Misiti v Efoliramo [2019] SBHC 44; HCSI-CAC 10 of 2019 (20 May 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Misiti v Efoliramo
Citation:
Date of decision:	20 May 2019
Parties:	Nathan Misiti, James Suugegeo, Marlon Riiolo v David Efoliramo, George Linganafelo, Benjamin Lota’a
Date of hearing:	14 May 2019
Court file number(s):	CAC 10 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	Matter remitted for rehearing by a differently constituted Malaita CLAC No order for cost
Representation:	Mr. Radclyffe for the Appellants Mr. Fa’aitoa for the Respondents
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s256 (3)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Appeal Case Number 10 of 2019

NATHAN MISITI
First Appellant

JAMES SUUGEGEO
Second Appellant

MARLON RIIOLO
Third Appellant

V

DAVID EFOLIRAMO
First Respondent

GEORGE LINGANAFELO
Second Respondent

BENJAMIN LOTA’A
Third Respondent

Date of Hearing: 14 May 2019
Date of Judgement: 20 May 2019

Mr. Radclyffe for the Appellants
Mr. Fa’aitoa for the Respondents

JUDGMENT

Background

More than 20 years ago on 28^th June 1998, the Malaita Local Court held that Morris Misitini, Bartholomew Riolo and their clan were the rightful primary owners of Alilo Customary Land. The above-named persons were the defendants in the Local Court hearing and belong to the same clan as the present appellants.
The present respondents were the plaintiffs in the Local Court case in 1998. After losing the case in the Local Court, they, on 20^th September 1998, filed an appeal with the Malaita Customary Land Appeal against the Local Court decision.
For some unexplained reasons, the appeal lay pending and unheard for 20 years in the Malaita Customary Land Appeal Court. After 20 years the Malaita CLAC finally heard the appeal on 6th November 2018 and made its decision dismissing the appeal on 9^th November 2018.
Since the Local decision in 1998, some of the original parties on both sides have since passed on and are replaced by substitutes in the present proceedings. The present appellants were the substitute’s replacement of the defendants in the Local Court and respondents in the Malaita Customary Land Appeal Court.
The appeal now before this court is an appeal against the decision of the Malaita Customary Land Appeal Court judgment delivered on 9^th November 2018, brought under section 256(3) of the Land and Titles Act, Cap133,
The grounds of appeal are set out the notice of appeal filed on 15^th January 2019, they are set out herein;

• 1.1 The Malaita CLAC, having dismissed the 5 grounds of appeal and said at paragraph 8 of the judgment-
  • “In the result, we dismissed the appeal in its entirety but since the appellant has raised serious issues about the local court decision, we have decided to review the evidence here pursuant to our powers under s255 (4) of the Land and Titles Act.”
• 1.2 The Malaita CLAC was wrong in law to review the evidence having already dismissed the appeal in its entirety. Section 255 (4) of the Land & Titles Act does not give the CLAC power to uphold an appeal when it’s already been dismissed.

2. The Malaita CLAC’s decision was unjust and not in accordance with section 256 (2) of the Land and Titles Act. It was unjust because the Malaita CLAC, having dismissed all the appeal points, then reversed the local court decision after a period of 20 years without giving the parties the right to be heard and in breach of the CLAC’s powers under the Land and Titles Act.
3. The Malaita CLAC having dismissed all the appeal points was functus officio and had no power to retry the case.

The Appellants seek the following orders in lieu of that appealed from:-

1, The Malaita CLAC had no power to uphold the appeal, having already dismissed the appeal in its entirety.
2, That the decision of the Local Court in Land Case 8 of 1997 stands.
3, The Respondents to pay the cost of this appeal.
Mr. Radclyffe, for the appellant, referred to paragraph 8 of the CLAC judgment and submits that the Malaita CLAC having dismissed the appeal in its entirety was functus officio from re-entry the case and reviewing the Malaita Local Court decision.
Counsel for the respondent, Mr. Fa’aitoa, on the other hand, took a contrary view and submits that section 256(2) allow the CLAC when considering Local Court decisions appealed against has the powers to substitute its own decision for the decision appealed against. He submits that what the appellants were not happy with is the Malaita CLAC after dismissing the appeal went on to review the Local decision and its judgment. He submits that the question this court should ask is “whether the Malaita CLAC did something which the law forbids it from doing? He questions whether there is a written law which regulates the work of the CLAC and that the work of the CLAC and how it conducts itself is not regulated by any statute. He pointed out that the CLAC is the last and final venue to determine facts and customary law in customary land disputes.
Mr. Fa’aitoa disagrees with Mr. Radclyffe’s proposition that after dismissing the appeal the CLAC becomes functus officio. He submits that section 256(4) of the Lands and Titles Act, clearly states that the CLAC has all the powers of the Local Court and has the discretion to exercise those powers. He went on and submits that when the Malaita CLAC decided to exercise its powers, it was proper and lawful
I had considered the submission of Mr. Fa’aitoa made on behalf of the respondent. With respect, while the submission was interesting it has misinterpreted the provisions of the Land and Titles Act. I accept the Malaita Customary Land Appeal Court erred in law by dismissing the appeal and then going back to review the evidence and substituting its own decision for the Local decision. As correctly submitted by Mr. Radclyffe that having dismissed the appeal in its entirety the Malaita CLAC was functus officio
It is correct that the CLAC may substitute its decision for the decision appealed against but my view is the CLAC can only substitute its own decision to the decision of the Local Court if determine that the Local decision was wrong and upheld the appeal. It cannot substitute its decision in favour of an appellant whose appeal has already dismissed. In the present case, the Malaita Customary Land Appeal Court dismissed the appeal but then went on and rule in favour of the appellants in the CLAC. That is an error in Law. Section 256(2) states that the CLAC may substitute its decision for the decision appeal against but what the Malaita CLAC did in this instance is not what was envisaged in section 256(2) of the Land and Titles Act, Cap 133.
In that respect I accept the submission of Mr. Radclyffe that the Malaita CLAC was wrong in law to review the evidence before the Local Court having first dismissed the appeal in its entirety and that section 255(4) of the Land and Titles Act does not give the CLAC power to uphold an appeal when it has already dismissed the appeal.
In considering the appeal, I find that the Malaita CLAC erred in law when it declared it has dismissed the appeal in its entirety but then went on to uphold the appeal. The appeal is allowed. Having considered the circumstances of this case, I order that the matter be remitted to the Malaita CLAC to be heard de nevo by a different Constituted Malaita Customary Land Appeal Court.

Orders

Matter remitted for rehearing by a differently constituted Malaita CLAC
No order for cost.

THE COURT
JUSTICE E KOUHOTA
PUISNE JUDGE