Urobo v Paga [1994] SBHC 57; HCSI-LAC 5 of 1994 (1 August 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.5 of 1994

TIMOTHY UROBO

-v-

STEPHEN PAGA

High Court of Solomon Islands
(Palmer J.)
Land Appeal Case No.5 of 1994

Hearing: 28th July 1994
Judgment: 1st August 1994

A. Radclyffe for Appellant
T. Kama for the Respondent

PALMER J: The Appellant, Timothy Urobo, appeals against the decision of the Guadalcanal Customary Land Appeal Court (CLAC), in respect of Ravu Land, decision delivered on the 28th gay of October 1993 on the following grounds:

1. The CLAC erred in law in accepting the Respondent's appeal from the Local Court to the CLAC on the grounds that it was not filed within three months and that the notice of appeal filed by the Respondent was unsigned and undated and not filed at the same time the appeal fee was paid on 20th August, 1993.

(Note, ground (2) had been formally withdrawn before the hearing.)

3. The CLAC’s judgment is not a decision that a reasonable tribunal could have reached on the evidence.

4. The CLAC listed the case for hearing at 9 am on 20th October, 1993 but the Appellant was not given a copy of the notice of appeal until the morning of 20th October, 1993 so he did not have time to prepare his case.

5. On 20th October, 1993 the Respondent failed to attend Court. Instead of dismissing the appeal for non-attendance the Secretary adjourned the case until 9 am on 21st October, 1993. The Appellant was not given an opportunity to oppose the adjournment.

6. The CLAC had no evidence before them as to the boundaries of Ravu Land. No survey was carried out by either the Local Court or the CLAC. The Appellant Mr Timothy Urobo lives in Ravu village and yet the CLAC awarded the land to the Respondent who lives in a different place far away from Ravu Village.

The Customary land dispute first came before the custom chiefs on the 24th August 1992 pursuant to the Local Court (Amendment) Act, 1985. Ownership of the land was awarded in favour of Cecilia Vogithia, the mother of the Respondent in this case. Timothy Urobo was not satisfied with the decision of the chiefs and so brought the matter to the Guadalcanal Local Court. This was heard on the 14th June 1993. Judgment was given in favour of Timothy Urobo as the Primary landowner, with Cecilia Vogithia given secondary rights. The matter was then appealed to the Guadalcanal Customary Land Appeal Court. The CLAC quashed the decision of the Local Court and reversed it. What that means is not clear, but possibly it meant that the ownership rights were reversed; that is, the primary rights now went in favour of Cecilia Vogithia, with secondary rights going to Timothy Urobo.

I will now deal with each appeal point in turn.

GROUND 1:

The son of Cecilia Vogithia, Stephen Paga gave evidence under oath that he filed the notice of appeal with the CLAC Clerk on the 20th of August, 1993 the same day on which the appeal fee was paid. It was not disputed by Stephen Paga that the notice of appeal had not been signed nor dated. He pointed out under oath that it was an oversight on his part.

His evidence has not been challenged by the Appellant, and accordingly must be accepted as correct. I should point out here that the fact that the notice of appeal had not been signed and dated should have given sufficient cause to the CLAC Clerk to reject the notice of appeal. The omissions are material defects which in certain circumstances could have rendered the notice of appeal of no effect. In the circumstances of this particular case however, I am satisfied the defects do not render the acceptance of the notice of appeal a nullity. This appeal ground therefore must be dismissed.

GROUND 3:

What was the evidence before the CLAC? There was no fresh evidence called and accordingly, the only evidence available before the CLAC was the record of proceedings of the Local court which contained the recorded evidence of witnesses called in the Local Court.

Mr Radclyffe submits that the reasoning of the CLAC in holding that there was no basis on which the Local Court had made its decision to divide the ownership of Ravu Land in terms of primary rights ownership to Timothy Urobo and secondary rights to Stephen Paga was unsound. He referred the court to paragraph 4 of page 3 of the CLAC judgment, which read:

“The essence of the appellant’s argument is that if the local court satisfied on the evidence of both parties why not awarding both the right of primary ownership (sic). We are of the view that the argument on the point raised by the appellant is correct.

It appears to us that the local court had considered the respective cases of both parties and on the balance of probabilities they are equal. If that is so why did the local court divide their rights. We agree that the division of their rights awarded has no basis, we allow this point.”

Mr. Radclyff pointed out that the Local Court had identified in its decision that Timothy Urobo was the original owner of the land from Popoloi to Susuka.

The decision of the Local Court in my view was fairly clear. It considered the evidence of the witnesses on both sides carefully, their family trees and legends and then ruled in favour of Timothy Urobo. The words ‘being satisfied’ in my view, when read in the context of the decision, can only mean ‘having considered’ or something of similar meaning. I am not satisfied that they mean that the Local Court was satisfied that both parties evidence were of the same weight and therefore equal. The words ‘being satisfied’ were qualified by the latter part of that sentence in which the court then said:

“.......this court then identified Timothy Urobo represented by Clement Kuki to the (sic) original owners of land from Popoloi to Susuka.”

In the second paragraph of the decision, the Court continued:

“However the Defendant Cecilia Vogithia is to be the Secondary owner of the disputed area......”

The decision in my view can only mean that Timothy Urobo is the original land owner and therefore have primary rights, whilst Cecilia Vogithia a secondary owner with secondary rights.

No where does it say in the judgment that the Local Court was satisfied that the evidence of both parties were of equal weight and therefore the same on the balance of probabilities.

I accept Mr Radclyffe's submission that the CLAC had no basis on which it made its ruling to allow this appeal point.

Mr Radclyffe then goes on to submit that after the CLAC had concluded that the division of rights of ownership had no basis, i.e. that both parties should have shared equal rights of ownership, it then ruled that the Local Court decision was to be quashed and then reversed. He submits that this was illogical and that no reasonable tribunal could have reached such a decision on the evidence before it.

It is important to note that the decision of the CLAC stemmed from a consideration of appeal point (1) of the respondent as filed with the CLAC, which stated that the decision of the Local Court was against the weight of the decision.

The unfortunate error committed by the CLAC was that after considering the evidence before the Local Court, it did not take a finding as to whether the decision was against the weight of the evidence. Instead, it went straight ahead to consider its own interpretation of the evidence in the Local court and having satisfied itself that the decision should be reversed, it then allowed the appeal. In my view, this was wrong.

The CLAC was obliged to consider the evidence in the Local Court and then to decide if the decision made was against the weight of evidence. Only when it had come to the conclusion in the affirmative and given reasons for so concluding, should it then consider whether there was sufficient evidence before it to enable it to make a substituted decision as to the question of ownership of the disputed land, bearing in mind that it did not have the benefit of seeing and hearing the witnesses give evidence in the Local Court and that therefore questions of credibility of witnesses may be difficult to asses.

On the question of the use of the local knowledge of the justices, it must necessarily be confined to the evidence before the court and must be expressly noted in the judgment of the court. Where the local knowledge of the justices would result in a contrary ruling by the court, then reasons and or clear explanations must be provided.

I am satisfied that the judgment of the CLAC was a decision which no reasonable tribunal could have reached and accordingly this appeal ground must be allowed.

GROUND 4:

This ground can shortly be disposed of. If it was true that the Appellant did not have sufficient time to prepare his case as a result of the short time in which he was given a copy of the notice of appeal of Stephen Paga, then he could have raised it before the CLAC either on the 20th October or 21st October 1993, and requested an adjournment for a couple of days to enable him to prepare his submissions in reply to the appeal points raised. The fact that he did not raise this point when he had the opportunity meant that he must have waived his rights. There is no evidence to show that the Appellant had raised any complaints about this when the court sat to hear the Appeal on the 21st October 1993.

GROUND 5;

The decision to dismiss the appeal is a matter within the discretion of the CLAC. It seems that the CLAC may have unilaterally decided to adjourn the hearing to the following day as the spokesman for the Respondent, Stephen Paga was not present on the 20th of October, though the respondent was present on that day. A delay of one day is not inordinate or unreasonable, though I am pre-pared to accept that the proper procedure is to give the Appellant opportunity to raise any objections that he may have and make any applications that he may consider, such as the question of costs, in the event that the objection is rejected. I am not satisfied that the appeal should be allowed on this point.

GROUND 6:

This ground seems to have been raised in conjunction with ground 3. In that context, ground 6 is material to the question whether the judgment of the CLAC was a decision that a reasonable tribunal could have reached on the evidence. It is not in dispute that no survey of boundaries was carried out by the CLAC or the Local Court. However, there was a survey done in the Chief's hearing. It does appear that the issue of boundaries was not in dispute at the CLAC hearing and that the reason why it has now been raised was to try to show to this Court that the CLAC Justices may not have understood the boundaries of the land in dispute and the neighbouring lands sufficiently, to enable them to make a proper judgment.

The decision whether to hold a surveyor not again, is a discretionary matter for the CLAC to make. No request for a survey was ever raised by either party in the CLAC hearing and there was no evidence to show that the issue of the boundaries were not clear. On that basis alone, this appeal point must be dismissed. However, I do note the point raised by Mr Radclyffe that the ruling made by the CLAC could be interpreted as having been made by a court which did not have a proper understanding of the location of the boundaries of the disputed land and the neighbouring lands.

This leaves ground 3 alone which has been allowed in this appeal. I have considered whether in allowing this appeal, to quash the decision of the CLAC and to re-instate the decision of the Local Court. Unfortunately, having considered the fact that the CLAC had also found in its judgment that there was a real likelihood of bias occurring in the Local Court, it would not be proper to do so. Accordingly, I will quash the decision of the CLAC and direct that the dispute be returned to the Local Court for a re-hearing before a differently constituted local court.

No order for costs.

(A.R. Palmer)
JUDGE