>
(1) waatin
disp dispute was whether the trees were in Rakwana or Tabakwakwa land, i.e.
the exact location
of the boundary. That was a clear case arising in
connn wittomard and the magistrgistrate sate shouldhould have refused
jurisdiction. The reference to a ‘land dispute’ was unfortunate because
s.231(1) of the Land and Titles Act is far wider.
(2) The test
esuggestggested by the magistrate, that one or other of the parties needed to
adduce evidence
that showed on the balance of probabilities that there
was a ge landute wt correct. If thaf that wast was the the required
standard the magistrate would be in the position of having to evaluate
evidence of customary matters in order
to decide if the standard has
been satisfied.
lass="Mss="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(3) If the evidence
rev reveals, prima facie, that the case affects or arises in connection with
customary
land the magistrate should refuse jurisdiction.
Appeal allowed. Decision of
Magistrates’ Court quashed.
class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
F. Waleilia for the
Appellants
A. Radclyffe for the
Respondents
WARD CJ: This is an appeal
against the decision of the learned Principal Magistrate (Malaita)
delivered on 1 October 1989.
The case was a claim for compensation for
two agua trees cut down and removed from Rakwana land and
judgment was given to the plaintiffs.
The apps against the
magistrate’s jurisdiction and the assessment of damages. On the fire first
matter the grounds
as amended are:-
1. The judgment was against
the weight of the evidence.
2. The court did not
have
jurisdiction to hear and determine the case in the light of evidence of
disputed rights over customary land.
Ground 3 was abandoned.
However the appeal has been based entirely on ground 2 and I deal with
that now.
At the hearing, the
plaintiffs case was that they owned the land on which the trees were
standing.ding. The defendants
admitted cutting the trees but said they were
on land owned by Alfred Arurumae and called him as a witness. He said
the trees were on his land because he knew the boundaries.
The learned magistrate had
bware of the possibility of the case falling within section tion 231 of
the Land and Titles Act and at the beginning of the record wrote:-
“Court: Preliminary
finding - whether jurisdictiohear case of trespass due
for conversion.
Defendants not
lan landowners, Question of boundary only relevant to establish defence. For
Defendants to adduce evidence
permission given.
class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In his jut he stated:-
“In this case the
Plaintiffs are claiming compensation for the cutting down of two Agua
trees. The defendants
do not deny they cut down the trees. They say they
had permission to cut them down from one Alfred Arurumae, the true
landowner.
With this defence I am
acutely aware of section 231 of the Land and Titles Aces Act. I am mindful of
the case
Manubili & Others v. Fenda and Mae v. Konihaka; Maeru v. Mindu
(1985-86)
S.I.L.R. 218. If this case involves a dispute about ownership of land
then I do not have jurisdiction. I said so in a letter to the
parties
dated 17th
May 1989 I take the view that I cannot make that decision in a vacuum.
An active judicial thought process must
take place. I must hear
evidence.
It mattersle that
the decision on whether I have jurisdictidiction or not affects the whole
defence. If I find
the court has jurisdiction then I effectively decide
there is no land dispute and the defence cannot succeed.
To begin with I heard
brief evidence from the parties and a defence witness, the supposed true
owner Alfred Arurumae.
The Plaintiffs produced a decree from the High
Court of 1968 which was by reference to a map. (Map A). The Defence
witness produced a map and nothing more. (Map B). He said he was the owner
of the land. I took the view that this
was not sufficient. A single bare
assertion such as “I am the true owner” cannot be sufficient evidence to
oust
the jurisdiction of the Court. If that were the case then the
situation would be chaotic. One party in any dispute would
simply have
to say that and the Magistrate would have to say 1 cannot hear this
case. I do not think that can
be right. I accept of course that in some
cases the magic words “land dispute” would not be relevant but in many
cases they would be.
<
Therefore having heard
brief evidence I decided that I could ould hear the case. I was mindful
throughout the
remainder of
the evidence of the fact that should one or other of the parties
adduce evidence that showed, on the balance of probabilities,
that there
was a genuine land dispute then 1 would have to stop the case and refer
the parties to the Local Court
by reasons of s.231 of the Land and
Titles Act. The parties would also have been reminded of the provision
of Local Courts (Amendment) Act 1985.”
Mr. Waleilia for the
appellants suggests the magistrate is wrong in ays. He says the use
of the words ‘land
dispute’ indicates that the magistrate has gone
beyond the scope of section 231 and confused it with the Local Courts
(Amendment) Act. He also urges that it was wrong of the magistrate to
put the burden on one of the parties to show on the balance of
probabilities there was a genuine land dispute.
Section 231(1) reads:-
(1) &nbbsp;& A local coal coal court
shall subject to the provisions of this section and sections 8D, 8E and
8F ofLocal Courts Act have exclusive jurisdiction in all matters
and proceedings of a of a civil nature affecting or arising
in connection
with customary land other than –
(a)p; any such
matterror pror proceeding for the determination of which some other provision
is expressly
made by this Ordinance; and
(b) &nbbsp; any matter oter or r or
proceeding involving a determination whether any land is or is not
customary
land.”
class="Mss="MsoNormal" style="line-height: 12.0pt; margin-top: 1; margin-bottom: 1">
The sections of the Local
Courts Act referred to set out the initial proceprocedure to be adopted for
the settlement of customary land disputes. Section 8C
defines customary
land dispute as “a dispute in connection with the ownership of, or, of
any interest in, customary
land and the nature or extent of such
ownership.”
Clearly, therefore, the
Local Courts Act deals exclusively with land disputes but section 231(1)
of the Land and Titles Act is far wider. It is unfortunate that the
learned magistrate referred only to a land dispute.
Having reviewed the
evidence, he dealt with the matter in this way:
“Can I say, on the
balance of probabilities, that the Plaintiffs have proved that the trees
were on their land?
This is another way of asking, on the balance of
probabilities is there a land dispute here? If 1 answer the first
question in the affirmative the answer to the second question need not
necessarily be in the negative. There could
be a land dispute between
the parties or the parties and a witness (as alleged in this case). If
there is I have
to be clear in my own mind that it does not impinge on
the present case in any way for that would mean that s.231 of Land and
Titles Act came into play.
Here in this case I have
to say that from the evidencidence I have heard I cannot say that on the
balance of probabilities
there is a land dispute involving the
Plaintiffs and Alfred Arurumae. The answer to the second question posed
above is no. I then go to the first question and on the evidence 1 have
heard I find that the trees, which the Defendants
admit they cut down,
belonged to the Plaintiffs. The Defendants are liable to the
Plaintiffs”.
clas class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The evidence itself had not
beend on a dispute over ownership of the land. It seemed to be o be
accepted by all
parties that Rakwana land was owned by the plaintiffs
and that the neighbouring Tabakwakwa land was owned by Arurumae.
Although the plaint
claimed in evidence that Arurumae had walked the spearline between those
lands and agreed
the trees were cut from Rakwana land, that was denied
by Arurumae.
In the defence filed by the
first apnt before the magistrates’ court hearing, he stated:-
“2 p; The land where
rhe tree trees are cut from is not on Rakwana land but is on Tabakwakwa land.
2 & p; &nsp;&nbssp; ssp; Tabakwakwa land
is owned by Alfred Arurumae.…”
0pt">
At the outset of the
hearing the defendant is rec as saying –
>
“Alfred Arurumae owns
land, gave permission for defendants to cut two trees”
It is clear that there is
not a land dispute in the sense of the Local Courts Ownership of
the the two areas
of customary land as a whole is accepted. What is in
dispute is whether the trees were in Rakwana or Tabakwakwa land. The
evidence shows there was a dispute as to the exact location of the
boundary.
That seems to me to be a
clear case arising in connection with customary land and the learned
magistrate should
have declined jurisdiction to hear the matter.
Whilst that disposes of t matter, I feel I should pass on to deal with the tehe test suggested by the
magistrate
that one or other of the parties needed to adduce evidence
that showed, on the balance of probabilities, that there was
a genuine
land dispute. Even correcting the unfortunate use of the words land
dispute, I cannot accept that is
the correct test. If that is the
required standard, in many cases, the magistrate would be put in the
position
of having to evaluate evidence of customary matters in order to
decide if the standard has been satisfied. That is what
section 231(1)
reserves for the local courts.
In many civil cases, the
magistrate will see the case falthin section 231(1) from thom the
documents filed. Where
he does not, if the evidence reveals, prima
facie, the case affects or arises in connection with customary land, he
must stop the case.
I allow the appThe
decision of the magistrates court is quashed. The parties should be
advised to take the
case to the Local Court.
lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Costs to be paid by
respond
[About the School of Law]
| [Courses Offered] | [Course Materials] | [Staff]
[Pacific Law Materials] | [Journal of South Pacific Law]
[Emalus Campus Library] | [Recommended Internet Links]
[Latest Additions] href="../../../search_/QUE_/QUERY.HTM">[Search the Site Site]
© University of the South Pacific 1998-20ont>
If you have any comments, suggestions or
difficulties with using this web site please email
Robynne Blake,
Internet Project Manager, The School
of Law, The University of the South Pacific or fax: (678) 27785
Last Update:
Friday, July 05, 2002 09:10
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1989/2.html
