Counsel: A Nor the appellants;
C Solosaia for the respondent
JUDGMENT
(LUNGOLE-AWICH,
J): The Grounds of Appeal.
In this appeal against the judgment of Malaita Customary Land Appeal Court,
dated 25.10.1996, the appellants, Elison
Filakwasi and Bethuel Palmer, filed
notice of appeal which stated 13 grounds. In addition they stated 15 points
they
described as, "deceit and lying points," 4 as, "eye witnesses points,"
4 others as, ”trespass points"
and finally 3 as, "questions." At the hearing,
learned counsel Mr. A Nori for the appellants abandoned all but one
ground.
That ground was numbered 3 in the notice of appeal dated 7.1.1997, drawned
by counsel after appellants had filed
the lengthy one. The sole ground
pursued is this:
"3. The court erred in making a finding without any supporting evidence
at all, in particular when it found as follows:-
‘It must be stressed that an owner oner of a land is free to dispose off [sic]
and deal with his properties. If he desires
to give a portion of the land to
a daughter or any female member of his line, then that is his will.'
The said finding was arrived at without any any evidence being adduced or
produced in support of it."
The respondent , Conilius Ghui, representing hibe, was the plaintiff in
in
the Local Court and the appellants were the
defendants. The
plaintiff/respondent won the case in the Local Court, as well as on appeal
when the defendants/appellants
appealed to the Malaita Customary Land Appeal
Court. The plaintiff/respondent claimed that he represented their tribe, the
descendants of Arikao and Taifau who discovered and settled on the land,
Kulakwai/Lumarau land, the subject of claim.
The defendants/appellant also
claimed the same land on the same basis, that their own ancestor,
Kwailalamua, discovered
and settled the land. Both parties in fact lived on
or used part of the land by the time claim was taken to court. They had
lived peacefully until logging business came and money to be shared among
owners of land was made available.
It would appear that the point sought to be made by the sole sole remaining
ground is that the appellants’ tribes did
not acquire the land by gift to
their female ancestor, which gift was said to have been made by the
respondent’s ancestors,
there was no evidence of that, and therefore the
CLAC erred in not accepting the appellants’ testimony about their ancestor
discovering and settling the land before the ancestors of the respondent.
<
Jurisdiction
<
The jurisdiction of the High Court in appeal cases concerning cing customary land
is limited to questions of, (1) error
in point of law excluding point of
customary law and (2) failure to comply with procedural requirement of
written law.
See sections 231 B and 232 of Land and Titles Act, Cap. 93.
Mr. Nori argued that it was an error in law, other than cusn customary law, for
the CLAC to have made on page 4, the statement
that an owner of land
(customary land in the area of this dispute) was free to make gift of land
to female. He pointed
out that the error was that it was a statement of
customary law, and so had to be proved by evidence, there was no such
evidence. He cited the author of Cross on Evidence at page 861 in support.
He distinguished customary law from facts that
are common knowledge and so
courts could take judicial notice of, he cited the case of
Commonwealth Shipping Ltd -v- Pond 0 Services [1923] ACC 191.
Determination
Firstly it is my view that there was such evidence. Learned counselunsel Mr.
Solosiae pointed out that in his submission.
Respondent's last 4 witnesses,
numbered 3,4,5 and 6 testified that they inherited portions of the land they
lived on,
part of the land in dispute, from their female ancestors who had
been given the portions. Secondly, even if Mr. Nori were right
that there
had been no evidence about the statement of customary law made by the CLAC,
he would have difficulty pursuing
that point further because nowhere in the
records of the Local Court or of CLAC did the respondent say that gift of
the
land was made to female ancestor of the appellants and that is how the
appellants claim ownership. The oral story repeated
on page 3 of the record
of the proceedings of the Local Court is the nearest to that impression, but
does not go so far
as to state that the appellants were descendants of
female from the tribe of the respondent. In fact the respondent
categorically
denied it, on page 4. The respondent's case is not that the
appellants inherited from female ancestor. The CLAC simply answered
the
appeal point No. 11 which raised the question as to whether customary land
can be given to female descendants, without
it considering whether the
appeal point was relevant or material at all in the judgment of the Local
Court. Furthermore,
the CLAC itself did not use that point of customary law
it stated, in resolving the appeal in favour of the respondent. The
statement was not determinant in the CIAC reaching the decision it made in
the judgment appealed against.
It is important to say here that the case was not decided by resolving the
e
question of gift. It was decided in the
Local Court mainly on the strength
of the evidence seen during survey and as to whether or not that evidence
supported
testimonies of parties about burial sites and sites for
worshipping. The CLAC dealt with that at length on pages 2 and 3 of
its
judgment and also decided the appeal on those items of evidence. In dealing
with those important points of the case,
both the Local Court and the CLAC
did not err in a point of law (other than a point of customary law) or in
written law
of procedure. There is no reason for the High Court to
intervene. The appeal to the High Court is dismissed. The judgment of
the
Malaita Customary Land Appeal Court dated 25.10.1996 and of the Local Court
dated 10.5.1993 remain valid.
Costs of this appeal are award the respondent, who was thas the plaintiff in
the Local Court.
Dated this 6th January 1998
Sam Lungole-Aole-Awich
JUDGE
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