Vilitahula v Attorney General [2022] SBHC 23; HCSI-CC 84 of 2019 (7 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Vilitahula v Attorney General
Citation:
Date of decision:	7 June 2022
Parties:	Allan Vilitahula v Attorney General, Francis Durai
Date of hearing:	29 September 2022
Court file number(s):	84 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The appeal against the orders of the First Defendant is dismissed. 2. The decision of the First Respondent is therefore affirmed. 3. The case is remitted to the Ngella Local Court to be heard afresh by a differently constituted Local Court. 4. The Local Court is directed to conduct a site survey and produce a survey report. 5. The costs of this appeal are to be met by the Appellant.
Representation:	Mr R Tovosia for the Appellant Ms V Kisini-Muaki for the Respondent No Appearance For the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 256, S 256 (3)
Cases cited:	Campbell v Mafuara,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 84 of 2019

BETWEEN

ALLAN VILITAHULA
(Representing the Valanagela Clan of the Hogokiki Tribe of Big Gella, Central Islands Province)
Appellant

ATTORNEY GENERAL
(Representing the President of the Central Islands Province Customary Land Appeal Court)
First Defendant

AND:

FRANCIS DURAI
(Representing the Koisairi Clan o the Gaubata Tribe of Big Gella, Central Islands Province)
Second Defendant

Date of Hearing: 29 September 2021
Date of Decision: 7 June 2022

Mr R Tovosia for the Appellant
Ms V Kisini-Muaki foe the First Defendant
No Appearance for the Second Defendant

RULING

Introduction

1. This is an appeal from the decision of the First Respondent delivered on 21 November 2018. The First Respondent had quashed the decision of the Local Court given in March 2017 and remitted the matter back to a differently constituted Ngella Local Court to hear the dispute afresh. The Local Court was directed to conduct a site survey and produce a survey report after completing the hearing.
2. The Appellant has appealed that decision to the High Court. The grounds of the appeal are set out in the Amended Notice of Appeal as follows:
   • 2.1 “That the secretary of the Central Province Customary Land Appeal Court (CPCLAC) had erred in fact to accept that the parties have agreed that there was no survey carried out over the land the subject of the proceedings.
   • 2.2 That the secretary of the CPCLAC had erred in fact to hold that there was no survey carried out either by the Local Court or the Panel of Chiefs, whilst dealing with the complaint over the case of the land the subject of the proceedings.
   • 2.3 That the secretary of the CPCLAC had erred in law and failed to consider that at paragraphs 5, 7, 9 and 16 of the Local Courts decision, the court stated that the chiefs did went to survey the Taotaomaleibulima land the subject of the proceedings.
   • 2.4 That the Local Court in its judgment of the 4^th of May 2017 had comprehensively considered the evidences of the parties (at the local hearing) and rightfully declined to accept the evidence of the Appellant as truthful.”

Ground 1

3. Section 256 of the Land and Titles Act deals with appeals to and from the Customary Land Appeal Court [“CLAC”]. Subsection 256(3) limits the jurisdiction of this Court hearing appeals from decisions of the First Respondent to grounds of appeal alleging the decision or order of the CLAC is erroneous in point of law. Subsection 256(4) makes the decision of the CLAC and where appropriate the High Court as final decisions. Those subsections provide:
   • “(3) Any person aggrieved by any order or decision of a customary land&#ppeal court may withiwithin three months from the date of such order or decision, appeal therefrom to the High Court on the grouat such decision or order is erroneous in point of law (which expression for this purpose sose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.
   • (4) Any order or decision of the High Court, and, subject to subsection (3), of a customary land appeal court, in each case given in exercise of the jurisdiction conferred by this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever.”
4. It follows that the decision of the First Respondent is conclusive and not subject to appeal unless it be an appeal on a point of law.
5. The first ground of appeal does not claim to be on a point of law but of fact. In any event the ground of appeal mis-states the finding of the First Defendant. The First Defendant at paragraph 10 and 11 of its decision said: “10.For the present case, both parties conceded that there was no survey done by the Local Court on the claimed Taboo sites, landmarks, graveyards, marks of early settlement and cultural properties claimed by either side. Why this was not done is unknown.
   • We are mindful of the decision of Campbell v Mafuara that the decision to conduct the survey of taboo sites is discretionary on the court. However, in cases where the identification of the historical cultural features is decisive, the court must carry out that means in order for determination of the case.”
6. The First Respondent did not say that no survey had been carried out over the land, it said it had not been done by the Local Court. In any event the point is clearly a matter of fact not a point of law. This Court has no jurisdiction to interfere with the decision of the First Respondent on this ground.

Ground 2

7. The second ground is simply repeating what is claimed in Ground 1 and again mis-states the finding of the First Respondent. The Court did not find that there was no survey carried out by the Panel of Chiefs. In any event this Court does not have the jurisdiction to interfere with the finding of the First Respondent on this ground as it does not allege an error of law.

Ground 3

8. The third ground claims to be an error of law. The four paragraphs identified by the Appellant in the decision of the Local Court are 5, 7, 9 and 16. None of those deal with the findings of the Local Court. They are each summarizing evidence of witnesses before the Court. Paragraphs 5 and 7 summarise the evidence of the Plaintiff (the Second Respondent in this Court). Paragraph 9 summarises the evidence of the Defendant (the Appellant in this Court). Paragraph 16 summarises the evidence of Stephen Lagi (a witness called by the defence).
9. In paragraph 5 there is reference to a survey in which the Second Respondent claimed the Appellant did not show any land marks within the area in dispute. In paragraph 7 the Court records that the chiefs failed to consider the land marks of Rosairi Gaubata. In paragraph 9 the Court recorded that the Appellant claimed the Second Respondent did not show any land marks within the land. It also set out what the Appellant claimed was the land in dispute being: “from Saritidalo on the western end of the coastline and leads up to the hill or ridge where Taotaomaleibulima land”. At paragraph 16 the Court records that Stephen Lagi stated that he had shown his land marks at Ngoinoti and Takake at the chiefs hearing.
10. In the submissions of counsel reference is made to paragraphs 6 and 8 of the Local Court decision in addition to paragraph 7. Those paragraphs do not take the matter any further.
11. Counsel submitted that the chiefs had drawn conclusions from the customary evidence and that the Local Court simply upheld what the chiefs had said. He said that the evidence of the Appellant was irrelevant and vague and raised issues for consideration that the appeal from the Local Court should have been disallowed.
12. Counsel submitted that the Local Court judges were not from the vicinity of the land in dispute. He submits that this means they would not have a clear knowledge of local custom. The submission therefore is that the First Defendant should rely on the findings of the chiefs. This appeal however is an appeal from the findings of the First Defendant not an appeal against the findings of the Local Court. Further, counsel submits that a survey by the Local Court is not necessary, however the submissions put forward under that heading were simply a criticism of the evidence of the Second Respondent.
13. What is clear is that the chiefs may have looked at the sites identified but there was no documented survey available for the Local Court or for the First Respondent. The conflict between the parties is such that it is understandable why the First Defendant could not resolve the matter without the benefit of a survey available for the hearing. The First Respondent There is nothing put forward to support the submission that the First Respondent failed to consider the paragraphs identified. The sworn statement of Augustine Sylver Aulanga makes it clear that the First Respondent considered that in the circumstances of this case a site survey of the land by the Local Court would be crucial to determine the ownership of the land. It was within the power of the First Defendant to come to such a conclusion. Ground 3 of the appeal is therefore dismissed.

Ground 4

14. It is a mystery what ground 4 actually. It simply makes a statement that the Local Court did not accept the evidence of the Appellant (the Second Respondent in this Court). No error of law is identified. The ground put forward appears to be a submission that because the Local Court rejected the evidence of the Second Respondent as untruthful, the First Respondent should have dismissed the appeal.
15. The problem with this ground is that it fails to show what error of law was made by the First Respondent. As a result, ground 4 must fail.

Orders

1. The appeal against the orders of the First Defendant is dismissed.
2. The decision of the First Respondent is therefore affirmed.
3. The case is remitted to the Ngella Local Court to be heard afresh by a differently constituted Local Court.
4. The Local Court is directed to conduct a site survey and produce a survey report.
5. The costs of this appeal are to be met by the Appellant.

By the Court
Justice Lawry
Puisne Judge