Filo v Toto [2002] SBHC 100; HC-LAC 016 of 1996 (6 February 2002)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No: 16 of 1996

JOSE FILO AND SAMUEL SAMO

V

STEPHENUS TOTO

HIGH COURT OF SOLOMON ISLANDS
(FRANK O. KABUI, J.)

Date of hearing: 4^th February 2002
Date of Judgment: 6^th February 2002

Mrs M.B. Samuel for the Appellant
Mr D. Hou for the Respondent

JUDGMENT

(Kabui, J.) This is an appeal filed by the Appellants on 29^th October 1996 against the decision of the Malaita Customary Land Appeal Court made on 16^th August 1996. The decision was that the Respondent was the descendant of the male line in Fiu Land whilst the Appellants were the descendants of a female line possessing secondary rights only in Fiu Land. The other Appellant, Jose Filo, has since died. The grounds of appeal and the history of litigation as they appear on the Appeal Record are confusing to me. For this reason, I have decided to state the facts first before restating the grounds of appeal in an effort to understand the context in which the grounds of appeal were framed by the Appellants in their Notice of Appeal. The Amended Notice of Appeal filed on 3^rd May 2000 does not really help in clarifying my confusion because it does not say that it has replaced the Notice of Appeal filed on 29^th October 1996. I take it that it contains additional grounds of appeal. It may well be the condensation of the original Notice of Appeal. I will find out when I deal with it in this judgment.

The Facts

Fiu Land had been the subject of dispute since 1940. The parties in dispute had been different persons except in 1969 when the Respondent's father was the Plaintiff but again the Defendant was another person. The Appellants and the Respondent went before the Chiefs' forum in 1988 in the dispute over Fiu Land. The Chiefs concluded that both parties were the descendants of female lines in Fiu Land and therefore had equal rights in that land. The dispute did not end there. It went up before the Malaita Local Court in 1990. The Plaintiff in that case was the Respondent in this appeal. The decision of the Malaita Local Court was that the Respondent in this appeal was the descendant of the male line in Fiu Land whilst the Appellants in this appeal were the descendants of the female line. That decision by the Malaita Local Court was appealed in the Malaita Customary Land Appeal Court. The decision of the Malaita Local Court was subsequently set aside by the Malaita Customary Land Appeal Court. The case was then sent back to the Malaita Local Court for re-hearing and it did so on 3^rd November 1994. It delivered its judgment on 16^th November 1994 in which it said both parties had equal rights in Fiu Land. Its decision was appealed by the Respondent in the Malaita Customary Land Appeal Court. In its decision delivered on 16^th August 1996, it said that the Respondent was the descendant of the male line in Fiu Land whilst the Appellants were the descendants of the female line thus possessing secondary rights in that land. The Appellants then appealed against this decision to the High Court on 15^th November 1996.

Grounds of Appeal

There are six paragraphs making up the Appellants grounds of appeal filed on 15^th November 1996. Paragraph 1 is a complaint against how the CLAC dealt with point 2 in the Respondent's appeal in that the CLAC should have quashed the Malaita Local Court decision because of the possibility of there being the element of "bias" in the composition of the Malaita Local Court that sat in 1994. The CLAC had ruled that this point had no merit (see page 8 of the Appeal Record). Paragraph 2 is a complaint against how the CLAC acted against Rule 19 of the Local Court Handbook in that its decision went against this Rule and therefore the CLAC acted ultra vires its powers. Paragraph 3 is a complaint against the CLAC's decision in remitting the case to the Malaita Local Court in 1994 and then altered the Malaita Local Court decision on appeal in 1996. The CLAC ruled that this point also had no merit because the Malaita Local Court did not always consist of the same members. This applied also to complaint 2 above. Paragraph 4 is a complaint against the CLAC in failing to take into account contradictions in the evidence given by the Respondent in the Malaita Local Court in 1994. The CLAC dismissed this point because in their view, the Malaita Local Court decision in 1994 went against the weight of evidence in favour of the Respondent. Paragraph 5 in a complaint against the CLAC in disregarding the significance of matters of custom practice such as Etea, Bibi, Mamoma, sacrifice etc used in Fiu Land to open and close tambu sites. The CLAC did not comment upon this point. It must have thought this point was not important. It must have agreed with the view of the Malaita Local Court in 1994 (see page 68 of the Appeal Record). Paragraph 6 is a complaint against the CLAC in failing to take into account the negative effect of Mr Kwasite'e giving evidence for the Respondent in 1994 in the Malaita Local Court after he had chaired the Chiefs forum that gave equal rights to the parties in 1988. The CLAC dismissed this point on the same ground as 4 above.

The Amended Notice of Appeal filed on 3^rd May 2000 filed by the Appellant's Solicitor are these-

1. The CLAC of Malaita erred in law and in fact when it considered Native Court No. 36 of 1969 between Daamae and Iniakalo and Civil Case No. 12 of 1965 between Ben Baura and Iniakalo as evidence of the Respondents ownership over Fiu Land when the said cases were between the Respondents and parties whose source of claim to Fiu Land is different from the Appellants' source of claim.
   
2. The CLAC of Malaita erred in law and in fact when it failed to consider the differences in the genealogy lineage of the Respondents in the Native Court Case No. 36 of 1969 and Local Court Case No. 3 of 1990 held at Atori. Had the CLAC of Malaita considered these differences it would conclude that the evidences of the Respondents in the Local Court Case No. 3 of 1990 had no value and weight.
   
3. The CLAC of Malaita Judgment 16^th August 1996 is against the weight of evidence.
   
4. The CLAC of Malaita failed to rule on the Appellants submission that the Local Court was procedurally wrong when it allowed a member of the Chiefs Panel that initially presided over this land case as Chairman of Chiefs Panel to be a witness for the Respondents.
   
5. The Appellant prays for the following orders;
   
   • (i) To remit the case to the Local Court with newly constituted justices
   • (ii) The cost of this appeal
   • (iii) Any further orders this court deems fit.
     

These Amended Notice of Appeal was opposed by Counsel for the Respondent, Mr Hou, on the ground that they were out of time as the Amended Notice of Appeal contained new grounds of appeal and therefore the Court had no jurisdiction to hear them. The original Notice of Appeal was within time. I do not think the Amended Notice of Appeal is out of time. Mr Hou cited no authority to support his assertion that new grounds of appeal by way of an amendment to the original Notice of Appeal would also be subject to three months time-limit under section 256(3) of the Land and Titles Act. This is a customary land dispute and I do not think the legislature would have intended technicalities to defeat the spirit of section 256 of the Land and Titles Act. In fact, the Amended Notice of Appeal does reflect the complaints 4-6 in the original Notice of Appeal in a condensed form. It is not really true to say that the Amended Notice of Appeal created new grounds of appeal.

The Powers of the CLAC

The powers of the CLAC are set out in section 256 of the Land and Titles Act (Cap. 133). When an appeal reaches the CLAC under this section, the CLAC after hearing it, may replace the decision of the Local Court with its own decision or may make such order as it may seem just (section 256 (2)). Such an appeal must be one which raises a point of law or shows a failure to comply with any procedural requirement of any written law (section 256 (3)).

What then is a point of law?

I dealt with this issue in the case of Solomon Telekom Company Limited v Trade Disputes Panel (Civil Case No. 97/1998) (unreported) in a judgment I delivered on 8^th January 2002. At pages 4-5 of that judgment, I said "I would place emphasis on the statement by Lord Denning MR in the above quote that any provision permitting an appeal on a point of law is always interpreted “widely and liberally”, to use His Lordship’s own words. This statement is clearly a reflection of the effect of the view expressed by the House of Lords in Edwards (Inspector of Taxes) –v- Bairstow and Another [1955] UKHL 3; [1955] 3 AER. 48, particularly in the judgment by Lord Radcliffe".

I would apply that approach also to this appeal. That is to say, I would interpret section 256(3) of the Land Titles Act widely and liberally in considering the grounds of appeal in this appeal.

Grounds of appeal argued at the hearing of the appeal

Counsel for the Appellant, Mrs Samuel, restricted her arguments only to the grounds of appeal filed by herself on 3^rd May 2000. The first point that Counsel for the Appellant argued was ground 4 in her Amended Notice of Appeal. She made the point that Mr Kwasite'e should not have been allowed to be a witness for the Respondent at the Local Court trial in 1994 for the reason that he had been one of the Chiefs who made a determination between the same parties in 1988. She urged me to take note of this because the issue did raise the question of lack of impartiality on the part of Mr Kwasite'e. In response, Counsel for the Respondent, Mr Hou, argued that there was nothing to stop Mr Kwasite'e from giving evidence as he did before the Local Court in 1994. I can well understand this point being raised but the Appellants were at the trial and should have objected to Mr Kwasite'e giving evidence at the trial in 1994. They did not. Mr Kwasite'e was questioned by the Appellants and the Court about this at pages 35-36 of the Appeal Record. He gave his answers to the questions asked of him. The perceived lack of impartiality on his part was not a secret to the parties and the Court. The decision of the Local Court did not take account of Mr Kwasite'e's evidence. The Malaita Local Court in its decision on 16^th November 1994 called the evidence given by Mr Kwasite'e, false (see page 67 of the Appeal Record). Even on appeal, the CLAC made no reference to this point as bearing weight in favour of the Respondent. This point is therefore of no legal significance and is rejected. The next point was ground 2 in the Amended Notice of Appeal. Counsel for the Appellant relied upon the affidavit of Mr Samo, the Appellant, filed on 15^th November 1996. She argued that the Respondent gave contradictory genealogies. That is to say the genealogy he gave in Local Court Case No. 36 of 1969 differed in some respects to the one he gave in the Local Court Case No. 3 of 1990. In the 1969 case, he said that Oifanua begat Ko'onaki Doe and Anigau being two sons. In the 1990 case he said Gwainiu begat Ko'onaki Doe and Kootalafanoa. Again, in the 1969 case, he said Ko'onaki begat Launiu and Fufunu whilst in the 1990 case, he said Koonaki begat Fufunu, Kalua and Angisirobo (f) seven generations down the line. Counsel for the Appellant argued that these contradictions would have had the effect of reducing the weight and value of the Respondent's evidence. Counsel for the Respondent conceded these differences but said such differences were common in land cases and this appeal was no exception. Mr Hou urged me to disregard these differences because they were slight only and did not affect the correctness of the Respondent's main genealogy that he produced in the Local Court. I agree. The Respondent only highlighted his own genealogy. It may be that Gwainiu might have had more than one son but those apart from Ko'onakidoe would have been of no significance if they had died without issue so that any mention of their names would not have meant anything. No one has come forward to claim Anigau and Ko'otalafanoa, the names mentioned by the Respondent in his genealogy, as their ancestors to show that these are surviving descendants of the brothers of Ko'onaki Doe. I do not think this point is of any significance and I reject it accordingly. The 1^st and 3^rd points in the Amended Notice of Appeal can be taken together. That is to say, the CLAC's decision was against the weight of the evidence. Counsel for the Appellant argued that if the CLAC had taken account of the contradictions in the evidence of the Respondent as pointed out in point 2 above and regarded the previous decisions in 1965 and 1969 as not binding upon it, the CLAC decision would have been different. Mrs Samuel therefore urged me to quash the CLAC decision and remit the case for re-hearing before the Malaita Local Court to be differently constituted. Both parties claim to be the descendants of one male common ancestor called Gwainiu. The son of Gwainiu was Ko'onakidoe. He was probably the same man claimed by both parties as their male common ancestor after Gwainiu. The Appellant called the same man Konaki. According to the Appellant, the son of Konaki was Kalua whilst the Respondent said the son of Ko'onakidoe was Lonuidoe. Accordingly to the Respondent, Kalua was the son of Ko'onakete'e (Osifooa) being the seventh generation down the line. Kalua's sister was Anisirobo. According to the Appellant, Kalua was the son of Konaki. Anisirobo was the sister of Launiu, the children of Fairaku whose father was Kalua. Accordingly to the Appellant, the Respondent came out from Doga'audoe, the sister of Ofaniudoe, the children of Launiu. This is why the Appellant said the Respondent was not a descendant of the male line in Fiu Land. He said he was the descendant of the male line. On the other hand, the Respondent said that the Appellant came out from Anisirobo, the sister of Kalua and therefore the Appellants were the descendants of a female line in Fiu Land. He said he was the descendant of the male line. The names of the ancestors are similar on both sides but are differently placed in the respective genealogies of the parties. This shows that the parties are related. The issue however is whether or not there is a male line and which of these parties is the descendant of that male line if any. The CLAC's decision was obviously influenced by the previous Local Court decisions in 1965 and 1969. Copies of these decisions were tendered in the Malaita Local Court in 1994 but were not considered by the Malaita Local Court. The 1965 decision is not binding upon the parties to this appeal but it shows that even in 1965, the Respondent's father Da'amae was said to be the head of Fiu Land. Again, the 1969 decision said that the Respondent's father Da'amae would be the head of Fiu Land and everyone else would come under his leadership. These two decisions did not go as far as saying that the Respondent's father was the descendant of the male line but they do show that the Respondent's father was the leader of Fiu Land. I do not think it was unreasonable for the CLAC to have reached this conclusion. At page 32 of the Appeal Record, the Respondent told the Court he was a descendant of a female line in Madodo but of male line in Fiu Land. The Appellant's case was that there was no male line left in Fiu Land. However, he being the descendant of Takonafera, the daughter of Ofaniute'e the last surviving male in Fiu Land, he revived the male line in Fiu Land. At page 61 of the Appeal Record, the Appellant told the Court that no male line existed because the male line came to an end with his mother being born without a brother to continue the male line in Fiu Land. The Appellant concluded that there was no surviving male line to dispute his position as the new male line in Fiu Land. However, the Respondent's genealogy shows no gap created by a female line. His position was supported by the previous Local Court cases in 1965 and 1969 produced at the Local Court trial in 1994. I do not think the CLAC erred in law when it gave weight to this evidence. It was entitled to do so. The weight of the evidence in the Malaita Local Court in 1994 is clearly in favour of the Respondent. I agree with the decision of the CLAC and I uphold it. This appeal is dismissed.

F.O. Kabui
Judge