Hanaipeo v Rauhoura [1997] SBHC 96; HCSI-LAC 15 of 1996 (15 October 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 15 of 1996

LINO HANAIPEO

-v-

LINO RAUHOURA

High Court of Solomon Islands
(LUNGOLE-AWICH, J)
Land Appeal Case No.15 of 1996

Hearing: 6 October 1997
Judgment: 15 October 1997.

A. Nori spokesman for his tribe, the Appellant
C. Solosaia for the respondent

JUDGMENT

(LUNGOLE-AWICH, J): At the hearing of this appeal, learned Public Solicitor, Mr. Solosaia representing the respondent, raised preliminary objection to Mr. Nori being in court to speak for the appellant. The ground was that Mr. Nori was a barrister and his acting for the appellant would present issues of conflict of interests and therefore by etiquette it would be wrong. Mr. Nori was not robed and he said that he is a member of the appellant’s tribe and therefore a party, he was chosen as the spokesman so he had the right to speak for the tribe represented in this case by the appellant, Lino Hanaipeo. The same objection had been raised at the customary Land Appeal Court hearing and was over-ruled. I decided that the objection had no merit and over-ruled it. Barristers just like engineers, administrators and others do have personal interests as well, and when issue arises in their personal interests they are like non-professionals, entitled to state their interests before any court. In this case, Mr. Nori is a party by reason of belonging to the tribe represented by Lino Hanaipeo, the person named as the appellant. Mr. Nori was entitled to be chosen the spokesman in court. The objection is over-ruled.

I start with appeal point 4. The Malaita Customary Land Appeal Court was right in deciding that the right of reply by a party could be refused by the Local Court on the ground that it is not a feature in the procedure of local courts. Right of reply or of making submission is certainly a feature in, for lack of better description, the general purpose courts or non-local courts. Failure to afford opportunity to a party to address the court in submission is good ground for appeal in the general purpose courts - the Magistrate’s Court and the High Court. The Local Court, however, controls its own procedure and one would expect it to include in its procedure, customary practices of the local people in airing their views or of presenting evidence before a gathering. It must be for good reason, for example, that section 9 of the Local Court Act provides for one giving evidence, “on oath or in the form or, with the ceremony, that he declares to be binding on his conscience.” It has not been proved that hearing reply or submission is an established feature of procedure in the Local Court that sits at Are Are, the area in which this case arose. Refusal to hear submission or reply, not evidence, does not offend against the constitution, any other statutes, the rule of natural justice, and it is not repugnant in anyway. Appeal point 4 is dismissed.

Appeal point 1 is misconceived. Paragraph 5 of page 25 of the judgment of the Malaita Local Court (also page 57 of the record) states the evidence upon which the court concluded in the next unnumbered paragraph that the various portions of the land mentioned therein were the rusu; and in the context, must be the rusu portions of Mamarao Irora. The CLAC may be wrong or right, but its conclusion was drawn from available evidence. Appeal point 1 is dismissed.

Appeal point 2 in my view is baseless. Mr. Nori applied to CLAC, for him to adduce new evidence, which would be: 1. Chief’s decision, 2. Map of Mamarao, the land in dispute and 3. his oral evidence about the customary law of Are Are regarding land. He says that CLAC refused his application. The record shows the contrary. On page 2 of the record of proceedings of CLAC (also page 27 of the record), Mr. V. Nakumara gave evidence of the earlier proceedings before chiefs which proceedings he took part in. Record of it was presented. On page 3 it was recorded that Mr. Nori produced the map of the land area. The record reads -

“Mr. Nori - I will produce the map which I request to produce. Map produced marked A3.”

Then the rest of the record on page 3 and page 4 (except for 4 lines) was about Mr. Nori’s statements of what he contended were the rules in customary law regarding land in Are Are. Mr. Nori’s statements were not on oath, but that is not a requirement for giving evidence in the local tribunal fora. Learned counsel Mr. Solosaia made this point ably. I agree with his submission. Appeal point 2 is also dismissed.

Appeal point 3 has merit. There is no rule of law that a relevant point of law, be it customary law or otherwise cannot be raised for the first time on appeal. It is important that all relevant laws are considered when a case is presented, and should a relevant point of law be omitted at trial, it should be raised on appeal. In this case, the point raised by the appellant was whether for every land unit known as rusu in Are Are there must be a ri’oanimae. The point sought to be made was that if there was no ri’oanimae then the land unit was smaller than a rusu. It was contended that a rusu is not supposed to be subdivided, so those in possession of portions less than a rusu cannot claim customary land ownership. It is important that the Local Court or CLAC resolves that point one way or the other; it is a valid point of law to be raised. It is my decision that the CLAC was wrong on a procedural point that it could not consider a point of customary law not raised in the Local Court. The appellant succeeds on appeal point 3.

In my view when a valid point of customary law is raised before CLAC and should CLAC feel that the Local Court or indeed the chiefs of the area are in a better position to declare what the correct customary law of the locality is, the CLAC should refer the question of customary law back for consideration. In fact it is a statutory provision, found in section 8 E (e) of the Local Court Act that a Local Court may refer a point of customary law to chiefs (commonly referred to as Council of Chiefs) and adopt the determination of the chiefs as the Local Court’s determination. It is really the chiefs of the locality who are the repository of the customary laws of the particular locality. My experience is that often the justices who sit on CLAC may not come from the locality where the case originates. It is my judgment that the CLAC erred on a point of both procedure and of written law that a new point of law cannot be taken before the CLAC. Justice in this case requires that the following questions of customary law be referred back to the chiefs and upon determination by chiefs, be submitted to the Malaita Local Court, to take the determination of the chiefs into account in a retrial the Malaita Local Court is to conduct. The questions are:-

1. Whether for every land unit known as rusu in Are Are there must be a ri’oanimae.

2. Whether Mamarao land in Are Are has a ri’oanimae and if so whether Mamaro land is a rusu or irora.

3. Whether Mamarao land can be sub-divided and given in custom and whether what was given to the respondent’s tribe was correctly given in customary law.

4. Whether in customary law of Are Are, the tribe of the respondent, Lino Rauhoura, has any right in the land portion they now occupy and if so, what the right entitles the tribe to.

5. Whether the tribe of the appellant, Lino Hanaipeo has any right over the land portion occupied by the tribe of the respondent, Lino Rauhoura, and if so, what that right involves.

It is the appellant who has raised the point of law late. He pays the costs of the trail before the Malaita Local Court and before the Malaita Customary Land Appeal Court and the costs of this appeal at the High Court. It is also the appellant to bear the main responsibility for getting the chiefs to sit and to have the chiefs’ determination presented to the Local Court for rehearing. He must do so within 90 days of the date of this judgment and must report his efforts within 60 days of today’s date.

Dated this 15th day of October 1997
At the High Court
Honiara.

Sam Lungole-Awich
Judge