Regina v Customary Land Appeal Court, Ex parte Talasasa [1987] SBHC 3; HC-CC 135 of 1986 (1 January 1987)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 135 of 1986

BETWEEN:

REGINA

AND:

CUSTOMARY LAND APPEAL COURT, WESTERN PROVINCE,
AND BIKU (AND OTHERS)

EX PARTE: TALASASA (and others)

(Decided 1987)

(WARD CJ): This is an application for certiorari to remove and quash the decision of the Customary Land Appeal Court on as appeal to it from the Roviana Area Council under section 5 D of the Forests and Timbers Act 1977.

The applicant submits 6 Grounds for relief:

"1. As to the decision in favour of Simon Mamupio the said Simon Mamupio was not a party to the original proceedings and decisions made by the Roviana Area Council nor was he an appellant to the Customary Land Appeal Court (Western) and consequently the Customary Land Appeal Court (Western) was not entitled to and had no jurisdiction or power to make the decision it did or any decision in his favour.

2. As to the decision in favour of Peter Siga the Customary Land Appeal Court (Western) had no jurisdiction to make a decision in his favour as they were bound by the decision in Customary Land Appeal Court (Western) 2/80 between John Kevisi (the brother of Peter Saga) and Milton Talasasa and Jacob Zingihite which decision was binding on the finding of the source of descent being matrilineal and on the ownership of the area in consideration in Customary Land Appeal Court (Western) 1/84.

3. As to the decision in favour of Rex Biku the Customary Land Appeal Court (Western) had no jurisdiction: to make a decision in his favour as against Jacob Zingihite as they were bound by the decision of the High Court in R.C. N.L.A. 9/71 between Jacob Zingihite and Edwin Biku (the father of Rex Biku) the said decision being binding both on the issue of the descent source being matrilineal and as to the ownership of the area in consideration in Customary Land Appeal Court (Western) 1/84.

4. The Customary Land Appeal Court (Western) had no jurisdiction or power to consider evidence or documents other than those put before it by the parties to the case and exceeded their jurisdiction by proceeding by way of an inquiry.

5. That there was a real likelihood of bias in the decision by two members of the Customary Land Appeal Court (Western) namely Rimu Baizovalei and Japhet Lilito.

6. That the Customary Land Appeal Court (Western) wrongly stated that the position of Tirokiaba still had no relevance to the case and wrongly refused to consider a complaint by John Talasasa in a letter to the Clerk and President of the Court dated the 29th of June 1985 as to the position of the said hill."

By agreement, counsel only sought to argue grounds 1-4 and 6 leaving the ground relating to bias to be argued should it be necessary once this Court has decided the other matters.

The appeal to which objection is taken was from an application made under section 5 B(1) of the Act by Kazukuru Left Kand Land Investment Ltd for a licence to acquire timber rights over the area of the application. The Roviana Area Council conducted a hearing under section 5 C to determine who was lawfully entitled to grant timber rights in the application area and their decision, in favour of the present applicants, was delivered on 25th July 1984.

An appeal was filed in August and the hearing started on 31st January 1985. There were various sittings of the court until judgment was given on 14th November 1985 allowing the appeal and giving rights to the present 2nd respondents.

The CLAC Judgment pointed out that "Kazukuru land has been the subject of more litigation, than any other piece of land in the Solomon Islands today. It is not surprising, therefore, that its legal history is complex and confused." The Court then listed no less than 23 cases and enquiries that related to the area as a whole. No doubt with that in mind, they set out to consider in great detail the matters appealed and produced a carefully reasoned and prepared judgment running to 59 pages of typescript.

The section headed "Conclusions" begins with the words "This judgment is not intended as a definitive "case study" of Kazukuru land. The time and resources available to us have been limited. The issues before us have also been limited. It may be, nonetheless, that it will succeed is laying down a new foundation which future inquiries, agreements and historians will take as their lead." They had also acknowledged earlier in the judgment that they had made a number of recommendations and comments obiter concerning issues other than the matter of the appeal and other Kazukuru land outside the application area.

It has been suggested by counsel for the applicants that tap CLAC showed an excess of zeal and this has caused them to go wrong. Whether they went wrong is a matter I shall deal with in this judgment but I hope nothing I state shall be taken as giving support to a suggestion of excess zeal. Too often the courts are criticised for taking too narrow a view of complex matters. In this case the CLAC was considering a very wide and difficult case. In order to assess the position properly, they considered a range of matters some of which turned out to be unnecessary or irrelevant to the matter in hand but, in a case such as this, such a conscientious approach was entirely laudable.

The relevant part of section 5 D of the Forests and Timber act reads:

"5D (1) Any person who is aggrieved by any act or determination of an area committee under section 5C may, within one month from the date of the determination, appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal.

(2) any provision in any other law to the contrary notwithstanding, the order or decision of a customary land appeal court on any appeal entertained by it under sub-section (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

Under the Constitution, the High Court has a supervisory jurisdiction over any subordinate court and may issue such writs as it may consider appropriate to ensure that justice is duly administered. Thus, an application will always lie to this Court for certiorari but it will only be granted in limited circumstances and, in particular, should not be seen as a means to provide the appeal excluded by section 5D.

Ground 1 of the application is based on a suggestion that the CLAC exceeded its jurisdiction by including Simon Mamupio in their final decree. That decree reads:

"l. The persons entitled to grant timber rights in the application area (described in the judgment) are as follows:-

1) Jacob Zingihite (As Land Guardian for Kazukuru).

2) Rex Biku (on behalf of Chief Edwin Biku of Munda/Kazukuru.

3) Peter Siga (as Chief of the Kindu/Kazukuru).

4) Simon Mamupio (As Chief of Dunde/Kazukuru representing Hapa Hapa's generation.)

5) John Talasasa (As representative of the patrilineal descendants of Kirirande).

On behalf of the Kazukuru Tribe.

2. These rights are to be exercised jointly by unanimous consent."

It is contended for the applicant that, as these proceedings are inter partes, the Court could not make a decision which affects any interest which third parties may have in the subject matter. Counsel for the 2nd respondent suggests that, whilst that is true for appeals under the Land and Titles Act, the procedure under the Forest and Timbers Act prior to appeal is a public inquiry and, therefore, the appeal cannot be so confined.

I cannot accept that. Once the matter is taken on appeal by a person aggrieved, it becomes an action to determine his rights to grant timber licenses and, as such, is clearly inter partes. However, this Court must decide whether the decree did affect the interest of a third party.

It is clear that the CLAC found that whilst the various parties and rights in the area, none had more than partial rights. It would defy common sense if, having reached such a conclusion, they should give a judgment omitting any mention of the limiting factor. All they have done here is to identify who should have the fifth right. In any subsequent action by or against Mamupio this would not be binding and neither could he argue res judicata.

The application on this ground is refused.

Ground 2 and 3 both raise the question of res judicata and suggest that the CLAC exceeded its jurisdiction when it found it was not bound by the earlier decisions in CLAC Case No. 2/80 and High Court N.L.A 9/71.

In this judgment, the CLAC dealt with the topic of res judicata under a separate heading. Having correctly quoted the principles as stated by Daly CJ in Talasasa v. Paia and Anor (1980/81) SILR 93 at 100, they went on to apply those to the various cases they had already listed.

In relation to 9/71, they state (at p.13):

"In deciding whether the decision is binding as between Biku and Zingihite, we must first decide whether the cause of action before us has been decided with certainty by a previous court of competent jurisdiction."

That is the correct test. In order to satisfy it they analysed the judgments in relation to the exact area of land with which they were concerned and, after they had done so in case 9/71 stated:

"Try as we have to reach some sensible interpretation of this decision, we cannot say which area of land it applies to."

Whether the earlier cause of action or point in dispute related to the same area was a question of fact and there was evidence before the court on which it could decide that fact. Whether they decided it correctly is not a matter this Court will consider in an application for certiorari.

In dealing with CLAC 2/80 they found "the Court decreed that the Kindu people, represented by Kevesi had primary rights within the area outlined in Dan Iabule's letter (which lies outside the application area) and secondary rights in the rest of Kazukuru Left Kand Land. It should be noted that no award of primary rights in rest of Kazukuru was made. The part becomes of considerable importance when one fully understands the complex and unique tenure system in Kazukuru. In so far as it goes we consider ourselves bound by this decision as between the appellant Kevisi (and Siga his brother) and Zingihite."

They based this on a passage in the judgment in that case (2/80) which they quoted at p. 9 of the judgment and which I do not need to repeat here.

It is clear that the court did feel it was bound and has applies it in reaching their decision and to that extent ground 2 misstates the position.

Grounds 2 and 3 also include the suggestion that these cases had ruled that descent was matrilineal in Kazukuru and the CLAC were bound by that.

The CLAC found, on this matter that they were not necessarily bound by the decision of the High Court on such matters of custom and quote the following incomplete passage of the judgment of Daly CJ in Maerua v. Kahanatarou (1983) SILR 95 at 99.

".... The CLAC was created to take out of the hands of the High Court matters of custom and for the CLAC to be bound by a decision of the High Court on custom... would be most unsatisfactory".

Whilst it does not affect the outcome, they take the wrong points from this passage as a whole because the words omitted are "....reached in circumstances such as this..."

The learned Chief justice was warning; that decisions of the High Court on custom should be approached with caution and the local court and CLAC are entitled to reach a different finding on the evidence before them.

"The weight to be given to such a (High Court) decision must be seen against the case in which the decision was 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? .... The answer to each of these in the present case is, no, ....in those circumstances I cannot give the words used by the then Chief Justice on the subject of custom the binding effect claimed to take out of the hands of the High Court matters of custom and for CLAC to be bound by a decision of 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 on which they could do so, this court cannot interfere."

Perusal of the judgment of Bodilly CJ in 9/71 shows that he based his decision entirely on article by Waterhouse in an anthropological magazine "man" of 1931 and a passage by C.M. Allan for a special Land Commission in 1957. He bases the 'bland decision' (as it was described by the CLAC in the present case) on nothing else and, as such, the CLAC were right to evaluate it and then reach their own decision based on the evidence before them.

The application on grounds 2 and 3 fails.

I must confess that Ground 4 reads a little strangely following straight after grounds relying Bodilly CJ's ruling on lineage in 7/81. Objection is taken in ground 4 to the consideration by the CLAC of evidence and documents other than those put in by the parties. The documents referred to are writings by various authors including the two used by Bodilly CJ in that case.

Counsel suggested to this Court that the reference to these documents in the judgment took the applicants by surprise and they were not able to argue on their reliability or the sources on which they were based.

I find the suggestion they were taken by surprise is not supported by the judgment. At page 31 the CLAC lists the various points to be considered in relation to lineage. In referring to Nocourt, the judgment notes that the respondents (the present applications) question the impartiality of Nocourt's sources and suggest that Waterhouse's comments are equally questionable because of a suggestion that his source was none other than the factor of one of the respondents.

It is clear from the record that the parties were given and took the opportunity to challenge and answer these writings and the CLAC considered their answers along with the evidence. That still leaves the question, however, should the Court have considered these documents in the first place? Numerous English cases make it clear that, if the court bases its decision on extraneous considerations which it ought not to have taken into account, then its decision may be quashed on certiorari.

Did the CLAC in this case base its decision on these matters and were they extraneous?

Where the court, as here, is faced with two parties simply making diametrically opposed claims, now is it to proceed to determine the matter? By the very nature of these cases, the normal strict rules of evidence cannot apply. Questions of genealogy, custom and descent are all to a greater or lesser extent based on hearsay. The Court frequently has to decide between conflicting claims neither of which will or can be proved by normally admissible evidence.

In such cases they must be able, as the CLAC did in this case, to consider earlier court cases and statements made by the parties in the present case to assess their consistency or truthfulness. Similarly, they must be able to look at other writings on the matter, subject of course, to the right of the parties to comment. Thus, whilst these matters may be extraneous, the court must be entitled to consider them. Having done so, in this case it is clear that they did not base their decision on the outside sources. They considered them together with the earlier cases, the evidence of the parties and their witnesses in this case and the genealogies presented to the court are based their decision on the assessment of them all.

Under the Forest and Timbers Act, the hearing before the Area Council which was the subject of appeal is clearly a public inquiry which can cover a wide range of topics. I feel it would be strange if a "person aggrieved" who appeals to the CLAC could then put the appellate court in the position of having to consider and possibly revise the decision of the inquiry but basing their decision only on specific parts of the evidence dictated by the interested parties.

The CLAC was entitled to govern, within the limits of natural justice, its own rules of procedure. I do not find the consideration of this evidence was in excess of jurisdiction or in breach of natural justice.

This ground fails.

Ground 6 refers to an alleged mistake of fact by the CLAC. This court will not interfere with such a decision in an application for certiorari unless it is clear on the record that it was reached by some improper means. Counsel has not been able to point to anything that suggests an improper approach save to say that the court refused to consider a letter on the matter from the applicant.

It is clear that court decided as a matter of fact that the position of this hill was irrelevant. There was evidence on which they could do it and this Court will not, therefore, question their conclusion. Having decided the position of the hill was irrelevant to the matter they were considering, they were perfectly entitled to refuse to consider further matters relating to it.

This ground also fails.

The application is refused on ground 1- 4 and 6.

Adjourned to Gizo on 23.9.87 to consider ground 5.

THE COURT