Alongolia v Maekiria [1996] SBHC 49; HC-LAC 001 of 1991 (27 September 1996)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case of 1991

JACK ALONGOLIA

v

PATRICK MAEKIRAEKIRIA

Before: Muria, CJ

stylrgin-top:-top: 1; margin-bottom: 1">Hearing: 12 September 1996 at Auki.

Judgment: 27 September 1996

Counsel: C. Ashley for Appellant;

very for Respondent

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MURIA C. J:

This is an appeal against the decision of the Customary Land Appeal Court (Malaita) concerning Oteradterade Land. Two grounds are relied upon by the appellant, namely:

"1. That the Local Court and the Customary Land Appeal Courts have no jurisdiction to hear and determine the case as it was not effectively and exhaustively heard and determined by traditional leaders within the locality of the area in which the land is situated;

2. The Respondent purposely purposely [sic] and without reasonable excuse failed to attend meetings of the traditional leaders held for the purpose of hearing and determining the issues in the dispute and thereby has no right of access to the Local Court "

The two grounds of appeal were struck out by the Registrar of High Court on 12 November 1991. That decision was set aside by the High Court on 12 December 1991 which effectively restored the grounds of appeal. Apart from this appeal, there are two other applications pending before the Court over this same land. One is a Contempt of Court proceedings (CC.67/93) and the other is an Originating Summons (CC.122/94) seeking declarations against the exercise by the Local Court and Customary Land Appeal Court of their jurisdictions in hearing the dispute over Oterade Land and also seeking to challenge the Contempt of Court proceedings. The parties have agreed that this appeal be disposed of first and that the two applications will be dealt with later, if necessary.

Ground 1

The basic argument advanced by Mr. Ashley on behalf of the appellant is that the Local Court and Customary Land Appeal Court had no jurisdiction to hear the dispute over Oterade Land since there was no hearing at all before the chiefs. In support of that argument Counsel relied on section 8D of the Local Courts Act. Subsections (1) and (2) of that section provide as follows:

"8D(1) Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that-

(a) the parties to the dispute had referred the dispute to the chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.

(2) It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1)have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred."

It will be noted that the Local Court does not have jurisdiction "to hear and determine" a dispute over customary land unless it is satisfied that:

(i) the parties had referred the dispute to the chiefs;

(ii) all traditional means of solving the dispute have been exhausted;

(iii) no decision wholly acceptable to both parties has been made.

Had the dispute been referred to the chiefs in this case? I turn to the records of the Local Court and Customary Local Appeal Court and the affidavit evidence in this matter to see whether or not there was actually a chiefs' hearing taken place.

In his evidence in the Local Court, the respondent gave an account of how he was notified of the chiefs' hearing by Mr. Ledimani on 14 September 1989 and that he wrote on 15 September 1989 to the chiefs objecting to the chiefs of Ward 4 hearing the dispute between the appellant and himself. Another letter was then written to the respondent on 16 September 1989 by the chiefs of Ward 4 asking him to attend the chiefs hearing. He replied on 21 September 1989 objecting once again to the said chiefs hearing the dispute. Despite his objections, the chiefs of Ward 4 proceeded to hear the dispute on 7 October 1989 with only the appellant and his group present. This is also revealed in the respondent's affidavit filed on 3 June 1994 and which Mr. Ashley referred to in his argument.

The appellant gave evidence in the Local Court and after tracing his generation went on to say:

"These are my generation who inhabit the land of Oterade. . . . Sorry for the decision given by the chiefs of Ward 4 as Patrick claimed in this Court today but because that time our chiefs of Ward 3 were not yet registered to deal with land disputes in areas. That's why we paid the court for chiefs of Dala areas. It is hard for us to pay the Buma area chiefs because we are the ones who involve in the land dealings in Buma areas (Ward 3)."

That cannot be anything else but a clear evidence from the appellant himself that the chiefs of Ward 4 held a hearing and dealt with the dispute over Oterade Land. Mr. Liolea's evidence as deposed in his affidavit also filed on 3 June 1994 confirmed that there was evidence that there was a chiefs' hearing over Oterade Land.

In his appeal points to the Customary Land Appeal Court complaining against the procedure used by the Local Court, the appellant said that he asked the Court to allow him to call a chief from Ward 4 to give evidence relating to the "land settlement" but the Court refused. This clearly is a reference to the settlement arising out of the hearing by the chiefs of Ward 4. He further challenged the Local Court's comments that those chiefs from Ward 3 who were free from the Oterade Land dispute should have been called to sit with chiefs from Ward 4 when hearing the dispute. He said that that was not possible as all the chiefs from Ward 3 were involved in the dispute either as plaintiff's witnesses or defendant's witnesses. In ground 2.5 of his appeal to the Customary Land Appeal Court the appellant attempted to justify his bringing the dispute to the chiefs of Ward 4 when he said:

"my action to bring the matter before Ward No.4 chiefs for settlement is within the procedure as read in paragraph (1) if the parties are different or the land is different then they can hear it."

When one considers all the evidence and the records of the courts below, it is virtually inconceivable to find any justification for the assertion now made by the appellant that there was never any hearing at all before the chiefs. It is plainly obvious to this Court and to anyone who cares to read the records of the Local Court and Customary Land Appeal Court that the chiefs of Ward 4 dealt with the dispute over Oterade Land and at that hearing the respondent was not present having objected to the chiefs of Ward 4 dealing with the matter. Subsequent to that hearing the "Unaccepted Settlement" Form was filed in the Local Court at Auki. For the appellant now to come to this Court and to deny the existence of the very matter in which he himself took an active part and to use that as a ground for appeal, is to say the least, unacceptable.

The first ground of appeal must be dismissed.

Ground 2.

The second ground alleges that the respondent purposely and without reasonable excuse failed to attend the meeting of the traditional leaders held for the purpose of hearing and determining the issues in dispute. Again in relation to the appellant's argument that there never was a meeting or hearing by the chiefs, this part of the appellant's second ground of appeal presupposed that there was in fact a hearing before the chiefs or traditional leaders in this matter. It therefore lends further support to the respondent's case in this appeal.

To turn to the appellant's contention that the respondent purposely and without reasonable excuse failed to attend the chiefs hearing, the evidence before the courts below and now put before this Court do not support such a contention. I have already referred to the letters written both by the chiefs and the respondent. I do not need to repeat them here except to say that they contained the reasons why the respondent objected to the chiefs of Ward 4 hearing the dispute between the appellant and himself. I have seen the contents of those correspondence including the respondent's reply of 21 September 1989. I am satisfied that they do not show that the respondent "purposely and without reasonable excuse" failed to attend the chiefs' hearing.

The second part to ground two of the appeal says that the respondent had no right of access to the Local Court since he purposely and without reasonable excuse failed to attend the chiefs' hearing. I have just found that the respondent did not attend the chiefs' hearing and that he had reasonable excuse for so doing. On that basis it cannot be said that he had no right of access to the Local Court.

As the respondent's right of access to the Local Court in this case is said to be curtailed due to non-attendance to a chiefs hearing without reasonable excuse, I shall say a word or two on the right of access to the Local Court in terms of section 8D of the Local Courts Act. The 1985 Amendment to the Local Courts Act which introduced section 8D was not intended to place any restriction on the individual person's right to have access to the Local Court. That Amendment was introduced basically to try and ensure that in disputes over customary land, the most suitable method to be used in resolving such disputes is through the traditional means whereby the chiefs and elders are the appropriate persons to be involved. Unless that method is first invoked, the Local Court would not have any jurisdiction to hear and determine such dispute. Hence if any restriction is to be read into section 8D it must be on the jurisdiction of the Local Court rather than on the right of access to that court by a party to a dispute over customary land.

Where, as in the present case, the dispute has been referred to the chiefs and they have dealt with it in accordance with the traditional means of resolving such a dispute and decision has been made by chiefs irrespective of whether or not both parties were present, a party who has not accepted the decision is free to bring the matter to the Local Court. Indeed by virtue of the fact that the dispute had been referred to the chiefs who had death [sic] with it in accordance with the traditional means of resolving such matter and a decision thereby made had not been accepted by one of the parties, confers jurisdiction on the Local Court to hear and determine the dispute again if referred to it by one of the parties. Whether that party bringing the matter to the Local Court was present or not is not fatal to the exercise by the Local Court of its jurisdiction to hear and determine the dispute.

For the reasons mentioned the respondent, although not present at the chiefs' hearing, is a party to the dispute and who did not accept the chiefs' decision. He had a right to go to the Local Court and to ask the Local Court to hear and determine the dispute over Oterade Land.

Ground two of the appeal must also fail,

The result is that both grounds of appeal fail and the appeal is accordingly dismissed with costs to be taxed if not agreed.

Order:

Appeal dismissed.

GJB Muria
CHIEF JUSTICE