court be set aside without more seems to me unattractive course even if contemplated by section 21 of the Local Courts Act. The section states that a magistrate “may revise ... proceedings ... and may make such order ... as the local court could itself have made...” There is also power to order a retrial. Simply to set aside proceedings in a case is to deny recourse to proper process as a party is entitled to have an order made upon his suit even if it be an order of dismissal. In this case, had the magistrate had jurisdiction, the least order he could have made was to set aside the decision of the court and substitute for it a finding that the case was barred as having been disposed of in previous proceedings. However, in my view, the proper order would have been an order for retrial to ascertain whether the plea of estoppel has made out on the facts.

A further point is taken. It is of less substance. This is that Mr Willie RORA sat in all three local courts, that is, in 1974, 1976 and 1982. It is said he should not have done so. The time for such an objection is to the court hearing the case. The Appellant was present on each occasion Mr RORA sat, so a claim that he did not know of Mr Rora’s presence at earlier cases is not correct. In any event, there is nothing wrong in law for the same justice to sit on cases concerning the same land; indeed it is often desirable that he should do so. Retrials may be a different matter but that point does not arise here. This point is dismissed.

The remaining points taken by the Appellant that the real custom is patrilineal and that the court should have found a sufficient relationship between the Respondent and WARI are matters of custom and evidence which, as argued, are not within the jurisdiction of this court.

The appeal is therefore dismissed with costs to be taxed if not agreed. Deposit of costs, if any, to be paid out again these costs.