Damusi v Manehamosa [1990] SBHC 40; HC-LAC 006 of 1989 (24 July 1990)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 6 of 1989

DAMUSI

-v-

MANEHAMOSA

High Court of Solomon Islands
(Ward C.J.)

Hearing: 5 July 1990
Judgment: 24 July 1990

T. Kama for Appellant
Respondent did not appear

WARD CJ: This is an appeal from the decision of the Guadalcanal Customary Land Appeal Court. The only grounds urged are:

"1. That the customary land appeal court had erred in law in the following:

(b) in adopting the determination of the chiefs which had not been tested upon a hearing in the local court which has the power to decide on customary ownership.

(c) and upon accepting the chief's determination the court made the awards to persons who are not parties to the proceed-ings,

(d) when it failed to allow parties to this proceeding to make representation and receive any further submissions on the chiefs' findings,

(e) in the exercise of its appellate jurisdiction had incorrect-ly received evidence from the chiefs in their findings which do not form part of the record of deposition of the local court,

(f) that it wrongfully exercised its powers as an appellate court in paragraphs (b), (c), (d), and (e) above."

The respondent was served but has not appeared.

The Customary Land Appeal Court sat on 11th October 1988 to hear an appeal by the present respondent from the Guadalcanal Local Court over the ownership of part of Mambulu land. After the hearing and surveys of the land in question, the court gave a judgment on 17th October 1988.

That concluded:

"Having seen the land and after considering the evidence given in the local court we are satisfied that the whole of Mambulu land was originally Haubata land. We are also satisfied that a portion of the land was given to Albino's tribe, Kakau Vali Mauvo. That is the block from Bulohotosi to Saona. This land belongs to the respondent.

As to the rest of the land we cannot be so sure. It is a very large tract of land and an important land. The appellant claims to speak on behalf of Haubata, but will not name his sub-tribe. Yet it is clear that parts of the land are owned by the other sub-tribes of Haubata, including Haubata sub-tribe, Kakau and Simbo.

We do not have enough evidence before us to decide how the land is divided, nor have representatives of all the sub-tribes been given a chance to speak or show their tabu places. Therefore we intend to send this case to the chiefs before making our decision for further enquiry to be made.

ORDER:

The chiefs are to hear evidence, survey the land and cut the boundaries of Mambulu land in order to find out how the land is divided between the Haubata sub-tribes. This does not include the land from Bulohotosi to Saona which we are satisfied belongs to the respondent, Albino Damusi of Kakau Vali Mauvo. The chiefs are to report their findings to us, accompanied by a sketch map of the area. The court will then reconvene to make its decision on the ownership of the remainder of the land."

The chiefs replied to the court by letter dated 15th December 1988 which I set out in full:

"MAMBULU LAND

Following the request made in your letter of G.L.C/5 dated 24/10/88 we have now been able to produce a Comprehensive demarcation evidence of the Land at Mambulu. We have two separate hearing on which evidences were submitted and recorded.

We felt that our Jurisdiction in this particular case, was not to make any decision but to produce information relating to the Mambulu Land on which the Customary Land Appeal Court can rely on to make its decision.

The attached plan shows the major boundaries, owned by the different Tribes and Sub Tribes, and as much as possible these plot of lands are related to the Tabu places of the respective clans.

The boundary lines, are not as straight as those shown in the plan, because as you will appreciated that the customary boundaries are marked by natural features, such as stream ridges etc.

Accordingly the letter are as follows:

A -This plot as found by the G.L.C. belongs to the Kakau Valimauvo sub-tribe.

B -This block as supported by the evidence produced shows that the land belongs to the Simbo Tribe of which Januario Luma is the spokesman.

C&F-This is the block of land which the Haubata tribe rightly owned in accordance with the evidence produced at the time of fact findings and as you are aware, that Joseph Manehamo-sa is the spokesman, for the tribe.

D - The block marked "D" belongs to the Kakau sub-tribe of which Vuvulo is the representative.

E -This block also belongs to the Kakau sub-tribe, the descendant of Olebua and the oldest woman to date will be SABINA and TEKELA, and PANI PAHOLE would be the spokesman.

As we have already mentioned earlier, there is no firm decision on the hearings but the major boundaries shown and those sub-tribes shown are sought from the evidence produce at the sittings at Mbarana village on the 1st and 2nd of December 1988.

We hope that what we produced here will give the CLAC a much clearer idea of the land situation at Mambulu and as such may help them to know where to begin of and when a land case should be brought up in respect to this land."

On 20th June 1989 the court again sat. Both parties were present and the court showed the chief's finding and map to the parties.

I can deal with ground 1(d) immediately. The record shows that the present respondent said he had nothing to say about the chief's findings and then records the present appellant as saying -

"Albino: In the court order chiefs were told to divide Haubata land. They didn't do it properly. Blocks D and E belong to Kakau tribe. They are not Haubata. The disputed area is C and F. The Chiefs were not following the CLAC order properly. The court decision should only be between Kakau Vali Mauvo and Kakau represented by Joseph."

From that it is clear the parties were given an opportunity to make submissions on the chiefs' findings and that ground is dismissed.

The court then gave judgment and stated:

"The chiefs have complied with the order and have presented their findings and a map as Exhibits A and B. We have considered these carefully in relation to our previous determination and we congratu-late the chiefs on presenting their findings clearly and concisely. Having surveyed the land ourselves, and having heard the parties we find that we accept the findings of the chiefs. The whole of Mambulu land is divided between the appellant, the respondent and the Kakau sub-tribes. For our decree we refer to the map Exhibit A.

DECREE

(1) The block marked "A" from Bulohotosi to Saona is owned by the respondent from Kakau Vali Mauvo.

(2) The block marked "B" is owned by Simbo tribe and is not in dispute between the parties to this case.

(3) The blocks marked "C" and "F" are owned by the appellant, Joseph Manehamosa for the Haubata tribe.

(4)The block marked "D" is owned by the Kakau sub-tribe, Vuvulo and is not in dispute.

(5)The block marked "E" is owned by another Kakau sub-tribe and is not in dispute."

This decree, it can be seen, follows the findings of the chiefs.

I shall deal with ground (c) next. The complaint of the appellant here is that the final decision awarded areas of the land to people who were not parties to the dispute. It is settled law that these actions are inter partes and, as such, the court had no power to make a judgment affecting persons not present. In many cases, there may be parts of the land where the court refers to the ownership of others. In effect what it is doing is to state that the parties have established no rights over that land. That is binding on them but does not give any rights in itself to the other people named.

In this case the decision could be seen as a finding awarding the part of Mambulu land marked A to the appellant and the parts marked C and F to the respondent and not giving either party rights over the remaining areas.

It is clear that there is, and has been at no stage, any dispute over area A. According to the appellant, when he commented on the chiefs' map, the areas in dispute are areas C and F. The court ruled on those two areas and that decision binds the parties. It mentions there is no dispute in relation to areas B, D and E, presumably on the basis of the appellant's comment to the court, but such statements are not binding on the other owners. The court is simply saying that neither of the parties before it has a claim to those areas.

Ground (e) appears to be suggesting that the Customary Land Appeal Court should not have heard any evidence that had not been heard by the Local Court. That is not right. The Customary Land Appeal Court has the right to hear any evidence and may hear any further witnesses it, or the parties, consider relevant to the appeal.

The basis of ground (b) is the main thrust of the appeal here. It is suggested that, having sent the matter back to the chiefs for determination, the Customary Land Appeal Court should have allowed the parties to require the attendance of the witnesses who appeared before the chiefs for cross examination and that the court should have explained this to the parties. The appellant urges the failure to do this amounts to a failure to hold a fair trial.

Whenever a court hears evidence which might affect its decision, the parties should have a right to contest it. Thus they must be aware of the evidence. If, having heard it, they wish to contest it they must be able to do so and, if that means cross-examination of a witness, that must be allowed also.

In this case, all the information that the court received from the chiefs was shown to the parties. It is clear from the record that the parties were given an opportunity to contest it and, although the appellant disputed its accuracy, he did not seek to examine the witnesses. The court used the evidence, in conjunction with their surveys and the submissions of the parties, to reach their decisions.

I do not accept that the court is bound to advise a party of all his rights. In the Customary Land Appeal Court where there are no lawyers, it is only right that the court should take care the parties know and understand the proceedings but it would be going too far to suggest that they must explain every detail. Here they clearly showed the parties all the evidence they were relying on, they allowed comment and then reached their decision based on all the material before them. I cannot see that the failure specifically to tell a party that he may require the attendance of a witness that the court had not heard itself can amount to a failure to try the case fairly or in a manner that is manifestly just.

The appeal is dismissed. As the respondent did not appear, I make no order as to costs.

(F.G.R. Ward)
CHIEF JUSTICE