Teteau v Firiano [1998] SBHC 97; HCSI-LAC 3 of 1996 (18 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.3 of 1996

MOSES TETEAU

-v-

ROBERT FIRIANO AND MOVIN KUTAI

High Court of Solomon Islands
(Kabui J.)
Land Appeal Case No. 3 of 1996

Hearing: 11th June 1998
Judgment: 18th June 1998

Andrew Radclyffe for the Appellant
Charles Ashley for the Respondent

JUDGMENT

KABUI J: This is an appeal by Moses Teteau, the Appellant, against the decision of the Malaita Customary Land Appeal Court sitting in Auki on 28th February, 1996. The grounds of appeal are as follows -

“1. The CLAC erred in law in taking account of the survey report conducted by the 1991 CLAC as that Court made no decision and its proceedings were therefore null and void. (See the Respondents’ grounds of appeal to the CLAC paragraphs 3 and 5). The CLAC should have carried out its own survey.

2. The CLAC erred in law in quashing the Local Court’s decision and substituting their own decision as to ownership of the land as the CLAC’s reasons for allowing the appeal did not relate to the evidence of ownership presented to the Local Court but to alleged defects in procedure. (See the Respondents’ grounds of appeal to the CLAC paragraphs 4, 6 and 7). If the CLAC was correct in allowing the appeal on those grounds the proper order would have been to remit the case to the Local Court.”

In 1990, the Appellant was the Plaintiff in the same dispute over Lumabora Land with the father of the Respondents in the Malaita Local Court. The decision of the Malaita Local Court was that the Appellant would have primary rights over Lumabora Land and the father of the Respondents secondary rights. The father of the Respondents then appealed to the Malaita Customary Land Appeal Court against the decision of the Malaita Local Court. The Malaita Customary Land Appeal Court sat at Auki on 17th June, 1991, but the actual hearing of the appeal began on 18th June, 1991. The hearing was adjourned to the next day 19th June, 1991 in order for the Court to survey Lumabora Land together with the parties to the dispute. One of the Court justices, one Michael Daka, was not able to take part in the survey because he felt sick and had to be absent. There is no doubt that the representatives of both parties to the appeal were present during the survey tour of Lumabora Land. However, no judgment was delivered on the appeal for the reason that one Michael Daka was not able to sit with the rest of the members of the Court. On ground 1 of the appeal, Mr. Radclyffe argues that in 1991 there was no Court legally capable of delivering any judgment on the Respondent’s father’s appeal. This argument is based upon page 23 of the Appeal Records. There, the Court said that due to lack of quorum, there would be no decision made until at another Court sitting to rehear the appeal. One Michael Daka, the fifth member of the Court, was found to have been in contact with the relatives of the Respondents whilst awaiting the return of the other four Court members and the parties to the appeal from the survey tour. One Michael Daka was therefore disqualified from sitting as the fifth member of the Court. The intention was that at the next sitting of the next Court, one Michael Daka was to be excluded all the same for the same reason. Also, at the rehearing by the next Court, one Joseph Kaia, one Shemuel Walanihou and one Adam Kwaeria should be part of that Court as they were the ones who had already surveyed Lumabora Land in 1991. The Customary Land Appeal Court sitting in 1991 was made up of the following members -

1. Joseph Kaia (President);
2. Shemuel Walanihou;
3. Adam Kwaeria;
4. Michael Daka;
5. Nelson Laurere.

The quorum of any Customary Land Appeal Court in Solomon Islands is five. Section 231A (5) of the Land & Titles Act (Cap. 93) states -

“(5) A quorum of a customary land appeal court shall be five members of whom at least one shall be a Magistrate”.

Mr. Radclyffe argues that there being no quorum on 20th June, 1991, there was no Court to do or say anything. The situation then was a nullity. This argument can be developed one further step to say that there was also no quorum at the time, the survey was being conducted. At that time, only four members including the Magistrate went on the survey tour together with the parties to the appeal. One Michael Daka was absent. Page 19 of the Appeal Records attests to these facts. It follows therefore that there was no Court in law that moment one Michael Daka took the first step to return to the main road. On this basis, the survey conducted by the other four members of the Court was a nullity. It does not matter that both parties to the appeal had consented to the survey being conducted in the absence of one Michael Daka. They would not have known the legal implications of what was happening at that time. What should have been done was to postpone the survey of Lumabora Land for another date when one Michael Daka would be available to constitute a quorum under the law. I am aware that the location of Lumabora Land is many kilometers from Auki and a postponement of the survey would have been costly in terms of travelling to and from Auki apart from the inconvenience that might have caused the members of the Court. However that may be, the law must not be compromised under any circumstance.

The next Customary Land Appeal Court was made up of the following members -

1. Joseph Kaia (President);
2. Daniel Baetalua;
3. Adam Kwaeria;
4. Mathias Sanau;
5. Michael Daka; and
6. Rody Korau.

This Court sat at Auki on 12th and 22nd February, 1996 to hear the Respondents’ appeal. By this time, their father had died and they became the Appellants. It is clear from page 8 of the Appeal Records that this was a rehearing by a freshly constituted Court consisting of four members who had not surveyed Lumabora Land before. The other two were one Joseph Kaia and one Adam Kwaeria who had surveyed Lumabora Land in 1991. The Court was well aware of the existence of the survey done in 1991 and the record of the proceedings in the Customary Land Appeal Court in 1991. The fact however is that this Court did not carry out a fresh survey of Lumabora Land. The Court did not realize two points. First, the survey done in 1991 was a nullity because there was no Court to conduct any survey of Lumabora Land due to lack of quorum. Second, four members of the court had not had the opportunity to survey Lumabora Land and to ask questions of the parties to the appeal. Obviously, they would have relied upon the survey p done in 1991. It is the law in Solomon Islands that whether or not the Customary Land Appeal Court should visit the disputed land is a matter to be decided by that Court alone. It has complete discretion to do, so or otherwise (see LILO - V- PANDA & GHOTOKERA [1980/81) S.I.L.R. 155 at 169-170) (Also see CAMPBELL -V- MAFUARA [1984] SILR 4 at 7). In my view, this case can be distinguished in that a survey of the land in dispute had been done except that the survey was a nullity and yet relied upon by the Court in reaching its decision. It would have been within the law if the Court had rejected the survey report in 1991 and made its decision purely on the submissions made to it by the parties together with the record of proceedings of the Malaita Local Court or in the alternative, conducted a fresh survey and then took account of that if necessary. To have taken into account the survey report produced in 1991, the Customary Land Appeal Court made an error in law though technical it is.

Ground 2 of the appeal is that the Customary Land Appeal Court made an error in law by quashing the decision of the Malaita Local Court and then substituting its own decision for the decision of the Local Court as to the ownership of Lumabora Land. The reason being that the Respondents’ father in the Local Court was only appealing against procedural errors than substantive matters of ownership of customary land. The relevant parts of that appeal are as follows -

1. That I was instructed by Court that I was not allowed to give evidence concerning facts outside of Lumabora Customary Land; therefore, I feared the Local Court Order, and did not established where I originated from in this case.

2. That the Local Court was inconsecutive (wrong). Therefore the said Local Court refected to survey my sacrificial Tabu place named Ferailalo, in which both parties claimed, and only gave decision without proved;

3. That the Local Court was wrong in giving their decision without’ boundaries of my land (Lumabora) being surveyed;

4. That the survey record in this case was false, not bearing the truths that had been shown and seen during the land surveyed in this case of Lumabora.

These points of appeal were dealt with and ruled upon by the Court (see pages 6-7 of the Appeal Records). In other words, the Court did agree with the errors of procedure committed by the Malaita Local Court and allowed the appeal. However, the Court went one step further and quashed the decision of the Local Court basing its decision on those errors of procedure. Mr. Radclyffe argues that this is wrong in law in that the proper order was to remit the case for rehearing by another Local Court. Section 231B (2) of the Land and Titles Act (Cap. 93) states -

“(2) On any, appeal to it under subsection 1 a customary land appeal court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just”.

Clearly, a Customary Land Appeal Court may substitute its decision for the decision of a Local Court. It is perfectly lawful to do that in appropriate cases. Equally clear in the above subsection is the power of Customary Land Appeal Court to make an order as it sees fit in appropriate cases. It all depends upon the facts of the case before the Court. In this case, the total effect of appeal points 1-3 above is that the Malaita Local Court had excluded relevant evidence which if allowed would have been in favour of the Appellant. The question of admissibility of evidence or otherwise at a trial is a matter of procedure in that the Court decides which evidence should be allowed or otherwise. The question as to who is the rightful owner of Lumabora Land is not in issue. That matter is to be decided after all the relevant evidence on both sides have been elicited and admitted by the Court. What the Respondents’ father was asking for is an opportunity for the admission of his evidence which was excluded by the Malaita Local Court in 1990. This cannot be done by the Customary Land Appeal Court. An Appeal Court is not a trial court of first instance. This principle is clearly set out in KEVISI - V- TALASASA AND ANOTHER [1983} S.I.L.R. 87 where the combined effect of sections 231(1), 231A (4) and 231B 1) and (2) of the Land and Titles act (Cap. 93) was discussed and applied. There, Daly, C.J. said that in order for the Customary Land Appeal Court to substitute its own decision there must first be an order or decision of the Local Court. If however, the Customary Land Appeal Court found that the Local Court never properly exercised its jurisdiction, then obviously there was no order or judgment to replace. The case must be returned to the Local Court for a proper hearing and decision. I believe this is the argument that Mr. Radclyffe is putting forward on behalf of the Appellant in this case. Although the KEVISI case was concerned with the question of the partiality of a member of the Local Court, the same principle can be applied to cases where procedural errors have been made by a Local Court. By allowing the appeal in favour of the Respondents, the Customary Land Appeal Court had found that the Malaita Local Court had never properly exercised its jurisdiction. There was therefore no Local Court order or judgment to replace. The case should have been remitted for retrial by another Malaita Local Court to be made up of different members. I must therefore quash the decision of the Customary Land Appeal Court dated 28th February, 1996 and ORDER that the case be returned to the Malaita Local Court differently constituted for retrial. The appeal is allowed on both grounds. I make no order as to costs.

F. O. KABUI
JUDGE.