Iowane v Dadalo [2016] SBHC 199; HCSI-CC 428 of 2013 (11 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Land Appeal Case No. 428 of 2013

BETWEEN:
JOHN MANUI IOWANE AND JOHN RATU
Appellants

AND:
JOHN ALICK DADALO AND JOHN DOMINIC GELA
(REPLACING DECEASED VINCENT SAMO WATENIUA)
Respondents

Date of Hearing: 5^th August 2016.
Date of Ruling: 11^th November 2016.

Mr. P. Tegavota for the Appellants.
Mrs. M. Bird for the Respondents.

KENIAPISIA; PJ:

JUDGMENT

Introduction and Background

1. This is an ownership dispute about Ndai Island. It has come to this Court on two previous occasions. On both occasions, the appellants (then) have succeeded. Matter on both occasions, were sent back to the Land Courts on Malaita. First occasion was in 1987 (pages 18 – 21, Appeal Book). Second occasion was in 2001 (pages 92 – 100, Appeal Book).
   
2. Ndai is a tiny island in the middle of the sea, off North Malaita coast. This dispute was triggered from logging in the 1990s. This dispute entered Malaita Local Court (“MLC”) around May of 1996. In February the same year, this dispute had also gone before Olemaoma Chiefs Tribunal. This dispute has been going forth and back in the formal court system since 1996. It has been cruising the formal court system for twenty solid years. One of the Respondents (Mr Vincent Samo Wateniua) is now deceased. Deceased is replaced by John Dominic Gela, by leave of this Court. Court granted Leave to effect this because it was not objected, at trial.
   
3. This appeal was filed in 2013, against the decision of Malaita Customary Lands Appeal Court (“MCLAC”) – Land Appeal Case No. 1 of 1998, dated 12/8/2013 (pages 101 – 108, Appeal Book).
   
4. Before dealing with the appeal proper, perhaps it is helpful to set out the background to this dispute.
   
5. This is the third time this dispute has come back to this Court. All three appeals to this Court have their common roots traceable to Malaita Local Court Case No. 6 of 1994, dated 29/11/1997 (pages 22 – 79, Appeal Book). Court set the scene first, by outlining a brief background to this long running dispute. Court borrow some background facts from Chief Justice Muria in Land Appeal Case No. 7 of 1997 (pages 92 – 100, Appeal Book).
   
   • 5.1 Ndai Island is the land in dispute. Dispute arose as a result of logging proposal by the Respondents herein (Dadalo and Wateniua Party) to log on Ndai Island. Appellants herein (Manui and Ratu Party) have disputed Dadalo and Wateniua Party (“DWP”) ownership right over Ndai Island. This led to a number of hearings firstly before the chiefs, then before the MLC (twice), then before the MCLAC (three times) and before this Court (the third time; now).

Olemaoma Council of Chiefs – 12/2/1996

5.2 Having objected to the logging activities undertaken on Ndai Island by DWP, the Manui and Ratu Party (“MRP”), referred the dispute to Olemaoma Council of Chiefs, claiming they were the real landowner of Ndai Island. The chiefs arranged for the hearing four times. Both parties failed to turn up. Another arrangement was made for the Lilisiana Council of Chiefs to hear the dispute. When the hearing date came, only the DWP turned up. Dispute was brought back again to Olemaoma Council of Chiefs (by DWP), which fix the hearing for 14/2/1996, on Ndai Island. Chiefs waited but MRP did not turn up. Chiefs proceeded anyway and found in favour of DWP, as rightful owners of Ndai Island.

Local Court Hearing - 1997

5.3 MRP took the case to MLC on appeal. The MLC hearing took place at Malu’u. Both parties were present. Evidence from both parties were presented. MLC conducted a survey on the island and a survey report produced. At the end of hearing MLC decided that MRP had primary right ownership and DWP had secondary right ownership over Ndai Island, by decision dated 29/11/1997 (pages 22 – 79, Appeal Book).

MCLAC - 1997

5.4 Before MCLAC, DWP raised a number of points on appeal. DWP had in their grounds of appeal and argument, dissected the evidence taken before MLC, including the survey report, and pointed to what they said, were not supportive of the MLC decision, which was made in favour of MRP as the primary rights owner. The MCLAC dismissed DWP appeal. Not only did the MCLAC dismissed the appeal and confirm the MLC findings, it went further and substituted its own decision for that of the MLC on the secondary rights over Ndai Island, thereby removing any colour of right of ownership from DWP over the island. Decision dated 1/10/1999 (pages 87 – 91, Appeal Book). DWP appealed to the High Court and succeeded. High Court ordered that MCLAC re-hear the case, to be differently constituted. Decision was dated 9/2/2001 (pages 92 – 100, Appeal Book).

MCLAC – Re-Constituted - 1998

5.5 MCLAC re-heard the dispute in Land Appeal Case No. 1 of 1998. At the conclusion of the re-hearing, the MCLAC set aside the MLC decision of 29/11/1997 and awarded primary right ownership to DWP alone. That decision was dated 12/8/2013 (pages 101 – 108, Appeal Book). This decision is the subject of the current appeal.

Current Appeal – Land Appeal Case No. 428 of 2013

5.6 RMP now appeals against the decision of MCLAC decision dated 12/8/2013.

Law on Appeals from Customary Lands Appeal Court

6. The power of this Court on appeal from MCLAC in customary land disputes is very limited. It is confined mainly to determining whether there has been an error on point of law or error of procedure committed by the Land Courts below (Section 256 (3) of the Lands and Titles Act (Cap. 133)) as amended. Perhaps Court is stating the obvious. Court will look to see, if there was an error on point of law or error of procedure. Court does not have power to enquire into matters of facts and customary law. Issues of customary law are matters for the Land Courts to hear and determine (Kwakwae –v- Gwangaru (2012) SBHC 13; HCSI-CC 314 of 2007 (2^nd February 2012). Court can only intervene, if Land Courts have acted without jurisdiction. To demonstrate the Law, Court will briefly outline the two previous occasions that this Court had intervened, because there was error of law and or procedure.

Land Appeal Case No. 2 of 1997 – Justice Arwich - Wateniua –v- Manui (1997) SBHC 95; HCSI-LAC 2 of 1997 (7^th October 1997)

7. In a successful appeal by DWP, Justice Arwich ordered that the dispute be taken back to MLC, because there was an error of law and procedure. Error of law and procedure was to do with the MCLAC refusal to admit new evidence intended to be introduced by the appellant in the MCLAC. Decision dated 7/10/1997 (Pages 18 – 21, Appeal Book).

Land Appeal Case No. 7 of 1999 – Chief Justice Muria – Wateniua –v- Manui (1999) HCSI-LAC 7 of 1999 (9^th February 2001)

8. In another successful appeal yet again by DWP, Chief Justice Muria ordered that the dispute be taken back to MCLAC, because there was error of law and procedure. Error of law and procedure was to do with, the MCLAC placing much reliance on two different chiefs’ decisions and ignoring the evidence placed before it. By doing this, the MCLAC made an error of law because, the two chiefs’ decisions were about ownership of Duruana Land, not Ndai Island and not binding on the two parties (DWP and MRP). Additionally by ignoring the evidence before it, the MLC had killed the notion of fair hearing and contrary to sense of justice. High Court also allowed new evidence that MCLAC should consider, subject to proper applications made to admit the new evidence. Decision dated 9/02/2001 (pages 92 – 100).

Current Substantive Appeal

9. This appeal against the decision of MCLAC decision of 13/8/2013 is premised on six grounds of appeal, given in the Notice of Appeal (pages 109 – 111, Appeal Book). Court dispensed this appeal in the order of the appeal grounds raised.
   

Appeal Ground 1

10. That the MCLAC had erred in law in holding that the DWP alone had primary rights ownership over Ndai Island as there is sufficient evidence before MLC, the MCLAC can rely upon to make a proper finding that MRP also have land rights and ownership over Ndai Island.
11. In deciding this ground of appeal, Court start by saying that there was adequate material before the MCLAC to enable it to decide which of the parties had primary rights over Ndai Island, or whether MRP have land rights and ownership over Ndai Island. The materials on review from MLC include: records contained in the decision (transcripts of oral evidence of parties^[1]); parties submissions (oral and written) and survey report. This Court does not have the benefit of viewing all these materials, except the decision. The decision records other materials like Appendixes. In the absence of these materials, this Court is not able to make a proper finding on this appeal ground. Additionally, but importantly, it is not for this Court to say that MCLAC did not make a proper finding in regards to the MRP land rights and ownership over Ndai Island. It is not for this Court to say that MCLAC should also on the evidence find that MRP too have land rights and ownership of Ndai Island. Issues of customary law are matters wholly and solely for the MLC and MCLAC to hear and determine. Those justices are the best people to determine customary law, as it applies to the people, land and the significance of any customary evidence adduced in argument. Court is reluctant to intervene because, no error in law or error of procedure is detected. This appeal ground fail.

Appeal Grounds 2, 3, 4, 5 and 6 (b) together

12. Appeal grounds 2, 3, 4, 5 and 6 (b) are inter-related in that they allege the common ground that the MCLAC placed more weight and consideration on the evidence by the Respondents (DWP) and not Appellant’s evidence (MRP). Again Court repeat that there was adequate material before the MCLAC. What weight MCLAC attach to those customary evidence is properly a matter within their knowledge and understanding (matters of customary law). If this Court should start to dig into those issues, then this Court will be going beyond its powers. Weight certainly goes to touch on facts. This Court is not the fact finder. This Court is not allowed to intervene on matters that only the justices of the lower Land Courts have expertise and knowledge on.
13. Court can deduce that MCLAC did weigh both sides’ evidences. At paragraph 6, the MCLAC says:

“According to the records both the appellants and the respondents have claimed that their ancestor who discovered Ndai had originated from Duruana. It must be on this basis that the Local Court had believed that the discoverer of Ndai came from Duruana. However, the crucial question that should be asked in this regard is whether it is the appellant’s or respondent’s ancestor that had discovered Ndai”^[2].

14. It is also clear that the evidence of both parties or the appellants’ evidence were also considered at paragraphs 8, 9 and 11. At the end of each of those paragraphs, the MCLAC says – “under cross–examination, the witnesses of the DWP remain strong and intact even under cross-examination”. This cross-examination was actually made by MRP and the Justices of MLC. It means that MCLAC did consider the MRP evidence as well.
15. In addition, MCLAC also said at paragraph 12 that MRP evidence before MLC were very brief as opposed to the detailed evidence given by DWP. Also MCLAC did note that all of the witnesses for MRP are not from Ndai except one. On the other hand, DWP witnesses are mostly from Ndai.
16. Furthermore, at paragraph 13, it was obvious that MCLAC did consider MRP evidence. This is what MCLAC says: -

“Obviously on record, the appellant’s claim that their ancestor, Fuluaro, is the first discoverer of Ndai and that he originated from Duruana is largely left unchallenged. However, the Respondents claim that his ancestor, Buli, from Duruana is the first discoverer of Ndai is greatly challenged by evidences of DW1, DW2, DW3, DW4 and DW6.”^[3]

17. Court is therefore satisfied that contrary to what the appellants alleged in these appeal grounds, the MCLAC did consider and weighed the evidences given by both parties before the MLC. These appeal grounds also failed. There is no error of law or procedure.

Appeal Ground 6 (a)

18. The remaining appeal point is Appeal Ground 6 (a). This appeal ground alleges that the MCLAC was wrong in law in that it made its decision based only on the fact that no reasons were given for the MLC findings. There were nine (9) major findings in the MLC decision.

19. It is clear from the MCLAC decision that the major defect it found about the MLC decision under review was that the MLC did not give reasons or explanations for its 9 major findings^[4]. Having perused the said MLC decision, Court is also of the same impression. What MLC merely did was: record the proceedings^[5]; make a summary of the defendants’ case^[6] (DWP) not plaintiff’s case (MRP) and then went straight to make the 9 major findings/conclusions^[7].

20. One cannot see how MLC had dissected the materials before it to support the conclusions it reached. MLC did not identify the issues; did not dissect the evidence and did not explain how it applied the customary law to resolve on the issues and evidences presented before it. You read the MCLAC decision and these defects were remedied. And that’s why it continues to repeat throughout the decision that, MLC made its decision without proper analysis of the issues, evidence, facts and application of customary law to reach the conclusions. Take for instance at paragraphs 5; 7; 14; 15; 19; 20; 22 and 23. And then at paragraph 24; MCLAC summed up the defect and remarked:

“In dispensing justice to parties, every Court of the land is obligated to give reasons for its decisions or findings to be able to explain to parties as to why it made a certain decision in favour of one party. Unfortunately with due respect at the end of the day the Local Court had simply come up with another puzzle that is not helpful and also unfair to the parties and this appeal Court in trying to make sense of its findings. Obviously this is a fundamental error or omission on the part of the Local Court and as such this complaint is allowed.”^[8]

21. On giving reasons for decisions, Chief Justice of Australia; Chief Justice Murray Gleeson AC remarked as follows:

“Explaining the reasons for a decision is an essential part of the justification of an exercise of judicial power. It is also an indispensable aid to appellate review... Furthermore giving reasons is designed to assist in reaching a just result. It promotes good decision making.”^[9]

22. In effect MCLAC said that MLC did not give reasons for its decision. And this not proper dispensation of justice. And so MCLAC was now doing the proper thing. Now there is nothing wrong in law with what MCLAC did. It is the proper thing to do in law. This ground of appeal failed. Having said that, Court had addressed this same defect, in the earlier appeals to MCLAC and this Court. For instance repeat and reaffirm paragraph 5.4 above.

Other submissions by the Appellants – at oral submission

23. Counsel Tegavota in oral submissions urged upon the Court repeatedly and emphatically that the MCLAC decision does not contain any of the arguments by both parties. Yet the MCLAC hearing was conducted over 4 days. That the whole of MCLAC decision contained the analysis of the Court on the appeal grounds and not the parties’ arguments. That arguments of the parties should be readily construed from the decision. That it is more like a review and not an appeal. Counsel then asked why there are no records of parties’ arguments. These submissions were not directly correlated to the appeal grounds. Counsel did not make a link to the appeal grounds. Court gathered that all Counsel was trying to make was to cast doubt on MCLAC decision generally.
24. What Counsel failed to provide to this Court is what those arguments are or even their summaries. What are the arguments by parties, which MCLAC failed to reflect upon in its decision? What Counsel failed to acknowledge is that the MCLAC as a matter of procedure does not rehear the case in full. It only considers the record of evidence and submissions upon it. It can also hear new evidence if proper applications are made and justified.
25. Furthermore, the MCLAC does not have to repeat the arguments by parties. It does not have to record or quote arguments by parties. And it is not necessary to do so. What the Court must do is to assess; review; analyse and screen arguments by parties in terms of the appeal points on the basis of materials before the Court and make a decision on the appeal points. Court is of the considered view, that, this is what MCLAC did.
26. In the absence of any link of these oral submissions to the appeal points, the submissions are not valid, do not hold water and are dismissed.

Conclusion

27. I am satisfied that the appeal should be dismissed. The grounds relied on have not been established to the required standard or shown that any error of law or procedure occurred which would warrant the intervention of this Court.
28. Orders of the Court are:

28.1. Dismiss the appeal with costs to be taxed if not agreed.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Inclusive of written statements of evidence (Affidavits) by witnesses and parties.
^[2] Page 102, Appeal Book.
^[3] Page 103, Appeal Book.
^[4] Pages 76 to 77, Appeal Book.
^[5] Pages 22 to top of page 74, Appeal Book.
^[6] Page 74 (middle) to top of page 76, Appeal Book.
^[7] Page 76 (close to the top) to top of page 77, Appeal Book.
^[8] Page 106, Appeal Book.
^[9] Publication called “Judicial Decisions: Crafting Clear Reasons” by the National Judicial College of Australia (2008) at page 1 (www.njca.com.au).