Horahanua v Totorea [2007] SBHC 52; HCSI-CC 159 of 2004 (25 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 159 of 2004

ISHMAEL HORAHANUA

-v-

JOE RODI TOTOREA

Date of Hearing: 25 April 2007
Date of Judgment: 25 April 2007

D. Tigulu for the Plaintiff/Appellant
J. Apaniai for the Defendant/Respondent

JUDGMENT

Appeal from the decision of a customary land appeal court

Brown J: With the earlier argument over the defendant’s application to strike out the appeal resolved by my ruling refusing to strike, it is open for the court to now consider the arguments and rule on the appeal.

The grounds of appeal by the appellant are:

"(1) the learned justices erred in deciding to disregard the findings of the acquisition proceedings held in 1965 which adjudged the Appellant’s tribe as the rightful group to lease the Tawaimare land to the Ba’hai Faith; the said Tawaimare land being an integral part of the disputed land;

(2) the learned Justices erred in relying on and putting weight on an alleged objection raised in 1970 by the Respondent’s father against the registration of the Tawaimare land in favour of the Appellant’s tribe when the Respondent’s tribe did not, at any time, challenge the registration on the bases of fraud or mistake as required under the provisions of the Land and Titles Act;

(3) the learned Justices erred in that in accepting the alleged belated objection raised in 1970 by the Respondent’s father, they contravened the provisions of the evidential and procedural requirements provided for in the Local Court Hand-book which is made under the provisions of section 30 of the Local Courts Act and which is obligatory on both the Local Court and the CLAC to follow in relation to hearing of customary land cases;

(4) the learned Justices erred in putting weight on the alleged objection raised in 1970 when there was unchallenged evidence that David Rorore’s father, who was a key member of the Respondent’s tribe, was present during the acquisition hearing in 1965 in respect of Tawaimare land.

(5) the learned Justices contravened the evidential and procedural requirements specified in the Local Court Hand-book when they awarded ownership of the disputed land to the Respondent’s tribe and ignored the Appellant’s tribe-

(a) use and occupation of the land art the time of the dispute;

(b) length of time the Appellant’s tribe have been occupying and using the land;

(c) ownership of tambu places on the land; and

(d) burial places on the land.

(6) the learned Justices erred in making pronouncement of customary law in respect of customary land boundaries in the absence of evidence and by relying only on their own knowledge.

(7) the learned Justices erred in proceeding to hear and make determination on the issue of bias raised by the Appellant since they have no powers to consider such an issue of law on appeal from the Local Court;

(8) on the date of hearing the Appellant’s appeal, the court was not properly and lawfully constituted."

The latter two grounds have been discontinued.

The appeal relates to the CLAC finding on the boundary between Po’otori and Paunaira land in West Are’are in Malaita Province, for the appellants claim the land in dispute as part of their Paunaira land whilst the respondent/defendants claim it as part of and contiguous to Po’otori land.

The CLAC finding was that the disputed area of land is within the Po’otori customary land boundary and that it is owned by the Po’otori tribe.

The dispute over the larger parcel first came before the Arahanimane Council of Chiefs on 31 January 2000 following the construction of a log pond at a site on part of the land. The plaintiff/appellant objected to the construction while the defendant/respondent had permitted it for that the area of the log pond was claimed by the defendant/respondent to be on land belonging to them. As a consequence of the disagreement, the argument disclosed the disputation over the larger parcel which includes both the Tawaimare registered land, the log pond as well as another larger tract of land.

Following a finding in favour of the respondent’s right to the particular parcel as Po’otori land, the Local Court heard an appeal and in January 2001 decided in favour of the respondent. The decision was appealed further to the CLAC which again found for the respondent. It is from that decision of the CLAC given in February 2004 that the appellant now appeals to this court.

The appellant says, in so far as grounds 1 to 4 are concerned, that the CLAC failed to have sufficient regard to the fact of that acquisition by registration, to the Ba’hai Faith and the subsequent surrender back of the particular parcel where the school has been built, for that acquisition reflected the Commissioner of Lands lawful finding in favour of the appellant who was named as a party in the dealings with the Commissioner.

For by surrender of a fixed term estate parcel 184-002-1 dated 16 September 1985 the Bahai’a Trustees, the lessors so named, O.K. Hamuel Hoahania of Hauhui, Jack Siwainao of One, Mrs. Bethsaitder Looikeni of Kiu and Mrs. Methsel Mato’o of One became registered "as the owner of the interest out of which the lease now surrendered was granted".

Earlier these same villagers had granted a 66 year lease to the Commissioner of Lands by agreement dated 16 August 1968 of a customary land block know as Tawaimare – Baumaire (although no map was shown in the schedule to the agreement forming part of the CLAC record) for by earlier lease of such land from 1 March 1965 the Commissioner had covenanted to use the land for spiritual social and educational purposes.

It is not possible to determine with certainty whether the surrender of the 16 September 1985 and the various Lease and Agreement relate to the same land but both appellant and respondent, here, appear to accept the Tawaimare school was built within that block.

It is apparent from the inclusion of these documentary copies of the Land Register and Agreement that the CLAC had them when they heard the dispute. The "interest out of which the lease now surrendered was granted" does not necessarily mean, as Mr. Tigulu says in his argument "that the area of land of which the acquired land forms a part belongs to the Appellants’ tribe".

For the recital by the Commissioner of Lands (quoted by me above) is not recognition of ownership of land per se but only recognition of an "interest" in land. The land was originally customary land and the 4 named persons who dealt with the Commissioner of Lands obviously had a claim of sorts (whether usufruct, to a right of passage over; a right to garden or at its highest, as customary owner) but the extent of that claim was not (and cannot) presumed to be determined by the Commissioner, rather the Commissioner recognised a sufficient interest for the purposes of his dealings with them. The Commissioner does not adjudicate customary rights over land. That authority rests with the customary chiefs of the land area in dispute. (See Local Courts Act, s. 12 et seq)

It follows that past dealings with respect to a portion of the land parcel under dispute, dealings relating to the Twaimare School, involving the Commissioner of Lands do not authoritatively determined the land rights of occupiers, nor can such dealings be said to lawfully determine ownership rights to the larger parcel unaffected by the Commissioners agreements.

I am satisfied the CLAC had notice of the Commissioner of Lands dealings and am not satisfied that tribunal has erred when approaching the questions of boundaries or land ownership by virtue of their deliberations on the Tawaimare school portion by reference to the documentary material comprising part of the record of the tribunal. That material is but part of their deliberations and cannot conclusively bind the tribunal to a particular finding as suggested by the appellant. Mr. Tigulu’s point about the CLAC’s apparent questioning of the parties giving rise to an apprehension of bias (for that a court should not descend into the arena and act as interlocutor) has no merit. The CLAC is not bound by strict rules of procedure or practice in the conduct of its proceedings. It certainly cannot be equated to that of a judge in criminal proceedings in a Western sense for the very purpose of the CLAC is to apply customary understanding of degrees and types of ownership (depending as they do on the manner by which the land comes to be possessed or claimed by particular persons, clans or tribes) and kinds of usages, bearing in mind the evidence of the parties disputing claims before it, and in its absolute discretion determine what is important and relevant to those issues before making its decision. To suggest that the CLAC is hedged about with foreign concepts of criminal law precedent is to misapprehend its role. Certainly the CLAC may make pronouncements on customary law.

Criticism of the CLAC’s failure to follow procedure set out in the Local Court Hand book suffers from the same failing, for that hand book is a guide for the Local Court, and has no particular part to play in the deliberations of the CLAC.

The manner in which the CLAC approached its task is not a matter which can be categorised as a matter of law sufficient to call into play the exception to be found in s. 256(4) of the Land and Titles Act, so as to amount to grounds of appeal for consideration by this court. It is wholly for the CLAC to approach the manner of its enquiry into the issues raised on appeal from the Local Court as it sees fit and appropriate in the circumstances determined by the tribunal provided it affords the parties an opportunity to be heard, since that very issue, the customary incidents of ownership is wholly the function of the tribunal to determine. Section 256(4) Land and Titles Act (Cap. 133).

"Any order or decision of the High Court, and, subject to subsection (3), of a customary land appeal court, in each case given in exercise of the jurisdiction conferred by this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

In the Appeal of Steven Veno and Gordon Young v. Oliver Jino (Civil Appeal 002/2004) delivered by the Court on the 12 April 2006, the Court said, at para 14,

"It is clear that customary land disputes do not fall within the jurisdiction of the High Court to determine, except to the limited extent to which an appeal on a pure question of law or concerning procedural requirements lies to the High Court from the decisions of a CLAC (under s 256 of the Land Titles Act). Nevertheless, in certain circumstances, the High Court has jurisdiction in connection with the determination of customary land disputes, where it is necessary or desirable for it to act in its general jurisdiction to ensure the integrity of the statutory processes, for examples, where the local court is acting outside its statutory charter. It is unnecessary for present purposes to describe the extent of this jurisdiction. As has been already mentioned, in this case, the appellants sought injunctive relief in the nature of a stay until the local court had determined what was claimed to be an outstanding dispute".

This case then of the applicants does not satisfy me there has been shown any pure question of law which the CLAC has misapprehended on the face of its decision nor can it be said any procedural requirements have been breached, procedural requirements which impinge on the appellants right to be heard, for instance

The appeal grounds must fail. I am not satisfied any errors of law have been shown to have occurred. The factual questions are wholly within the cognisance of the tribunal to decide and what custom is material to those questions, is again wholly a matter for the CLAC.

The appeal is dismissed with costs.

THE COURT