Gete v Wereke [2011] SBHC 49; HCSI-CC 326 of 2007 (11 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 326 of 2007

BETWEEN:

ROCKSON GETE
Appellant

AND:

TIMOTHY WEREKE
Respondent

Date of Hearing: 25 May 2011 and 1 July 2011
Date of Judgement: 11 July 2011

Dwane Tigulu for Appellant
Erick Teiniu for Respondent

JUDGMENT

Mwanesalua J: This is an appeal against the decision of the Eastern Magistrate's Court sitting at Kirakira on 1 June 2007. The Appellant's grounds of appeal are that the Learned Principal Magistrate erred in law: (1) in hearing an action which raises questions custom, custom ownership of property and tribal member's right to timber royalty; (2) in that his decision was contrary and inconsistent with the weight of the evidence; and (3) in basing his decision on irrelevant facts.

The Appellant seeks the following orders if the appeal is successful: (1) that the decision of the Learned Principal Magistrate be set aside in its entirety; (2) that the Appellant's cost be paid by the Respondent; and (3) any further orders as the Court deems fit.

The Respondent's submission in response to the grounds of appeal are that: (1) the Learned Principal Magistrate had power[1] to hear the case as it merely concerns with equity, that is to say, fairness to the Respondent to be paid timber royalty of $5,000.00 by the Appellant when the Appellant failed to keep his promise to pay that amount; and (2) the Respondent was right in suing the Appellant in this case.

The Law

Every suit before the Magistrate's Court is commenced by Writ of Summons[2]. Among other things, the Writ must have on it, the endorsement of the particulars of the claim. The particulars of the claim are then in turn provided for under Order 10 of the Rules[3]. This order requires the Plaintiff to provide the Defendant with sufficient details of his claim. That is vital because such details have specific functions in a suit.

The functions of particulars are:

(1) To define the issues to be tried;

(2) To enable the parties to know what evidence it will be necessary to have available;

(3) To ensure fairness, openness and lack of surprise;

(4) To save expense;

(5) To include the nature of the case to be investigated;

(6) To limit the issues of fact to be investigated.[4]

The claim of the Respondent against the Appellant was set out in the Writ issued by the Magistrate's Court. The particulars of the claim in that Writ were in these terms: "On the 26th of November 2005, a first shipment of logs was made and royalties paid to landowners. Defendant withheld plaintiff's share of $5,000.00 with unknown reasons."

The first point to be noted from this Statement of Claim, is that, it did not set out any promise by the Appellant to pay timber royalty of $5,000.00 to the Respondent. The Court is of the view that this particular issue should have been incorporated in the claim, which would then, show that a contract persisted between the parties, and, that it was breached by the Appellant. In the absence of that, this issue was not before the Court for determination.

The real issue before the Magistrate's Court was that the Appellant unlawfully withheld the Respondent's share of $5,000.00 for timber royalties. There was no evidence to prove that issue during the trial. And the issue of a promise to pay royalties and the breach that promise was merely raised by evidence during the trial which was not part of the claim.

Now the grounds of appeal. There is evidence that Bwaoro Land has been divided into plots. These plots are then owned by different members of the tribe which own the Land. This evidence relate to custom ownership of such plots. The right of a member of a tribe on whose customary land a logging operation has been carried on is a matter relating to Custom and customary land ownership. The plot of customary land from which the Appellant would receive timber royalty, and to pay royalty to the Respondent also relates to customary land ownership. These matters fall with the jurisdiction of the chiefs, the local courts and the Customary Land Appeal Court.

The issue of a promise by the Appellant to pay royalty to the Respondent, from which to imply the existence of a contractual relationship between the parties in this case was not incorporated in the Respondent's claim before the Magistrate's Court. That Court should not have decided that issue for that reason. The appeal succeeds.

Order

1. Decision of the learned Principal Magistrate is set aside in its entirety.
   
2. Parties to pay their own costs.
   

Dated this 18th day of July 2011.

THE COURT

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^[1] C.25 of the Magistrate’s Court Act (Cap.20)
^[2] Order of the Magistrate’s Court (Civil Procedure Rules 1969) (“The Rules”
^[3] ibid
^[4] Bailey v Commissioner of Taxation (1977) H.C.A; Katsilis v Broken Hill PTY Co. Ltd (1978) H.C.A.