Tubara v James [1994] SBHC 11; HC-LAC 003 of 1994 (11 May 1994)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 3 of 1994

DANIEL TUBARA

-V-

LESTER JAMES

High Court of Solomon Islands
(Muria CJ.)

Hearing: 11 April 1994
Judgement: 11 May 1994

Andrew Radclyffe for Applicant
James Remobatu for Respondent

MURIA CJ: On 11th April 1994, I allowed this appeal and said that I would give my full reasons at a later stage. I do so now.

The appellant in this case, Daniel Tubara, had been successful before the Guadalcanal Local Court which decided that he was the original owner of Vulamao Land. Against that decision, the Respondent appealed to the Guadalcanal CLAC which awarded the said land to him. The appellant now appeals to this Court against the decision of the CLAC.

In his Notice of Appeal, the appellant relied on five grounds of appeal. Mr. Radclyffe, however, centred his client's appeal on the argument that the CLAC was wrong to simply reverse the Local Court's decision after hearing mere submissions from the parties and without the benefit of listening and assessing the credibility of the witnesses, a process which the Local Court had clearly taken. In those circumstances, Mr. Radclyffe said, no reasonable tribunal could have made the findings as that made by the Guadalcanal CLAC.

For the Respondent on the other had, Mr. Remobatu submitted, inter alia, that the CLAC has power to reverse the Local Court's decision and that there was sufficient evidence before the CLAC on the record to warrant such a decision. Counsel further argued that the CLAC had the benefit of the records of the Chiefs hearing and that of Local Court. It was from those records that the CLAC found the inconsistencies in the appellant's story about his entitlement to the land in question.

This Court's power to interfere with the decision of a CLAC had been clearly stated in Buga -v- Ganifiri [1982] SILR 119 where it was held that the High Court could only intervene if the findings of the CLAC were such that they could not be reached by a reasonable tribunal. At page 122, Daly CJ said:

"This Court has only power to consider points of law (excluding points of custom law) or defects in procedure based upon written law. If no reasonable tribunal could reach the findings made by a customary Land Appeal Court on the evidence before it then it may be that this court could and should exercise its powers to intervene. In any other case for this court to say that it does not agree with findings of fact or custom reached by a customary land appeal court would be an assumption of powers which this court does not possess."

I respectfully accept what Daly CJ said in that case and must be borne in mind by those who come to this Court seeking to overturn a decision made by a CLAC.

In the present case, it is not disputed that the CLAC simply heard submissions from the parties and considered the records (including that of the Chiefs hearing) and decided to reverse the Local Court's decision and awarded the land to the Respondent. It is of course, within the power of the CLAC when deciding on appeals made to it from the Local Court, to consider the records of the Local Court and submissions upon those records. It can only hear new evidence if it wishes but application to call such evidence must be made by the party wishing to call new evidence showing good reason why the evidence was not called in the Local Court. see the observation made by Daly CJ in Temasuu -v- Taupongi [1983] SILR 103 at 105 where His Lordship said:

"The point upon which he sought to rely does however raise another procedural matter which has caused difficulties. This is the calling of evidence in the CLAC. The CLAC does not rehear the case in full but consider the record and submissions upon it. It can hear new evidence if it wishes but an application should be made to call such evidence and that application should show good reason why the evidence was not called in the Local Court. Of course, if the witness was sick or abroad or the evidence be given is as to something occurring after the Local Court hearing that may be acceptable. In the absence of circumstances such as these leave should be refused. It would be wrong to let a party deliberately keep back a witness for an appeal."

Having made those observations, I now consider what occurred in this case. It is clear, as I have already said, that the CLAC considered the records and heard submissions made by the parties. It is also true to say that the CLAC had accepted and considered the record of the hearing before the chiefs on 19/8/92. I will say something about the use of the records of hearings before the chiefs later.

One of the grounds of appeal before the CLAC was the complaint made by the appellant (who is the respondent in this Court) that the Local Court erred in giving more weight to the respondent's (who is the appellant in this Court) witnesses. In respect of that, the CLAC stated:

"We have read and considered the respective statements of the respondent's witnesses and found that most of the witnesses have knowledge about the various activities carried out by the ancestors of the respondent within the disputed land."

If anything, that finding of the CLAC is indicative that on the record of the court (Local Court) below the CLAC found the respondent's (now appellant) and his witnesses' evidence to be of sufficient weight. That finding supports the decision reached by the Local Court.

The CLAC went on and said that the respondent's (now appellant) witnesses were not convincing in so far as their knowledge was about the history of the land. For the reasons which will become apparent later, it is not surprising the CLAC came to that almost opposite finding. The CLAC came to that conclusion, not based on the evidence as contained on the record of the Local Court but based on what they said was the "inconsistent.......... statement previously given during the custom hearing." Obviously that custom hearing must be the hearing before the chiefs on 19 August 1992 (the Local Court judgement indicated that the Chiefs Hearing was on 3rd to 5th June 1992).

Where a party or parties before the CLAC do not seek to call new evidence, the CLAC should only consider the record of the Local Court and the submissions made upon that record. The CLAC is not entitled to accept extraneous materials that had not been put before the Local Court.

When one considers the record of the Local Court hearing the finding by that Court was clearly supported by the evidence presented before that court. It was a finding made after listening to and assessing the evidence given by the witnesses from both sides.

The evidence as contained in the record of the Local Court hearing had been considered by the CLAC. Unfortunately it allowed itself to be persuaded by extraneous material put to it by the respondent. That material was the record of the Chiefs' hearing.

The CLAC clearly relied on the record of the Chiefs' hearing in order to reverse the Local Court's decision. A clear evidence of this can be seen when deciding whose devil was Sipolo Baghovu. That CLAC said:

"Who is more likely to be of Sipolo Baghovu? We have to decide this on the basis of what both parties have stated in the custom inquiry, in the Local Court and in this Court.

The respondent had made inconsistent statements in the custom inquiry and in the local court regarding his place of origin, one of the significant factor as far as land ownership in the custom of this island is concerned."

It must be pointed out that, records of the Chiefs hearing including the decision made by the chiefs are not part of the Local Court records unless the chiefs decision has been wholly acceptable to both parties and a copy of thereof has been sent to the Local Court within 3 months from the date of the decision and recorded by the Local Court in accordance with S.8F of the Local Court (Amendment) Act 1985. Thus unless the records of the proceedings before the Chiefs including the decision reached thereunder have satisfied the provisions of S.8F of the 1985 Act, such records are inadmissible as evidence in an appeal to CLAC and must not be accepted.

In this case the CLAC had fallen into this error.

When one considers the evidence as contained in the record of the Local Court excluding that of the record of the hearing before the chiefs, I feel the CLAC could not have reached the decision it came to. In those circumstances the order must be that this appeal is allowed and the matter remitted to be heard de novo by the CLAC differently constituted.

Costs to the appellant.

(G.J.B. Muria)
CHIEF JUSTICE