Koke v Hulanga [1996] SBHC 92; HCSI-LAC 12 of 1994 (10 June 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.12 of 1994

HERMAN KOKE & WILSON PAULO

-v-

WILSON HULANGA & RUBEN HULANGA

High Court of Solomon Islands
(Muria, CJ.)
Land Appeal Case No. 12 of 1994

Hearing: 24 April 1996 at Auki
Judgment: 10 June 1996.

B. Titiulu for Appellant
A. Radclyffe for Respondents

MURIA CJ: This is an appeal brought by the appellants against the decision of the Customary Land Appeal Court (Malaita). Three grounds of appeal have been raised, namely,

1. The Customary Land Appeal Court erred in law when it held that there was no evidence before it to support that the Appellants ancestors were the first to settle on Aranga land when there was evidence before the Local Court and an admission by the Respondents that the Appellants' ancestors were the first to settle on Aranga land.

2. The Customary Land Appeal Court erred in procedure when it failed to take into consideration the case submitted by Appellant (Mathew Diu -v- Ezekiel Teahou) Case No.3/92, in which the present Appellants now appeal from was lodged and registered before Case No.5/92. The Customary Land Appeal Court further erred in procedure when it in fact determined Case No.5/92 before it determined Case No.3/92. Had the customary Land Appeal Court determined the Appellants case first with reference to the Local Court decision in the case of Mathew Diu -v- Ezekiel Teahou the Customary Land Appeal Court decision in Case No. 3/92 would have been different.

3. The Customary Land Appeal Court contradicted itself by holding that on the one hand whilst it accepted that each coastal area have principal tambu places with canoe houses and sharks, it refused to accept that the Appellants had evidence of tambu places with canoe houses and sharks at the disputed areas and that these are central features associated with ownership of coastal land in South Malaita.

The principle to be applied by this Court when considering an appeal from the Customary Land Appeal Court in customary land cases is clearly set in Buga -v- Ganifiri [1982] SILR 119, where at page 122 Daly CJ pointed out:

“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.”

In support of ground one, Mr. Titiulu argued that there was in fact in the Local Court evidence to show that the appellants' ancestors were on the land in question before the arrival of the respondents' ancestors. I have seen the records of the Local Court and CLAC and plainly the appellants' argument cannot be supported.

As far as this Court is able to ascertain, what George Hou and John Palmer had said in Local Court were mere assertion supporting their claim of first discoverers of the land. Whereas the plaintiffs in Local Court (now respondents) clearly traced the ancestors of appellants particularly that of Wilson Paulo as originating from the East, that is, Makira and came to settle first at Haunangaile and then to Daha. This piece of evidence was vital to the claim of original discoverer relied on by the appellants. Yet there was no rebuttal to that vital evidence.

Both the Local Court and CLAC considered this point and very properly concluded as they did. This Court cannot see any justification for disturbing the conclusion reached by the Courts below on this point. This ground must fail.

As to ground two (2), I do not think that anything needs to be said on that. It is a ground which is clearly devoid of merit and counsel ought to know better to properly advise litigants on such issue so as not to put them to expenses in pursuing unnecessary issues before this Court. Just because one case has been filed in Court first and another later, is no reason to say that the one filed first should be heard first.

As I have said ground two is without merit and must be dismissed.

Ground three (3) is neither a question of law nor that of a procedural error. The courts below had accepted on the evidence before them the tambu places belonging to the respondents and did not accept that the appellants had shown that they had any in the disputed area. That was a decision which they were entitled to make and this court is not in a position to disturb that unless it is shown that no reasonable tribunal in their position would have reached such a conclusion on the evidence before them. That has not been shown in this case.

Ground three must also fail.

The appeal is therefore dismissed with costs to be taxed if not agreed.

(GJB Muria)
CHIEF JUSTICE