Bako v Kolly [2019] SBHC 71; HCSI-CC 230 of 2014 (23 August 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bako v Kolly
Citation:
Date of decision:	23 August 2019
Parties:	James Bako and Francis Sesi v Derrick Kolly and James Mane Fory
Date of hearing:	3 June 2019
Court file number(s):	CC 230 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:	Appeal from Customary Land Appeal Court
Order:	The appeal must therefore dismiss in its entirety Costs to be borne by the Appellants payable to the Respondents on standard basis
Representation:	Mr. G Suri for the Appellant Mr. N Ofanakwai for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act
Cases cited:	Puleipi v Attorney General [2015] SBHC 8 Solomon Island Telekom Company ltd v Trade Dispute Panel [2002] SBHC 99 Buga v Ganifiri [1982] SILR 119 Sibisopere v Karovo [1997] SBHC 115 Kovelau v Kogana [1994] SBHC 61 Ugra v Isabel Local Court [2012] SBHC 56 Lilo v Panda, Lilo v Ghotokera [1981] SBHC 12 Luna v Boaz

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 230 of 2014

JAMES BAKO AND FRANCIS SESI
(Representing the Vihuvunagi Tribe)

V

DERRICK KOLLY AND JAMES MANE FORY
(Representing the Posomogo-Mou Clan)

Date of Hearing: 3 June 2019
Date of Judgment: 23 August 2019

Mr. G Suri for the Appellant
Mr. N Ofanakwai for the Respondent

JUDGMENT ON APPEAL FROM CLAC

Faukona PJ: This appeal was filed by way of an Amended Notice of Appeal, pursuant to Section 256 (3) and (4) of the Land and Titles Act (the “Amended Notice”).

2. The Amended Notice was preceded by the initial notice which contains the grounds of appeal and which was filed on 23^rd July 2014.
3. The notice of appeal seeks to challenge the decision of the Isabel Customary Land Appeal Court (ICLAC) dated 24^th April 2014, in which it upheld the decision of the Isabel Local Court (ILC) delivered on 26^th July 2013.
4. The decision of the Local Court is that the Respondents’ clan posomogo was the rightful owner of the garanga/kasera customary lands. By dismissing the Appellant’s appeal to the CLAC, it thereby affirmed the Local Court decision of 26^th July 2013.

The customary land in dispute

5. The land concern varies from party to party in respect to name, description and location.
6. The Appellants describe their land as garanga/lageba customary land. And kasera customary land is the land owned by the Respondents. Situated between the two customary lands is bitiama customary land and is owned by the posomogo - teko clan.
7. The Appellants also asserted that the Respondents had enlarged their ownership of kasera land to include bitiama land and garanga/lageba land.
8. The Respondents version is that garanga customary land is the coastal portion of the main kasera customary land.
9. The Respondent’s had lodged a judicial review challenge in Civil Case No. 455 of 2009, in the High Court, related to the decision made by the Isabel Local Court on 28^th July 2007, whereby which the ownership of garanga customary land was in favor of the Appellants, whilst the ownership of kasera customary was awarded to the Respondents.
10. By order of the High Court on 26^th November 2010, the Isabel Local Court was directed to rehear the dispute as to the ownership of garanga/kesera customary land.

The boundaries of the Land.

11. In describing the boundaries of the land in dispute the Appellants pointed out that in Gao Bugotu Chiefs in 1975 when deciding the dispute between Francis Sesi of Vihuvunagi tribe against Basil Lolou of posomogo tribe; the Chiefs held that the boundary of posomogo land is from beakopi to taporo at the sea coast, and up to lelesiana mountain, and then down to gilamala, and down again to kokoga, then right back to taporo.
12. In 2003, the East Bugotu Chiefs in their decision concerning kasera/garanga land described the boundaries as from taligi, koakoga, kumou to garanga and including the reef bathego. In 2013, the Isabel Local Court described the Respondent’s kasera land as from hugu pasagu (kolopito) along the baehoto stream then to gai luti thence huehule then up to loguato then to tobathanga and then to tagathaga including bathego, the reef, then up to nahu thobio, then koakoga, then down to taligi.
13. The Appellants maintain their claim that the land known as garanga land is a portion of lageba customary land.
14. On the other the Respondents claim that garanga land is the coastal portion of the main kasera land.
15. Dispute arose when the Appellants were identified as trustees to grant timber rights in respect of lageba customary land. According to the Appellants version, garanga land was part of lageba land, therefore was covered by the concession.
16. That is quite distinguishable from the Respondents version. They asserted that garanga land was part of bigger kasera land which covers the coastal area, see map Exh.DK7 attached to the minute of the East Bugotu Chiefs hearing. There are about six Ks which marked the boundaries. The Bugotu Chiefs also surveyed the land in dispute.
17. It would appear the eastern boundary of kasera and garanga lands is Loguhutu River. From the river along the coast line is the garanga customary land according to the above map.
18. When the East Bugotu Chief heard the ownership issue in regards to kasera and garanga lands; did refer to all that land from luguhutu river in the east and goes westward right into the bay to a point or village called kasera. Maps that provide assistant to ascertain the general boundary is shown in the map Annexure “OH-1” and the original copy map. The three maps attached to the Defendants’ submissions are also assisted in formulating that certainty of the general boundaries.
19. Hence, when the East-Bugotu Chiefs and the Isabel Local Court dealt with kasera and garanga customary lands they refered to all that land including the land the Appellants claim, as lageba land. That was well identified by other two maps attached to the Defendant’s submissions, where kasera and hinaba customary lands were shown.

Jurisdiction of the Court.

20. “S. 265 of the Land and Titles Act provides right of appeal from the Local Court to a Customary Land Appeal Court. A Magistrate, usually a Principal Magistrate sits as the clerk to such court. Basically, to advice on a point law and procedures whenever they emerge. Matters of custom are left to the court itself. There is then a further right of appeal to the High Court on a pint of law, or any other ground of failure to comply with any procedural requirement of any written law”
21. In the case of Puleipi V Ag^[1] the Court of Appeal set out certain guidelines. The relevant paragraph is (14) which states that in an appeal from Executive determination in respect of timber rights hearing, “the powers of the Court are restricted to those matters but it has a duty to consider any such matter properly brought to it on appeal from either of those two paragraphs. If on appeal includes issues of law relevant to those matters, it is within the Court’s jurisdiction to decide them. If they do not fall within the scope of paragraph (b) and (c), the Court should decline to hear them.
22. What the Court alluded to is that any issues flow or arising out in relation to paragraph (b) whether the propose persons to grant timber rights, represent all persons and are entitled to grant such rights and (c) in respect to sharing of profits with the landowners. Once an issue of law is properly raised in those two circumstances, on appeal, then Customary Land Appeal Court should hear them.
23. Still on the issue of question of law, the case of Solomon Telekom Company Limited V Trade Dispute Panel,^[2] Kabui J said, “I would place emphasis on the statement by Lord Denning MR in above quotes that any provision permitting an appeal on a point of law is always interpreted “widely and liberally”.
24. In Buga V Ganifiri^[3], the Court held;
    • “the Court has only power to consider point of law (excluding points of custom) or defects in procedure based upon written law. If no reasonable tribunal could reach the finding made by a customary land appeal court or the evidence before it, then if say be that the Court could and should exercise its powers to intervene. If for this Court to say that it does not agree with finding of the facts or custom reached by Customary Land Appeal Court would be assumptive of powers which this Court does not process”.
25. The Court has manifestly upheld that if a CLAC has mistaken in its function that is an error of law and the CLAC has acted beyond jurisdiction. Its decision will therefore be liable to be quashed.

Ground of Appeal 1.

26. This ground is constructed as an alternative ground. The first part or option attested that the Isabel Customary Land Appeal Court (ICLAC) errored in law in dismissing the Appellants first and second grounds concerning the correctness of record of minutes of Isabel Local Court on the basis those were questions of law beyond the jurisdiction of the CLAC.
27. The Appellants submissions further state that in doing so the CLAC failed to perform its functions to make a just decision. In declining to examine the correctness of the Local Court record, the CLAC was refusing to execute jurisdiction.
28. From the written submissions made by the Appellant to the CLAC of which I perused, it referred to a number of things. They are the minutes or record of the ILC is not true, and secondly that ILC failed to do proper recording.
29. In perceiving that as a specific submission, in my view, does not uphold the two separate issues. In my opinion its one issue germinating out from another. When minutes are not properly recorded, of course it may tantamount to incomplete, fake, or incompetent by the clerk, if it diverts substantially from the real issues to be determined by the Court. As such ought to be properly and diligently examine before making determination on.
30. Of course I would agree if the clerk deliberately ignorant or failed to record correctness of court record and for not considering its correctness, is a point of law. The case of Sibisopere V Karovo ^[4], which Muria CJ Stated;
    • “It is very difficult to keep a full record and complete record of the proceedings in the absence of Court recording machines. Not only that the Local Courts have this difficulty but all Courts in this country. Perhaps one day this difficulty may be resolved. But at this stage the Courts do their bests they can to keep records of their proceedings. Where however a matter of substantial importance to the proceeding is said in Court, either by the Court or the parties that must be noted down. If the court clerk omitted that and the parties present had it written down, the parties or a party noting it, can ask the Court to include that in the record of proceedings. Where that has not been done and it can be shown on appeal that the record is incomplete the appellate Court having been so satisfied may allow those matters noted down by the parties or party during the proceedings below be considered as part of the record”.
31. In that case His Lordship the Chief Justice Muria was satisfied that the record kept by the Court clerk was incomplete and the Appellant should have been allowed to adduce evidence to show to enable the Customary Land Appeal Court to consider the issue raised before it relied on full and complete record of the Local Court proceedings.
32. He continued that was to ensure the records of the proceedings before the Local Court were carefully kept and such challenge on the Court records will not occur or at least minimized. Each case depends on its own circumstances.
33. The argument is that the issue of correctness of the Local Court minute was a matter the CLAC could have dealt with. However, the above decision seems to advocate that the incompleteness of the record must be shown to be so. Or that a matter of substantial importance was not noted down. In any event the CLAC must made inquiries and consider. An important matter is if a party kept his own record that can assist by comparing with the record of the Court. If there is none, then there is no evidence to support such allegation.
34. I have perused the Appellants submissions to CLAC and I noted that submission did not show any short comings in the records of the Local Court. Generally the Appellants were saying that important aspects in custom that defines their rights as original and true owners of lageba/garanga customary land. Also alleged was the genealogy which was not properly recorded in the minutes, as well as tambu sites. Witness statements had been misrepresented as compared to what was recorded in minutes against the submissions.
35. In terms of the claim that garanga land is not part of kasera but a name given to an area owned by the Appellants’ tribe. It ought to be noted, in any litigation there are two sides of the stories. The court will accept a version of the story it thinks convincing. It is quite rare that the Court will accept both sides of the stories, thought it may occur on rare occasion.
36. I do not think that the written submissions by the Appellants in CLAC contained any merit. It was never shown a substantial matter was not recorded or missed out in the minutes of the record. There was no comparison to any personal record by the Appellant if they ever kept one. Point one contain a general kind of submissions; submissions that normally expected from a party who was unsuccessful in their challenge.
37. The written submissions before the CLAC were to correct the incorrectness of the record of minute of the Local Court. The CLAC would have taken note of. Whether to accept it or not depended on them. The written submissions were something on paper. The rational was to correct the record of the Local Court on paper. Undoubtedly the written submissions became part of the record of the CLAC, which the CLAC undoubtedly had considered. To regard it as a point of law and not considered is awfully not the case.
38. I noted paragraph (38) in the Respondent’s submissions quoting paragraph of CLAC’s decision. It states;
    • “This Court has no jurisdiction to fully deliberate on issue pertaining to elements of law, however, for the purposes of this judgment, the administrative accounts of the Local Court records have no error in them. In the record, both parties made submissions orally and written account. Their genealogy, history, taboo sites and evidence from witnesses are summoned and recorded. From that submissions, the Local Court assessed and summarized the evidence and determined. This ground of appeal is dismissed”.
39. In fact the CLAC did mention it has no jurisdiction because it contains elements of law. However, they had made inquiries and they found there was no error committed by the Local Court. If there were errors the submissions by the parties to the CLAC would have corrected those errors by explanation as to what ought to have been done in correcting the Local Court record. The CLAC after submissions, were entitled to consider all the submissions before it and had arrived at a conclusion. It did consider the issue of alleged errors in the minute of the Local Court record.
40. A Court cannot arrive at a conclusion without weighing the evidence before it. To allege the Court had failed to properly assess the records, take note, recognized and record the evidence is a mere assumption.
41. Selection of CLAC members was carefully done. With the appointment of a CLAC clerk, who is a Magistrate with law background is a real bonus to the CLAC membership. Those members are men with experience and vast backgrounds and knowledge of how to deal with appeal in customary lands. Therefore to describe them in such manner, as in this appeal point, is equivalent to telling them they have not performed their functions at all. Because all that is expected of them were discredited, and there is nothing more left. The level they were placed in is as bad as being not having a CLAC Court at all in Isabel Province.
42. In the case of Kovelau V Kogana^[5], which His Lordship Justice Palmer (as he was then ) stated;
    • “It is for the Local Court to decide what weight it should attach to the evidence as adduced in chief, and under cross-examination... it would be really a matter for the Local Court to assess as to credibility and reliability”.
43. So far, the lower land courts have done a good job, though often they are labelled various descriptions by the parties whom the decisions were not in favor of.
44. The Appellants also pointed out certain particular issues as not being considered. One was related to tilasavo which was identified as first arrival site. The Local Court recorded that in tilasavo was a burial site. The argument rationalizing this particular site is that it was the first landing point of the discoverer who was the founder of the Vihuvunagi tribe.
45. As I have mentioned earlier that in any litigation there are two sides of the story. The Respondents had their site of first arrival at kasera. The Appellant denied that because they did not have a shrine. Whether the Respondents had a shrine at the first landing point or not, at least the party had provided to the Local Court facts which contained two stories before it. The same approach could be done by the CLAC. Not necessary that the CLAC must conduct a survey to proof the truth of which story. The Local Court had made a survey and it was up to CLAC to conduct another one. If they decided not to, then that was it.
46. The issue of first settler and any reminiscent as shrine, taboo site etc, or any activities, should be the same evidence which had been moulded through the Local Court. If the Local Court did not consider, then of course the CLAC will do. In reality those customary issues had been shifted through the Local Court and CLAC, and there is no evidence that CLAC refused to consider. It did and conclusively made its judgment.
47. The fact that the judgment went the other way had prompted allegation that those facts were not considered. That cannot be accepted. Indeed by dwelling on the same customary issues, is an attempt to urging the CLAC to reconsider customary issues which had been considered by the Local Court? By alleging the customary issues were not been weighed and generally not being considered, is urging this court to adjudge issues which falls within the jurisdiction of the lower land courts, hence, this court must in such circumstance lacks jurisdiction. Breaches of point of law and procedures are clear. Lack of consideration as an allegation for not performing can only prevail where there is evidence available of a substantial shortcoming which will negate performance. I do not see that as a persistent prevailing situation in this case.
48. The CLAC had done its part considering all facts which at the end thereof made its determination. All Court decisions may not settle the cause of litigation. A cause of action may have exhausted all legal avenues but someone will still not be satisfied with any decision, see Kovelau v Kogana which stated that it is for the Local Court to decide what weight to attach to evidence and assess as credible and reliable. That ruling would also apply to CLAC as well.
49. Another issue raised is the failure by the CLAC to deal with the Appellants’ map tendered with historical and taboo sites. The Appellants argue that the Local Court had failed to recognize the evidence that Chiefs from Gao Bugotu had decided in 1976 in respect of the Common boundary between bitiama land and lageba Land. That there is evidence which showed there was no common boundary, or overlap between Appellants and Respondents customary lands.
50. Most of the issues raised in this appeal are question of customary facts which the Local Court and CLAC had dealt with. I do not think CLAC had avoided it deliberately. I have said there were two stories in a land dispute and the CLAC is obliged to belief one side of the story unless otherwise which is open to it to adopt and affirm an option. The Appellants’ assertion of ownership in custom and the boundaries of larger portion of land were discredited by the Respondent’s witnesses who are from the neighboring clans and tribes.
51. If the Local Court failed to consider a letter from the former Paramount Chief of Isabel, late Sir Dudley Tuti, on 8^th November 1991, that garanga land was owed by the Appellant’s Vihuvunagi Tribe. The question to pause is was the letter by the Paramount Chief bound the parties to a statutory constituted Court. I don’t think so. The document cannot be accepted to influence either the Local Court or CLAC. Both Courts are land Courts providing avenue where land disputes could refer to. If they are Courts then no influence from anyone outside must be accepted, or influence the mind of the Court. Court must be impartial in their decision making and actions. To uphold justice as paramount principle prevailing in the judicial function, outside influence must be rejected and let justice be done, and not only that but must be seen to be done. With those reasons this ground of appeal must be dismissed accordingly.

Misdirecting witness statements.

Ground 2.

52. The Appellants contended that CLAC had failed to recognize the error made by the Local Court, by accepting the Respondents’ witnesses, hence reached a wrong conclusion.
53. In paragraph 44 above and other paragraphs as well, I have pointed out the customary evidence before the Local Court were indeed submitted tendered to the CLAC. Both Courts had discredited that evidence. What more is left for this court to consider. That customary evidence was orally tendered to the courts in respect to ownership, taboo sites and boundaries. Both Courts had considered them all. The CLAC in its quote remarked earlier at paragraph (33). The CLAC had pronounced in general that that same evidence that were available before the Local Court was re-raised aggressively for a new approach and determination. However the emphasis raised is in respect of the boundaries of kasera customary land, whether it stretched all the way to tuguhutu, boko and thagathaga. Three witnesses also gave evidence in respect to land purchase.
54. The witness Mr Maneia told the Court that Marseli Suara bought tuguhutu land from posomogo tribe of Seline Seuseku. The fact that Maeseli Suara had never given evidence in Court, probably neither attended. Another witness Maneia attempted to convince the Court to belief that the purchase transaction was true. In fact his evidence was hearsay. Mr Marseli Suara was never intended or even called as a witness to give oral evidence.
55. The witnesses Lonsdale Bako and Mathias Koli said they had purchased lands at boko and thagathaga from the Appellants tribe respectively. The flaw in those purchase transactions as evidence is that, if that transaction were done before the Chiefs decision on 6^th February 2003 which was referred to the Local Court, then was the appeal to CLAC and then to this Court, it might, in my opinion the lands were sold by person who was not the true landowner. Or that those lands were outside of the land claim by the Respondents.
56. However, a better answer was given by the Respondents that they never asserted any claim, or right of ownership to those lands. They were outside of the main kasera and garanga customary lands. And the CLAC was right in recognizing that fact.
57. In the case of Kovelau v Kogana^[6], which the Court stated;
    • “...If the Local Court heard the witnesses on both sides and observed them giving their statements. It (the Local Court) therefore, was in a better position to make determinations as to questions of credibility”.
58. That was exactly what the Local Court entitled to do in assessing the evidence before it, before arriving at final determinations. The CLAC had reviewed the evidence and offered no change but affirmed what the Local Court had done and the decision then was finalized.
59. The Appellants seem to rely on the decision of Gao Bugotu Chiefs in 1976, which they urged should have been considered by the East Bugotu Chefs decision in 2003. The flaw of that submission is that the current Respondents were not a party to the 1976 case.
60. What actually transpired that this appeal initially germinated from The East Bugotu Chiefs decision in 2003, and not from the Gao Bugotu Chiefs decision 1976? In my opinion the relevance of the 1976 decision is limited from this case. In the case of Ugra v Isabel Local Court, His Lordship Chetwynd J stated
    • “The decision in this case is a land dispute between two parties Ugra and Vasula. It binds no except the two of them and their immediate relatives. Decisions in land are usually referred to as decision inter parties; they are not decision in rem (against the rest of the world)”.
61. This appeal germinated from the East Bugotu Chiefs decision in 2003, when the first reference was filed with the Isabel Local Court. It would be out of proportion and context if the Chiefs in 2003 and the Local Court would consider the 1976 Chiefs decision. That decision was never referred to the Local Court. What the Local Court and the CLAC did was that they confirmed the decision from which the reference was filed. In that instance, I am of the view that was the most appropriate exercise to do.
62. To attempt to acquire assistance from a decision or a document which was never part of the reference case is a futile exercise which must be condemned by law. Any document not part of the reference case must be ignored and cannot be accepted to be considered as a proper approach. I feel it is necessary to commend the Chiefs and the Local Court in acting within the bounds of their jurisdictions.
63. With those reasoning I therefore adjudged that this appeal point must be dismissed as well.

Appeal point 3.

Misdirection of site survey.

64. The Appellants contended that the CLAC was erred in law in accepting the site inspection carried out by East Bugotu Chiefs in 2003. The error which was the major focus that the boundary lines shown in a map (green and orange) marked Annexure “H-3” were inconsistent and exaggerated. As alleged there are big difference between boundaries shown in the Chief’s decision and boundaries stated in the Local Court which was larger.
65. Therefore the CLAC had failed in its judicial function to properly adjudicate the focused issues of overlap between land owned by the Appellants and land owned by the Respondent, or whether garanga was part of lageba or kasera.
66. A site inspection of the land in dispute is an important integral part of the process in the lower land courts. It is crucial exercise which will assist the court determine the ownership of the land. However, the decision to conduct a survey or site visit is only discretionary. There are number of authorities addressing this issue, but I opted to quote from the case of Luna v Boaz^[7], which Court states;
    • “There is no written law requiring Customary Land Appeal Court to visit disputed land the subject of an appeal before it. Whether or not the Court visits the disputed land is entirely a matter within its own direction”.
67. The same sentiment was echoed by Daly CJ again in Lilo v Panda^[8] and Lili v Ghotokera [1981] SBH12; (1980 – 1981) SILR 155 (3 June 1981d) that the decision to survey land is a matter felling within the direction of the Courts. The Courts refer to here are both the Local Court and the Customary Land Appeal Court.
68. It would appear that the alleged inconsistency of the size of the land in dispute, shown in Chiefs hearing and in the Local Court should render a call for site inspection by the CLAC in exercise of its judicial function to properly adjudicate the issue of alleged overlap between the lageba land and kasera land and whether garanga land is part of lageba or kasera land.
69. I noted from the submissions that Mr Allan Bako gave evidence affirming that the Chiefs had made a survey of the land the Respondents claim. Mr Bako was one of Chiefs presided hearing of the land.
70. The problem encountered by the Appellants was that they fail to attend the Chiefs hearing. Many people in this jurisdiction do not respect the Chiefs panel and its roles. Often they could refuse to attend return dates appointed for hearing of a particular land dispute. The Appellants had no excuse to attend. And they cannot now beg because they failed to attend and blame the CLAC for not recognizing and giving fair opportunity for them to show their interest on the land. The throw indeed comes back to them. It is significant and worthy to challenge anyone who interferes with ones right from the beginning. It shows that person has legitimate rights and interest and will defend at all costs.
71. The discretionary power to direct a site survey vests upon the lower land Courts. It may occur where the previous Court did not conduct a survey, or that there are conflicts in interest in respect of tambu sites, sacrificial places, old village sites, edible fruit trees and the boundaries. If the Court is satisfied that the evidence about those issues are clear and not in ambiguity then it can refuse to conduct a survey of the land. Or if a lower court had conducted a survey it may not be necessary to conduct another survey. In any event the court has discretion.
72. However, the Respondents submitted there was a map submitted in Local Court hearing (Annexure H.2). The map showed that garanga land is part of kasera land. It also indicated other lands owned by different land owning groups which the Appellants claim as being lageba land.
73. The Respondents further contended that the 2013 map may differ in size and lining on the map but does not change the original boundaries which the Chiefs had already dealt with during site inspection in 2003.
74. From the arguments and the record, I do not think the CLAC had failed to exercise its jurisdiction in failing to realize the big difference between land sizes in terms of boundaries tendered before the Chiefs and the Local Court. Hence it cannot be argued that such failure to take note, hence failed to direct or recommend another survey to be carried out by the Local Court.
75. If there is nothing wrong the CLAC cannot act by recommending another survey. In fact the CLAC had satisfied on the evidence tendered before it is sufficient. That will conclude in a decision which it did reach.
76. In assessing credible evidence by the Local Court or CLAC, is matter left entirely on them. Both lower land courts comprises of people familiar with the custom of the area, and years of being members of that particular Court, is a bonus. It is my opinion, those Courts cannot be expected to function in terms of assessment of evidence and credibility and hearsay evidence equivalent to a Judge in the High Court would do. Their knowledge is limited to history, genealogy and custom stories of the parties connected to that particular land. If we are to equate the entire functions of the Local Court and CLAC to that of the High Court, then the whole legal regime that set up and define the functions of those Courts, is an absolute illusion.
77. This appeal in my opinion is a camouflage, an attempt to urge this Court to consider all customary evidence already being heard and determined by the Local Court and the CLAC. The allegation that the CLAC had failed in its jurisdiction to consider, assess and direct the Local Court to do something, has given rise to this Court to consider and compare customary facts which the LC and the CLAC had considered and had made determination on. To regard that as a point of law, to be qualified to be entertained by this Court, has to be reassessed, otherwise this Court will venture into deciding the customary facts as a review Court which had been determined by the lower land Courts, and hence a question of jurisdiction. All in all I find the third ground must be dismissed as well.

Orders:

1. The appeal must therefore dismiss in its entirety.
2. Cost to be borne by the Appellants payable to the Respondents on standard basis.

The Court.

---

^[1] [2015] SBCA 8; SICOA-CAC 5 of 2015 (24 April 2015)
^[2] Civil case No 97/1998 (Unreported) 8^th January 2002.
^[3] Puleipi v AG, CAC No. 5 of 2015; see also Teibaga v AG [2018] SBHC 78, HCSI – CC 4 of 2016 (31 May 2016).
^[4] [1997] SBHC 115; HCSI - LAC 12 of 1996 (11 December 1997).
^[5] [1994] SBHC 61; HCSI – LAC 2 of 1992.
^[6] Ibid (6)
^[7] [CLAC No. 5 of 1979]
^[8] (1990 – 1981) SILR 155; [1981] SBHC 12 (3 June 1981).