Lone v Sade [2013] SBHC 123; HCSI-CC 497 of 2011 (11 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

CIVIL CASE NO. 497 OF 2011.

BETWEEN:

BILLY LONE
Appellant
(Representing Patrick Lone and his tribe)

AND:

PLASID SADE Respondent
(Representing Raphael Afuno and his tribe).

Date of Hearing: 23rd August, 2013.
Date of Judgment: 11th September, 2013.

Mr N. Laurere for the Appellant.
Mr B. Hiele for the Respondent.

JUDGMENT.

Faukona J: This is an appeal against the Malaita Customary Land Appeal Court (MCLAC) decision dated 4th October, 2011. In its deliberation, the MCLAC set aside the Local Court decision and decided that the ownership of Takwa Customary land is awarded to the current Respondent Mr Plasid Sade. Any new development proposes to take effect within the land must seek prior permission from the Mr Plasid Sade. Against that determination, that the Appellant In this Court filed notice of appeal on 16th December, 2011. There are six grounds of appeal.

Boundary of the disputed land:

2. From submissions, it may seem that the land being the subject of this appeal is bounded by Faufo river on one side and runs along the coast to Ferasubua. From Ferasubua tambu house it then runs inland to a abalolo tree, then goes inland further to Ngalibabari. From Ngalibabari it runs to Anoufi and then to Ngalingungumu. From there it goes to meet Fatathamaebusu, which appears as the source of Faufo river. Then it follows Faufo river down to the coast.

The claims:

3. The Appellant claims that from Faufo river to Ferasubua, all that land as describe above is part of Duruana customary land his father won in a Local Court case No.12/2000. The Respondent claim that the land Takwa which belong to his tribe runs from Ferasubua tambu place and along the coast to Faufo river and further beyond. No boundary was marked, perhaps, because that part is not disputed.

4. I noted an unfortunate situation of which no minutes of CLAC proceedings was compiled in the appeal books, in fact the minutes of the proceedings were not found in the CLAC file in possession of the Magistrates Office in Auki. Despite that, Counsels have conceded for the appeal to proceed. One prime contributing reason is that this particular land dispute has been prolonged unnecessarily by the formal processes of the Court. It took 13 years before the Malaita Customary Land Appeal Court was able to hear the appeal from the Local Court; that is unacceptable delay. The Courts must uphold the principle that justice delayed is justice denied.

Grounds of Appeal:

5. Ground one:

The question to ask is principle tambu place or No. 1 worshipping place a significant place of evidence that will turn on, as perhaps the most determinant factor, which shows a tribe has ownership right to that land. The answer depends very much on the background and culture one originates from in Solomon Islands. In the culture of Maliata, principle tambu site comprises a worshipping place and where other cultural activities were performed and done as well. If someone or a stranger should question this piece of historical right adorned by most tribes of Maliata, will sure be affirm that ancestral worshipping in the tambu sites are activities that pre-determine a tribal wellbeing, living and sustenance. They are activities adorned and valued most. They reflect on the first activity upon arrival onto the land. These activities are part of their life and obliged to perform, in particular on strange lands and environment they have just arrived at or discovered.

6. Malaita people are not known or describe as nomads but they have vast amount of liberty to move around unhindered. As they settled on strange lands they are obliged by their norms and adaptation to erect a tambu site to worship their ancestors for many things; their leadership protection, authority, strength, mother land for yielding beneficial harvest, for weather, rain, sunshine, fishing and other ritual activities they depend on for existence.

7. Those activities on the first site prompted them to label it as principle tambu site. The remains will protrude as evidence as proving their settlement discovering new land. Though they may move on they would return to worship in the principle sites.

8. In this case, the Malaita Customary Land Appeal Court relied on the failure by the Appellant to mention his principle tambu place during the Malaita Customary Land Appeal Court proceedings. Page 18 of the Court book is the second page of the Local Court decision. On paragraph 7 the Local Court in its decision mentioned Rongoibungu as one of Appellants' tambu place. Then on page 33 of the Court book, paragraph 5, the Appellant did mention in his sworn evidence in the local Court that they took their devil (efi agalo) and made a place for him at Rongoibungu. There they started the Fufulingaia, Ere ni fa'abua and Ere ni maoma.

9. In an ordinary English language, there was indeed no mention of Rongoibungu in absolute clarity as a principle tambu place. It may be mention as tambu place but not in the sense of principle. It was indeed described as one of the tambu places (page 18) and as well described as tambu place where they started the Fufulingaia, Ere ni fa'abua and Ere ni maoma. There was no exact mention or described as a principle tambu place. However, on page 13 of the Court book, it was the current Respondent who stated that, their principle tambu site is called Rongoibungu situated within Duruana land.

10. What exactly would have clouded the minds of the members of Malaita Customary Land Appeal Court was the fact that the Appellant did not directly mention in definite term that Rongoibungu was their principle tambu site. They could not accept when Rongoibungu was mentioned by the Respondent as a principle tambu place owned by the Appellant. I noted members of Customary Land Appeal Court comprised of ordinary rural dwellers. Some are educated and others perhaps none at all. Probably they would expect the Appellant to state it clearly and not the other party to tell the Court of what properties he had in the land. That is quite reasonable because as one would accept evidence from one party about the other party is subject to acceptance.

11. With the uncertainty of truth, it would have been better if this Court has in possession of the record of the Malaita Customary Land Appeal Court proceedings to verify exactly what were said in the court below. Meantime I noted that no minutes of proceedings in Malaita Customary Land Appeal Court was found and not in the possession of this Court. And this Court is urged to read just the judgment which in my view may not be sufficient to give justice to the case. Nevertheless, the understanding even to the knowledge of the Respondent that the Appellant did have a principal tambu site but within Duruana land. That is exactly affirms the Appellant's claim that Takwa land is a portion of Duruana land which he had won in the court. The MCLAC could have simply look at the record of Duruana land case including a map, if produced, to verify and could have turned their mind that there are hints of evidence upon which the MCLAC could have taken into account and considered the issue of principal tambu place, its location and the claim by the Appellant. Any decent consideration could have concluded that the Appellant did have a principal tambu place within Duruana land, as he claims, and which land he had won, and Takwa land is part of it. I must therefore allow this ground of appeal.

Ground 2:

12. This ground challenges the failure by the Malaita Customary Land Appeal Court to give sufficient weight to evidence of witnesses given during hearing and site visit. It would appear, without any issue, the Malaita Customary Land Appeal Court did not conduct a survey or site visit. It was perhaps not necessary because parties had agreed to or because the Local Court held already done a site visit. In any event, the Malaita Customary Land Appeal Court before coming to its decision was obliged to consider records of the Local Court proceedings and what were said as evidence before them.

13. Site visit is the most recognized practical proof where parties show to the Court what properties they own and which are located within the land and which has direct historical connection to the land in dispute. More often site visit was done after tendering of all oral evidence in Court. By conducting a site visit, it gives parties opportunity to show and proof what they said in Court.

14. In its judgment the Malaita Customary Land Appeal Court made reference to the site visit and describe it on page 8 of Court Book and said; "... Court carries out site visit just to prove what was said in Court". The words may appear to reflect a confine approach or a lenient way of approaching the important process of site visit. Or may be out of wrongful use of a descriptive language which entails significant process, which out of legal obligation ought to forebear a deep consideration. In this respect, the Court should turn its assessment on the veracity of evidence given in court and as verified by the site visit. This is important because customary evidence and history given in the land Courts are all hearsay and does not comply with any rules of evidence.

15. By the use of such phrase as quoted implicates less consideration is given to evidence of site visit which could have provided a more practical proof to verify evidence orally given in Court. I could able to conclude that Malaita Customary Land Appeal Court had departed from the important task of given sufficient weight to consider the evidence of site visit. The failure must amount to error and this point has to be allowed.

Ground 3:

16. This ground entails that Malaita Customary Land Appeal Court made a wrong conclusion of fact to conclude that the parties have connection by genealogy through Saufo who married Afehau. The ground by its tone encompasses a question of fact and genealogical connection. This Court has no jurisdiction to entertain. If for some reason, I have to interfere, such connection if ever existed, did not show in the Malaita Customary Land Appeal Court decision as to what rights the parties have to the land. If the issue is considered as one of the reason for the decision, it appears as it was, has no bearing at all on the determination.

17. Mr Hiele submits he could not admonish proper submissions because of lack of Malaita Customary Land Appeal Court records of proceedings available. I would agree with that, but the gist is that this Court cannot determine question of fact it is not recognised under its jurisdiction. This ground must fail.

Ground 4:

18. This ground is founded on an error that Malaita Customary Land Appeal Court refused to consider evidence related to how Takwa Station (a registered portion) was acquired and who actually leased the land to the Catholic Mission.

19. Noted from the judgment record by Malaita Customary Land Appeal Court on page 10 of the Court book, the Malaita Customary Land Appeal Court actually disqualified itself as lacking jurisdiction to determine the issue. Understandably, the Malaita Customary Land Appeal Court had no jurisdiction, but it was not urged to determine the registered land, but any lease or any sale of the land gave a hint of evidence as to who was the lessor or the vendor. No one in all common sense would lease or sell someone's land. That is an accepted principle universally.

20. Mr Hiele argues that Takwa's Catholic Station was established by permission granted by the Respondent's father in 1936. The marvel of this issue is that neither the Respondent's father, uncle or relative signed as lessor in the Land and Titles documents on pages 50-55 of the Court book, but the Appellant's father did as a lessor. There was no dispute as to the lessor ever since the first lease agreement was executed. What appears on page 50 is variation of terms of the lease, which was extended from 1st June 1997 until 31st May, 2027. Again the Appellant's father executed and signed as lessor.

21. There can be no question, an undisputed fact that the portion of land leased to Roman Catholic Church is located within the disputed land. The land and Titles documents provided better evidence than the agreement the Respondent refers to which were in oral terms and has no shred of proof at all.

22. From that evidence the Malaita Customary Land Appeal Court would have a convincing thought that the documents related to the registered land verified that the persons who leased the Takwa portion of land to Catholic Church could have be the original customary landowners.

23. I noted that there are two conflicting claims. If the portion leased to the Catholic Church, was done by the Appellants' father as clearly indicated by the documents, then that should cleanly fall into the Appellant's claim, that Takwa customary land is part of Duruana land which he had won.

24. Ignoring very important and relevant evidence as documents of lease in this case, is an error in law and fact. This is a very important piece of evidence and should provide a starting point or a lead and the rest will follow suite. I must therefore allow this ground.

Ground 5:

25. This ground founded on the issue concerning boundary. It is a question of fact, which this Court has no jurisdiction to deal with. The parties are obliged to show to Malaita Customary Land Appeal Court the boundaries of the land they claim. If Takwa land is part of Duruana land it has to be shown on a sketch plan map submitted to the Court. At times, the Courts, in particularly lower land courts are confused, and are a matter for parties to show clearly the boundaries of the land they are talking about. If nothing was submitted to the MCLAC then reference can be made to the maps submitted to the Local Court.

26. Whether the Malaita Customary Land Appeal Court erred in not considering the Appellants' map submitted in the Local Court, or because of lack of understanding, the fact that parties must ensure their sketch maps are submitted to the Customary Land Appeal Court. Reference to maps submitted to the Local Court may not be of best assistance. In this case, those maps were submitted 13 years back when the Local Court heard the case.

27. Mr Hiele submits that without the Malaita Customary Land Appeal Court record he could not elaborate much or this ground. He could be right but the parties must be clear about their boundaries, which should go in line with their claims. I do not wish to deal and interfere with this ground. This ground must fail.

Ground 6:

28. This ground premises on lack by the Malaita Customary Land Appeal Court to consider or ignore the evidence of physical possession and properties the Appellants have on the land, and the fact that the Respondent has never inhabit the land. Again this is question of fact. I do not wish to interfere with; thus Court lacks jurisdiction. This ground must be dismissed.

Conclusion:

29. From assessing the submissions on each ground and reasoning, I find grounds 3, 5 and 6 are all dismissed. They contain, if I would venture in detail, will be encroaching in determining customary facts, which this court has no jurisdiction to entertain. I have allowed grounds 1, 2 and 4.

30. One significant factor I noted is the absence of Malaita Customary Land Appeal Court record of proceedings, which has to accompany the appeal bundle of documents. Lack of such will not assist the Appellate Court to effectively consider the grounds of appeal before it. I regret this has occurred in this case. The Court administration must ensure all necessary documents are disclosed. Amazingly, Counsels ignore it and concede to proceed. Meaning the records of proceedings may not affect their case much.

31. The most important and striking evidence are the documents related to the lease of a portion of land located within the disputed land to Catholic Church upon which Takwa Catholic Station was established. The lease was signed by the Appellants' father as lessor without any objection and litigation until today. That indicates the portion leased may be part of Duruana land of which the Appellants had won in court and in accordance to his claim.

32. All in all I find that this appeal must be allowed and that the case be referred back to be reheard by the Malaita Customary Land Appeal Court differently constituted.

Orders.

1. Appeal allowed.
   
2. Judgment of Malaita Customary Land Appeal Court dated 18th October, 2011, dismissed.
   
3. Case refers back to Malaita Customary Land Appeal Court for a rehearing with a differently constituted MCLAC.
   

The Court.