Lavisi v Maekiria [2000] SBHC 66; HCSI-LAC 4 of 1999 (11 May 2000)

LAC No 4, 99, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

LAND APPEAL CASE No 4 OF 1999

JOHN LAVISI

-V-

PATRICK MAEKIRIA

High Court of Solomon Islands
(PALMERJ.)
Land Appeal Case Number 4 of 1999

Hearing: 17th April 2000 (at Auki)
Judgement: 11th May 2000

Teutao for the Appellant
K. A Verre for the Respondent

PALMER J.: This is an appeal over the decision of the Malaita Customary Land Appeal Court (hereinafter referred to as “MCLAC”) in Land Case No.6 of 1997 in respect of Radeni Land. The MCLAC inter alia, set aside the decision of the Malaita Local Court in MLC 14 of 1997, held that Radeni was a settlement site of Taranamae within Oterade Customary Land, and re-affirmed an earlier decision regarding the boundaries of Oterade Customary Land as described in CLAC No.1 of 1990. It is against those orders that this appeal has been filed.

A total of fourteen grounds of appeal had been lodged. Some relate to the same matter and will be addressed together.

GROUNDS 1, 2, 3, 4, & 5 OF THE APPEAL

Grounds 1-5 can be dealt with together as they relate virtually to the same subject matter. The gist of these grounds of appeal lie in the decision to re-survey only the Radeni and Sulufou tambu places but not the Ngalifou tambu site. The Appellant claims the Malaita Customary Land Appeal Court (“MCLAC”) had acted unreasonably, in refusing to grant a re-survey of the Ngalifou tambu site and unfairly, in failing to give reasons for its refusal.

The starting point must be that the decision to view the land is a matter of discretion for the MCLAC to exercise (Naisi Luna v. Boaz Sesijama CLAC No.5 of 1979; and Lilo v. Panda and Lilo v. Ghotokera [1980-1981] SILR 155 at p. 170). That was what was done in this case. In the exercise of its discretion, the MCLAC decided to do a re-survey of the Radeni and Sulufou sites only and not the Ngalifou site (see page 21 of the Appeal Records). The MCLAC was not obliged to view the Ngalifou site. Therefore any decision, or refusal by it, to do a re-survey cannot be construed as amounting to unreasonable conduct on its part. A survey had already been conducted of the said sites by the Malaita Local Court and that its report was available to the MCLAC in any event for its consideration (see p. 56 for survey report of Ngalifou site by MLC). Also available to the MCLAC were records of oral evidence of the parties in respect of those sites adduced before the Local Court. There was adequate material therefore before the MCLAC to enable them exercise their discretion, whether to view Ngalifou site or not. I am not satisfied the exercise of that discretion amounted to any error of law that would warrant intervention by this Court.

The failure by the MCLAC to give reasons for its decision not to re-survey Ngalifou site is also immaterial to the question of exercise of its discretion. There was more than sufficient material before it to enable it make a decision whether to re-survey Ngalifou site or not. That fact alone is more than sufficient to dispose of any suggestion that the MCLAC had acted unfairly in declining to give reasons for its decision. I am not satisfied such conduct amounts to an error of law that would oust jurisdiction of the MCLAC. Grounds 1 to 5 of the Appeal must be dismissed.

GROUND 6

Ground 6 reiterated the same grounds set out in Grounds 1-5. It sought to argue that the MCLAC erred in law when it refused to do a re-survey of the Ngalifou site. Learned Counsel for the Appellant sought to submit it was imperative in the circumstances for a re-survey of the site to be undertaken. Whilst that may have been the view of the Appellant, the ultimate decision was taken by the MCLAC as to whether it was imperative for it to do so or not. In the circumstances of this case, the said court had deemed it unnecessary to do a re-survey. There was adequate material before it to enable it exercise its discretion one way or the other. Having so done it is not for this Court to interfere in the merits of that decision. Ground 6 should also be dismissed.

GROUND 7

Ground 7 alleged error of law committed by the failure to keep accurate records of the site visit. The problem with this ground is what standard of accuracy is being imposed? It must be pointed out there is no obligation on the part of justices to keep detailed records of the site visit other than what they might consider sufficient for purposes of assisting them in making their final judgment in the matter. If any records are to be taken, it would be for the benefit of the Justices themselves and is a matter for them alone to decide upon. Some of the Justices might prefer not to make any notes and simply rely on their personal observations of the site. There is no suggestion whatsoever that the records kept for the benefit of the Justices themselves were inaccurate or insufficient (see pages 57 and 58 of the Records of Appeal) and even if they were, I am not satisfied the omission or so-called inaccuracies amount to any error of law that would oust jurisdiction (though as a matter of practice it would be useful to keep some records if the site visit - this normally should be done by the Clerk to MCLAC).

GROUND 8

Ground 8 alleged an error of law was committed when only three of the six member panel of the MCLAC attended the view. That only three members attended the view is not in dispute. This is less than the quorum stipulated by law under section 255(5) of the Land and Titles Act [Cap. 133]. To constitute a quorum, five members must be present of whom at least one shall be a Magistrate. No reason was given why only three members attended the view. There can be no doubt no Customary Land Appeal Court was constituted on 1st May 1998 when the re-survey was conducted. That survey was quite crucial to the deliberations of the MCLAC. There being no valid court constituted, no valid survey accordingly was conducted, though the MCLAC had deemed it necessary to do a re-survey. That omission amounts to a failure to comply with a procedural requirement of a written law [section 255(5) if the Land and Titles Act (Cap. 133)]. That is fatal to the decision of the MCLAC and must result in the judgment being overturned. In the case of Moses Teteau v. Robert Firiano and Movin Kutai LAC No.3 of 1996, judgement delivered on 18th June 1998, his Lordship Kabui J. also quashed the decision of the Malaita Customary Land Appeal Court on similar grounds. Only four out of five members attended the view.

GROUND 9

Ground 9 of the Appeal seeks to suggest that the MCLAC acted unreasonably in reaching the conclusion that the two versions of the Appellant’s statements in Local Court Case Number 14 of 1997 (“LCC No. 14/97”) and Malaita Customary Land Appeal Case Number 1 of 1990 (“MCLAC 1/90”) were inconsistent. The statement referred to in LCC No. 14/97 (see page 40 of the Appeal Records) reads as follows:

“Both Ialofo and Taranimae left Ailafa and came and settled in Radeni. That Ialofo settled at Radeni (1) while Taranimae (f) lived Radina (2).”

The second statement referred to in CLAC 1/90 read:

“Q3: Who of the two devils came to Ailafo, Iafolo (Ialofo) or Taranamae?

Ans: Taranamae was chased then Ialofo went behind his aunty to Radena site.”

In its judgment, the MCLAC made the following findings:

“In case no. 10/89 the Respondent (John Lavisi) was a witness to Alongolia. In that proceedings he made a statement to the Local Court about Radeni Land. He said that Taranamae left Ailafa came and settled in Radeni. He traced his geneology to Ialofo who is the discoverer of Radeni. The Respondent’s previous inconsistent statement can prove that the Respondent has changed his custom evidence or story. This is a material discrepanry and was done to mislead the Courts as to the true status of the subject matter in dispute.”

The issue for determination before this Court is whether this conclusion was made without any support of customary evidence. If there is, that is the end of the matter. At page 19 of the Appeal Records, this is what the Respondent (John Lavisi) states in answer to questions from the MCLAC:

“Q. When lalofo arrived on Radeni (was) anyone there already?

A. Ialofo is the founder nobody there when he arrived there.”

At page 20 of the Appeal Records the following question and answers were further recorded:

“Q. First settle on Radeni? (paraphrased - who first settled on Radeni?).

A. Ialofo & Taranimae together Taranamae had magic to spoil girls so she stayed separate. lalofo did the worshipping. Taranimae was a witch. She was no good. She was at Ailafe then she was told to leave. lalofo went with him (sic).”

The answer given to the question raised by the MCLAC at page 19 (above) seemed to suggest that Ialofo was the first person to discover Radeni. When that answer is compared with the previous statement in LCC No. 14 of 1997, one can notice that there would appear to be an inconsistency. But it is also even more interesting when compared with the statement in CLAC 1/90, that there would appear to be even an inconsistency with that statement as well. In the statement in CLAC 1/90, the impression is given that it was Taranimae who first went to Radena and that Ialofo followed later. But that is not the impression given in John Lavisi’s answer to the question from the MCLAC at page 19, when he replied that Ialofo was the founder or discoverer of Radeni. Both couldn’t be correct. Ialofo couldn’t be the discoverer if he arrived at Radeni later, after Taranimae, or if he arrived at Radeni first (and nobody was there on arrival), then Taranimae couldn’t have gone to Radeni first.

But it is also significant that when he was asked about settlements at Radeni, his answer was even more perplexing. The answer given at page 20 of the Appeal records seem to indicate that settlement of Radeni was done together by Ialofo and Taranimae. That would seem to be inconsistent with the statement in CLAC 1/90. In my respectful view, there was evidence before the MCLAC which enabled it to make the finding it did that the two statements as far as it was concerned were inconsistent. Ground 9 must be dismissed.

GROUND 10

Ground 10 is directly related to Ground 9 above seeking to suggest on the same grounds that there was no inconsistency. This has been dealt with and should also be dismissed.

GROUND 11

Appeal ground 11 seeks to suggest that the MCLAC committed an error of law in making the conclusion that simply because the Appellant (John Lavisi) used the words “Radeni Site” at page 27 of CLAC No.1/90 that it meant only a site or settlement and not an area of customary land. It seeks to suggest that this finding was made without any kind of evidentiary support and therefore unreasonable. Unfortunately, that is not quite correct. There is evidence before me which showed that the MCLAC came to that conclusion after due consideration of the various customary evidence placed before it. It considered the custom evidence presented by the Appellant (John Lavisi) and that of the Respondent (Peter Maekiria) before making its final conclusions. After rejecting the customary version of events presented by the Appellant, the MCLAC found in favour of the Respondent. It found that the Respondent’s version was more consistent and then went on to consider the various tambu sites. It then made the conclusion that Radeni was merely a settlement site other than reference to customary land. But for the fact that the survey report was a nullity, I fail to find any error in the findings made by the MCLAC in respect of this matter.

GROUNDS 13 AND 14

Both of these grounds are directly related to the findings of the MCLAC in respect of the so-called survey purportedly done by the MCLAC. Whatever conclusions may have been reached by the MCLAC in respect of the site visits to the Radeni and Sulufou sites are bound to be tainted with the fact that not all members of the Court attended those site visits. It follows therefore, whatever decision the MCLAC had made was bound to be tainted by the error committed in respect of the view conducted over Radeni and Sulufou tambu sites.

ORDERS OF THE COURT:

1. ALLOW THE APPEAL.

2. SET ASIDE ORDERS OF THE MALAITA CUSTOMARY LAND APPEAL COURT.

3. REMIT CASE BACK TO THE MALAITA CUSTOMARY LAND APPEAL COURT AS RECONSTITUTED, FOR RE-HEARING.

4. COSTS OF THE APPELLANT IN THIS APPEAL TO BE BORNE BY THE RESPONDENT.

THE COURT