Sago v Bako [2018] SBHC 55; HCSI-CC 611 of 2015 (27 April 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name	Sago v Bako
Citation:
Date of decision:	27 April 2018
Parties:	Samuel Sago and Nathaniel Bako
Date of hearing:	16 March 2018
Court file number(s):	Civil Case 611 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:	Customary Land Appeal Court
Order:	35.1. Decision of ILC in case No 6 of 2015 delivered on 5th day of June 2015 is hereby set aside. 35.2. Remit the dispute to be properly dealt with by ILC newly constituted. 35.3. Parties meet their on cost.
Representation:	Mr. A. Rose for the Appellant. Mr. M. Ipo for the Respondent.
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act Lands and Titles Act
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case Number 611 of 2015

IN THE MATTER OF
THE LAND AND TITLES ACT (CAP 133)

IN THE MATTER OF
AN APPEAL AGAINST THE DECISION OF THE ISABEL CUSTOMARY LAND APPEAL COURT IN RESPECT OF THE KHOMURO CUSTOMARY LAND, HOGRANO DISTRICT, ISABEL PROVINCE

SAMUEL SAGO
Appellant
(Representing Zazao Posamogo Clan)

NATHANIEL BAKO
Respondent
(Representing Khoia Clan)

Date of Hearing: 16 March 2018.
Date of Decision: 27 April 2018.

Mr. A. Rose for the Appellant.
Mr. M. Ipo for the Respondent.

RULING ON 2 PRELIMINARY ISSUES UNDER RULE 12.11

Introduction and Back ground

1. Appellant filed a Notice of Appeal to this Court on 8/02/2015. The appeal was made against the decision of Isabel Customary Land Appeal Court (“ICLAC”) in Appeal Case No. 17 of 2015. Decision of ICLAC was dated 30/09/2015.
2. Appellant herein was Respondent in ICLAC. A background to the land dispute, the subject matter of this appeal, would be helpful.
3. Parties herein had exhausted all customary/traditional means of solving the customary land dispute, in respect of Khomuro Customary Land, Santa Isabel (“the dispute”), on or around the 18th September 2011. This was when the Hograno District House of Chief (“HDHC”) handed down its decision on the attempted settlement of the dispute.
4. The dispute was referred to the Isabel Local Court (“ILC”) on 16/10/2013. This is not an “appeal” to ILC. For the HDHC or other traditional means of settling land disputes are not courts of record^[1]. We can only say a party (Samuel Sago) has made “referral” on the dispute to ILC on 16/10/2013. In Section 12 of the Local Court Act (Cap 19) you will not see mention of “appeals” to the local court from a chiefs decision. You will only see “referral” of “customary land dispute” to local court after an unaccepted chief’s decision or settlement. That is to say after chiefs and all traditional means of resolving the customary land dispute has been exhausted, without an accepted settlement, then a referral of the dispute can be made to local court.
5. Chiefs are not a court of record. However, a chiefs decision binds the parties thereto and their tribesmen or immediate relatives inter-partes not in rem^[2]. For the finding of the chiefs in custom is afforded the status of customary law, of Solomon Islands, under Schedule 3 paragraph 3 (3) to the Constitution^[3].
6. Mr. Sago referred the dispute to ILC in LC No 06 of 2013 on the 16/10/2013. This was about 2 years after parties had attempted to resolve the dispute before HDHC. Isabel Local Court gave a decision on 5^th June 2015. The date of hearing is not clear from the decision. The decision awarded some portion of lands to Appellant’s Zazao Posamogo clan and some portions sharing borders to Respondent’s Khoia clan. It is not clear how these portions of land relate to the dispute between parties in respect of Khomuro land.
7. The ILC decision was appealed to ICLAC in Appeal Case No 17 of 2015. Mr. Nathaniel Bako (defendant before ILC) was the Appellant, meaning he was the aggrieved party in ILC. Isabel Customary Lands Appeal Court made a written decision on 30/09/2015. Mr Sago filed Notice of Appeal to this Court on 8/02/2015, meaning he was the aggrieved party in ICLAC.
8. Appellant in Case No 17 of 2015, appealed to ICLAC on 5 grounds. It is interesting to note that most of the appeal grounds were conceded on appeal. Unsurprisingly the ICLAC set aside the decision of ILC and ordered that the dispute be remitted to ILC to a newly constituted ILC membership.

Appeal before ICLAC

9. I deal first with the appeal grounds that were conceded before the ICLAC. They are appeal grounds 3-5 at pages 6 and 7 of the ICLAC decision. Appeal Ground 3-both parties conceded that ILC made determination on ownership of portions of lands that were not the subject of the dispute. This is not surprising because ILC did not make a physical survey. It appeared ILC was relying on coloured maps. As an important observation, I venture to say the local court or land courts must not rely on maps. A physical survey of boundaries is the preferred and reliable means of boundary identification for customary lands. Customary land boundaries are determined on natural features like: streams, valleys, contours, mountains, burial sites, properties etc. These natural features are not easily determined on a map.
10. Appeal Ground 4-both parties conceded that some of the portions of land the ILC decision affected, were registered lands (LR 259–PN 107-001-1). Again this is not surprising because ILC did not make a physical survey.
11. Appeal Ground 5-parties agreed that ICLAC did not make a physical survey, though a survey was necessary, because parties are not in agreement with the survey carried out by the chiefs of HDHC.
12. Turning to the two contested appeal grounds. Appeal Ground 1-is where appellant made the argument that the dispute was appealed to ILC contrary to the time limit of 3 months that HDHC stipulated in its decision. HDHC said in its decision that any aggrieved party must appeal to the local court inside 3 months. As it turned out the appeal to ILC was made 2 years after HDHC’s decision. Therefore the “appeal” was filed out of time.
13. This Court does not have the benefit of seeing the decision of HDHC over Khomuro customary land. This Court therefore is not satisfied on the balance of probability that the said decision imposed a time limit in which its decision must be appealed to local court. I made the point in paragraphs 4 and 5, that HDHC is not a court of record. In other words, it is not the first formal court that deals with customary land disputes. Local court is the first court having exclusive jurisdiction over customary land disputes. It follows that it is not proper in law for one to say an “appeal” lies to the local court from a chiefs decision. To understand this point, I will briefly discuss the Local Court Act (Cap 19) – (the LC Act) and Lands and Titles Act (Cap 133) – (the LTA).
14. The local court is the first court of instance having exclusive jurisdiction^[4] to hear and decide customary land disputes - Section 254 (1) of the LTA (Cap 133). The said section relevantly states:
    • “A local court shall, subject to the provisions of this section, sections 12, 13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land”
15. Then Section 12 of the LCA lays down the mandatory steps to be taken for a customary land dispute to be properly referred to the local court. Section 12 (1) (a) (b) (c), (2) and (3) (a), (b) of LCA tells us what we must do when we refer a customary land dispute to the local court. The local court may assume jurisdiction to hear a customary land dispute conditional upon the following been satisfied by the referring party (ies):
    • (i) The dispute has been referred to the chief, but then all traditional means of resolving the dispute have been exhausted without an acceptable outcome between parties – Section 12 (1) (a) – (c) of the LCA.
    • (ii) To proof that the dispute had been referred to the chief and that all traditional means of resolving the dispute had been exhausted; the party referring the dispute to the local court produces a certificate as prescribed in Form I of the Schedule, containing the required particulars and signed by 2 or more of the chiefs to whom the dispute had been referred - Section 12 (2) of the LCA.
    • (iii) Together with the completed Form I, the referring party must also lodge a written statement setting out the extent to which the chief’s decision is not acceptable, plus the reasons for not accepting the chief’s decision - Section 12 (3) (a) – (b).
16. Then in Section 13 (a) – (e) of the LCA, we see the functions and powers of the local court in dealing with disputes that are properly referred to it under Section 12 of the LCA. In Section 14 (1), (2) and (3) of the LCA, we see that local court may record and treat as its own, a decision made by the chiefs, that is acceptable to both parties, should parties file the accepted decision, within 3 months.
17. The ILC did not make a proper decision on the dispute referred to it. It ought to be understood that the dispute was not “appealed” to local court but “referred” to local court. Like I alluded to above, the chief’s forum is not a court of record. In other words, it is not the court of first instance over customary land disputes. It follows that decisions by the chiefs is not “appealable” to local court. The local court is the first court of record for customary land disputes. Decisions of the local court must be appealed to Customary Land Appeal Court within 3 months^[5]. Decisions of Customary Lands Appeal Court must be appealed to High Court on points of law only, inside 3 months^[6].
18. I made the point that ILC did not make a proper decision. By a careful reading of the decision of ILC, I was able to deduce that the complainant was raising a case which the issue was about customary ownership of portions of land within Khomuro land and Khomuro land boundary. A major defect in the ILC decision was failure to make a physical survey and the demarcation of boundary. A customary land dispute is not complete without the demarcation of boundary^[7].
19. Another major defect in the ILC decision was there were no reasons or explanations given for the court’s 2 major findings^[8]. Explaining the reasons for a decision is an essential part of the justification of an exercise of judicial power^[9]. The ILC merely kept brief records of its deliberations. Issue was briefly mentioned. But it is so difficult to understand how ILC dissected the materials before it and how it applied customary law to resolve the facts and issues it had before it. It is my considered view that ILC failed to discharge its statutory charter under the Local Court Act (Cap 19) – Section 13 (a) to (e) - the functions and powers of the Local Court. When that happens this court can intervene to ensure the integrity of the statutory charter is upheld.
20. A decision containing 3 pages is too short to adequately cover issues of customary land ownership in a fair and just manner. I am not alone in this scrutiny for the ICLAC made the same concern at paragraphs 21 – 26 of its decision. At paragraph 26, ICLAC says:
    • “Having perused the ILC records and HDHC record, this court is not satisfied that the decision reached by the ILC was one which no reasonable tribunal could have arrive at”.
21. On Appeal Ground 2 - appellant raised the issue that ILC did not consider all the appeal issues he raised on appeal. This Court also concurred with the conclusion of ICLAC that ILC did not address the main issues raised for its consideration. The ICLAC in my view was justified to have quashed the decision of the ILC and order a re-hearing, before a differently constituted ILC.
22. This Court will in the interest of maintaining the integrity of the local court to ensure local court carry out its functions and powers according to its statutory charter, order that ILC be newly constituted and hear the referral again. For the avoidance of doubt, its functions when disputes are referred to it are stipulated under Section 13 (a) – (e) of the LCA. Local court can hear a dispute de novo, if required.

Preliminary issues of law posed for this Court to consider

23. In view of the foregoing, I will now turn to decide on the 2 preliminary points of law posed by consent for this Court to decide pursuant to Rule 12.11. The effect of Rule 12.11 is the matter may terminate here without trial.
24. The first preliminary issue of law is “Whether Local Court Act (Cap 19) in its provisions expressly stated that any referral of any chief’s decision to the local court must be done within 3 months of the date of the decision of the chiefs?”
25. The answer is “No”. The said Act does not even talked about referring a “chief’s decision” to the local court. The Act only talked about referring “customary land disputes” to the local court. As discussed in paragraph 15 above, the party referring a “customary land dispute”, must as a pre-condition satisfy the local court that the dispute had been exhausted without parties accepting a chiefs decision or other means of traditional settlement. To be satisfied of this pre-condition, the local court will look at the materials filed (Form 1 to the Schedule and a Written Statement). Here the local court is not looking at the chiefs decision only. The local court will want to be satisfied that all traditional means of settling the customary land dispute, have been prior attempted, without an accepted settlement.
26. All traditional means here is not restricted to a chiefs decision. I know for a fact in Are’ Are custom, one traditional means of solving a dispute including land disputes is a public ceremony called “U’UNU”. Ceremony is presided over by some known elders in custom. A raised platform is erected. Underneath will be fire wood, the best firewood. The firewood would be set on fire, where huge flames of fire would go up to a person standing on the raised platform. If the person gets burnt by the fire, it means he/she is not telling the truth. If he/she comes down unburnt, then he/she is telling the truth. One of the roles of the presiding elder would be to cure and heal the burnt person.
27. So certainly the Act does not set a time frame within which a chiefs decision must be referred to the local court. As opposed to an “appeal” it is not a referral of a “chiefs decision”. It is a referral of a “customary land dispute”. When local court hears and determines the referred dispute, it may have regard to the chiefs decision or call the chiefs involved to give evidence on the applicable customary law (Section 13 (a) and (c) (i) and (ii) of the LCA). This is unknown to “referrals” or “appeals” against a decision of a court of record. In spite of having regard to the chiefs decision; the local court also has power under Section 13 of the LCA to hear a dispute de novo, if required^[10].
28. Elsewhere above, I also made the point that the court of first instance for “customary land dispute” is the local court. I also made the point that chiefs tribunal is not a court of records. I would tend to agree with Parliament that exhausting all traditional means of resolving land disputes, should not be cushioned by set time limits. Parties should be at liberty to exhaust all available means at custom to resolve the land dispute, and not impeded by notions akin to western judicial process, that includes setting time limits to make appeals to appellant court. This view must be correct, in the absence of a codification statute, which stipulates procedure within which chiefs decide customary land disputes. We know too well that matters of custom and issues in custom needs ongoing dialogue and more time to resolve.
29. The second preliminary issue of law is “Whether Section 14 (1) of the Local Court (Cap 19), which relates to the time limit (3 months from the date of the decision) to cause a copy of the chiefs decision to be recorded in the Local Court where both parties accepts the decision only or that the same time limit also apply to the case where a party does not accept the decision of the chiefs?”
30. Court’s view is that Section 14 (1) of the LCA will come into play only, when the local court had already seized jurisdiction and had already exercised powers and functions, in trying to resolve the customary land dispute, properly referred to it under Section 12 (1), (2) and (3) of the LCA. This view is supported by Section 13 (e) of the LCA, read with Section 14 (1) of the LCA, where one of the powers and functions of the local court is to refer a dispute it is dealing with to the chiefs, with directions it may consider necessary. When this happens, the local court is actually aware of the dispute and is delegating it with appropriate directions to the chiefs.
31. And so when the delegated task is duly completed by the chiefs and a decision acceptable to both parties is made by the chiefs, under delegated powers and functions of the local court (Section 13 (e) and Section 14 (1) of the LC Act), the parties to the dispute may within 3 months, cause a copy of the accepted decision to be recorded by the local court. When this happens; the delegation by local court is complete and an accepted chiefs decision recorded and becomes a decision of the Local Court – Section 14 (1), (2) and (3). It is not proper that the local court should record a chiefs decision and treat as its own, without prior knowledge about the dispute. Anyone who knows how a court makes a decision, would find it strange for a court to call a decision its own, without prior involvement and knowledge about the dispute.
32. Where under delegation the dispute is resolved but not accepted by both parties, then the local court may deal with the matter further and bring it to conclusion, under any of the directions, it had given when delegating the dispute to the chiefs under Section 14 (e) of the LCA. And then any decision of the local court is appealable to customary lands appeal court in 3 months.
33. To answer the question posed, the 3 months only apply to an accepted decision of the chiefs made under delegation. Where parties do not accept decisions of the chiefs made under delegation, the aggrieved party appeal to the next appellate court, the customary lands appeal court.

Conclusion and Orders

34. Accordingly this Court will remit the matter back to ILC for that court to properly perform its statutory functions and resolve the dispute.
35. Orders of the Court are:

35.1. Decision of ILC in case No 6 of 2015 delivered on 5^th day of June 2015 is hereby set aside.

35.2. Remit the dispute to be properly dealt with by ILC newly constituted.

35.3. Parties meet their on cost.

THE COURT
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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Ugra –v- Isabel Local Court (2012) SBHC 56; HCSI-CC 405 of 2011 (16^th July 2012).
^[2] Ugra –v- Bugoro (2007) SBHC 39; HCSI-CC 005 0f 2006 (19^th February 2007).
^[3] Muna –v- Billy (2003) SBHC 9; HCSI – CC 284 of 2001 (11^th December 2003).
^[4] Bavare –v- Nerapa (2011) SBCA 22; CA-CAC 21 of 2011 (25^th November 2011).
^[5] Section 256 (1) of the LCA.
^[6] Section 256 (3) of the LCA.
^[7] Holo –v- Mapo Development Company (2013) SBHC 65; HCSI-CC 92 of 2011 (11^th June 2013).
^[8] 2 major findings on the last page of the ILC decision.
^[9] Publication called “Judicial Decision: Crafting Clear Reasons” by the Ntional Judicial College of Australia (2008) at page 1 (www.njca.com.au).
^[10] Bavare –v- Nerapa (2011) SBCA 22; CA-CAC 21 of 2011 (25^th November 2011).