Rifalea v Rarabu [2024] SBHC 1; HCSI-CC 441 of 2019 (9 January 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Rifalea v Rarabu
Citation:
Date of decision:	9 January 2024
Parties:	Sipriano Rifalea, Lonsdale Abba and Salome Beliga v Fredrick Rarabu and Allan Borokana
Date of hearing:	24 August 2023
Court file number(s):	441 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:	Malaita Customary Land Appeal Court
Order:	In allowing appeal grounds 1 and 2, I direct that the issue of ownership of Kwai and Toloisae land is referred to a differently constituted CLAC. The decision of the CLAC dated 12 July 2019 is set aside in its entirety. No orders as to cost.
Representation:	Mr Gabriel Suri for the Appellants Mr Chris Fakarii for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act S 12 (3), Land and Titles Act [cap 133] S 256 (3), Evidence Act S 4 (1), 11, 20 (2), 20 (3) and 23 (1)
Cases cited:	Buga v Ganifiri [1982] SBHC 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 441 of 2019

BETWEEN

SIPRIANO RIFALEA, LONSDALE ABBA AND SALOME BELIGA
Appellants

AND:

FREDRICK RARABU AD ALLAN BOROKANA
Respondents

Date of Hearing: 24 August 2023
Date of Decision: 9 January 2024

Mr Gabriel Suri for the Appellants
M Chris Fakarii for the Respondents

RULING ON APPEAL

Bird PJ:

1. This proceedings relate to an appeal from the decision of the Malaita Customary Land Appeal Court in CLAC 02 of 2019 held at Auki, Malaita Province on 12 July 2019. The lands in issue are Kwai and Toloisae. On 12 July 2019, the Malaita Customary Land Appeal Court (MCLAC) held that the Respondents are owners in custom of the subject lands. Being aggrieved with the said decision of the MCLAC, the Appellants lodged an appeal to this court.
2. In this appeal, the Appellants filed their original Notice of Appeal on 8 August 2019. An Amended Notice of Appeal was filed on 19 November 2019 and a Further Amended Notice of Appeal was filed on 30 October 2020. The grounds of appeal in that further Amended Notice of Appeal are the following:

Appeal Ground 1(a)

The CLAC erred in law when it construed and treated logging documents as documentary evidence of ownership of Tolisae land by the Respondents insofar as:

1. The logging documents were not conclusive or satisfactory evidence of customary ownership of land;
2. The Memorandum of understanding did express that the land area in dispute described as Tolisae was part of Subea Ano customary land;
3. The logging documents were made in year 2013 prior to the decision made by the Subea Chiefs in year 2017.

Appeal Ground 1(b)

The CLAC erred in law when it assessed and construed erroneously the oral evidence given by Sipriano Rifalea in response to the following questions asked by the Local Court.

• (i) Question 6 as recorded on page 6 of 10 of the Local Court transcript;
• (ii) Question 8 as recorded on page 7 of 10 of the Local Court transcript.
• The CLAC conclusion was contrary to the response given by Sipriano Rifalea.

Appeal Ground 1(c)

The CLAC erred in law in upholding the decision of the Local Court when there was clearly no convincing evidence before the Local Court to prove the Respondent’s claim that:
(i) Tolisae was paid by their ancestor and so became separate parcel from Subea Ano; and
(ii) Kwai was given to female of the Respondents and so become a separate parcel from Subea Langi.

The only basis for the Local Court to award ownership of Kwai and Tolisae to the Respondent is the alleged contradiction of evidence, which were erroneous conclusions unsupported by evidence.

Appeal Ground 2

The CLAC erred in law in not considering and determining that the jurisdiction of the Local Court was invoked by the actual referral made to it as set out in written statement filed pursuant to section 12 (3) of the Local Court Act; and that the Local Court lacked jurisdiction to re-set the issue in controversy for the parties without the parties consent.

• The actual referral was only in relation to alleged breach of natural justice; and not the issue of land ownership and boundary.

Appeal Ground 3

Appeal ground 3 remains as in the original appeal.
So appeal ground 3 in the original Notice of Appeal states:
There is no site visit to identify the boundary of Toloisae land which is in dispute and evidence of custom proofing the Respondents’ claim to the land.

3. In lieu of the appeal the following reliefs are therefore sought by the Appellants namely:
   1. An order setting aside the decision of the CLAC dated 12 July 2019 particularly in respect to the custom ownership of Toloisae land.
   2. An order that the dispute as to custom ownership of Toloisae land be remitted to a properly constituted Subea House of Chiefs for re-hearing.
   3. An order that the Respondents pay for the cost of and incidental to the appeal.

The case for the Appellants

4. In relation to this appeal, Mr Suri of counsel for the Appellants submits that his clients appeal is lodged pursuant to section 256 (3) of the Land and Titles Act (cap 133). That section provides:
   • s.256 (3) Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the grounds of failure to comply with any procedural requirement of any written law.
5. In relation to appeal ground 1 (a) of the Further Amended Notice of Appeal, it is the case for the Appellants that the CLAC erred in law when it construed and treated logging documents as documentary evidence of ownership of Toloisae land by the Respondents on the basis firstly that, the logging documents were not conclusive or satisfactory evidence of customary ownership of land. Secondly, that the Memorandum of Understanding did express that the land area in dispute described as Toloisae was part of Subea Ano customary land and thirdly that the logging documents were made in year 2013 prior to the decision made by the Subes Chiefs in year 2017.
6. Mr Suri had referred this court to certain provisions of the Evidence Act 2009 in support of his submission. This court is referred to sections 4 (1), 11, 20 (2), 20 (3) and 23 (1) of the Evidence Act. The summary of these provisions relate to the application of the Act to all types of cases. That the burden of proof is on the balance of probabilities. The provisions also state that irrelevant evidence are not admissible, they further provide on the issue of probative value that the court can put upon any evidence as well as the courts power to make inferences as to the relevance of a document or a thing.
7. It is submitted by Mr Suri that it is not succinctly clear as to the type of logging documents the CLAC had taken into account in their judgment of 12 July 2019. It is however submitted that the said documents would have been the Memorandum of Understanding (MOU) and the Supplementary Agreement (SA) attached as “JB1” in the sworn statement of J’ann Bouro filed on 4 August 2020.
8. It is submitted by counsel Mr Suri that the MOU and the SA were both dated 11 October 2013. These two documents was executed by the Appellants and Respondents party to curb any hostilities and for both parties to co-operate and respect each other. The only aspect on ownership of the subject lands was that Toloisae land was part of Subea Ano customary land.
9. It is the case for the Appellants therefore that the CLAC has erred when it attempted to draw inferences from the two documents. The submissions in support of that contention is that the main documents in any logging situation which are prescribed by law are the Standard Logging Agreement and the Form II Certificate (Certificate of Customary Ownership). It is submitted that these two documents cannot be overrun by a Supplementary Agreement or a Memorandum of Understanding. Secondly is that the content of the MOU and SA is clear in that the purpose was for the disputing parties to co-operate and respect each other and not to disturb each other. There is no admission in the two documents on landownership so that the CLAC is entitled to draw any reasonable inference from.
10. Further to the above is that the logging documents were made in 2013 prior to the decision being made by the Subea House of Chiefs in 2017. The logging documents therefore cannot prevail over the decision of the Chiefs as well as the Local Court.
11. In relation to appeal ground 1 (b) and 1 (c) of the Further Amended Notice of Appeal, these two appeal grounds are intended to be argued together and they both relate to appeal ground 1 (a). These grounds of appeal also relate to the statement of the CLAC on paragraph 1 (a) of its ruling at page 82 of the Appeal Book. “We are unable to be convinced on the balance of probabilities for the appellant...... This is added with the other evidences provided on file such as the Local Court proceedings and what the Appellant had already stated during the Local Court hearing regarding these Kwai and Toloisae lands....... The main basis is that the Appellants has evidence contradicting himself before this court ............”
12. Under the above stated grounds of appeal, it is argued that the CLAC had erred in law when it assessed and construed erroneously the oral evidence given by Sipriano Rifalea in response to the following questions asked of him by the Local Court:
    • Question 6 at page 40 and question 8 at page 41 of the Appeal Book:
    • Q6 -In your understanding are Kwai and Toloisae parcels of land as Subea land?
    • A6 -No, only tambu sites.
    • Q8 -You said Kwai and Toloisae lands were tambu sites. Who owns the tambu sites?
    • A8 -Rarabu owns Kwai. Allan Borokana owns Toloisae.
13. It is therefore submitted by counsel Mr Suri that the admissions of the Appellant Mr Rifalea as contained in the transcript of the Local Court is only to the existence of the tambu sites and not ownership of land blocks called Kwai and Toloisae. It was therefore illogical for the Local Court and the CLAC to assume that the Appellants admission was an admission of existence of land when the boundary of the said lands were not enquired into and proven. A land is defined by its boundaries.
14. It would seem obvious that the CLAC had treated the admission of tambu sites as admission of land ownership. It is submitted that whilst they have placed emphasis on the admission as against the evidence of the Respondents before the very same Local Court, the evidence of the Respondents before the Local Court was that Toloisae land was paid and Kwai was given to a female. The Respondents also said that Toloisae land is within Subea Ano and Kwai is within Subea Langi.
15. It is also submitted by Counsel Mr Suri that in Malaita communities, tambu sites are central to the issue of land ownership. It is more so submitted that because of that, tribunals must investigate, consider and determine the types and significance of those tambu sites to each party. Many Local Courts and CLACs in Malaita have made decisions which have recognised the existence of different types of tambu sites in the form of sacrificial sites, burial sites, shark/snake caves, old village sites or even sites of witches or devils (not ancestors), There are also different sacrificial sites like sites for worshipping to ancestor of the land, and sites for offering sacrifices for blessing and protection. A stranger on the land can set up the latter sacrificial sites. It must be noted however that the principal tambu site is more significant than any other tambu sites.
16. Counsel had referred this court to the case of Buga v Ganifiri: HCSI- CC 12 of 1994 in which Chief Justice Daly stated “Occupation of land is not necessarily the same as ownership. In custom, it is very usual for a man to make his home and garden in another man’s land. This is based upon the principle that nobody is denied the right to live and to feed himself. Such people remain in the land for many generations, and for so long as they have quietly and without disturbance the true landowner raises no objection”.
17. It is therefore submitted on behalf of the Appellants that the long occupation described by Chief Justice Daly above, would have resulted in the existence of burial sites and the establishment of sites for offering sacrifices for blessing and protection to their own ancestors but not to the ancestors of the land.
18. Also in the Buga case, Chief Justice Daly also described the different types of land ownership in Malaita as original, gift, compensation, reward and purchase. Each type of ownership must be sufficiently proved to the tribunal.
19. It is submitted by counsel that in this appeal, the Appellants’ original ownership is not challenged. The Respondents admitted that the Appellants are the original owners of Subea Langi and Subea Ano customary lands. It must therefore follow that the ownership by gift and purchase must be weighed against the original ownership. In the normal state of things, there must be sufficient proof of a giver and a receiver. A witness from Subea should have been called by the Respondents to confirm or deny the alleged giving or purchase. That was never done by the Respondents.
20. It is also submitted by Mr Suri of counsel that in light of the above, the CLAC has a judicial duty and or obligation to make further enquiry on the issue of gifting or purchase of the subject lands. It was the case that the Appellant had stated in evidence before the Local Court that the Appellants do not know any land within their customary lands as Kwai and Toloisae. Those pieces of land were merely named as such by the Respondents for purpose of timer rights. The boundaries of the said lands were demarcated by the Respondents themselves which had over-run into the boundary of their Subea Langi and Subea Ano customary lands.
21. Before the CLAC, the Appellant Mr Rifalea stated that the Respondents had never given evidence in custom before the Local Court to prove their alleged ownership. There was no evidence of who had given the land; that it is given to who, it was given for what and the boundaries. See page 24 of the Appeal Book. It is therefore the case for the Appellants that the evidence of Mr Rifalea was very strong to require the Local Court and the CLAC to exercise their respective judicial duties to enquire further into the said issues.
22. The Respondents had argued before the CLAC that Fredrick Rarabu claims Kwai. He said the land had its boundaries and 16 tambu sites. They further said that Toloisae land was given to Suilalamoa, a female from Subea Langi tribe who married Arafiuabu. It is submitted that the evidence of the Respondents on Kwai land was inadequate there was no evidence of the types of tambu sites as claimed by the Respondents. Secondly, that the genealogy of the giver being Logomae was not proved by the Respondents. Thirdly that the reason for gifting of the land was not explained and whether it was acceptable in custom and fourthly is that there was no proof of public occasion (e.g. a feast) during which the alleged gifting would be publicly declared and announced.
23. In respect of Tolisae land, the Respondents argument before the CLAC was that Allan Borkama claims Toloisae. He had 15 tambu sites therein. He claimed that his ancestor named Kosiru bought the land from Sulimae with 100 dolphin teeth. It is submitted by Counsel Mr Suri that the Respondents evidence before the CLAC was inadequate because there is no clear evidence on the type of tambu sites and the significance of the said tambu sites. There is also no proof by genealogy and history that Sulimae was from Subea Ano and that the said Sulimae had authority to sell the land. Further that no reasons was given why Sulimae wanted 100 dolphin teeth for sale of the land coupled with the fact that there was no proof of a public occasion like a feast during which the sale would be publicly announced and declared.
24. In the absence of the above custom issues and or evidence being produced to the CLAC by the Respondents, appeal grounds 1 (b) and 1 (c) of the Further Amended Notice of Appeal should be allowed.
25. In relation to appeal ground 2 of the Further Amended Notice of Appeal, it attacks a breach of the provision of section 12 (3) of the Local Courts Act (cap 19). That section provides:
    • s. 12 (3) In addition to producing a certificate pursuant to sub-section (2), the party referring the dispute to the Local Court shall lodge with the Local Court a written statement setting out –
    • a) the extent to which the decision made by the chiefs is not acceptable; and
    • b) the reasons for not accepting the decision.
26. It is submitted by Mr Suri of counsel for the Appellants that the requirement of section 12 (3) of the Local Courts Act is mandatory in nature. It is therefore submitted that because the Respondents did not include in their written statement the ownership issue of Kwai and Toloisae lands, it cannot confer jurisdiction on the said court to enquire into the ownership issue over the said lands.
27. On the above basis, it is argued by Mr Suri of counsel that the CLAC had erred in law in not considering and determining that the jurisdiction of the Local Court can only be invoked by the actual referral to it under s. 12 (3) of the Local Courts Act. The ownership of the two subject lands was not part of the referral made to it by the Respondents and therefore the said Local Court was not entitled to make any alteration to the written statement without the consent of the opposing party.
28. Mr Suri submits that one important function of a written statement is to avoid taking the opposing party by surprise. In this case, the Appellants were taken by surprise because the issue of land ownership was not one of the reasons for the referral to the Local Court. The Local Court is the beginning of the formal enquiry on land disputes in this jurisdiction. Their power is limited to the nature of the referral and the written statement. They are not entitled to venture outside of the written statement under s. 12 (3) of the Local Courts Act. On that basis it is the case for the Appellants that the CLAC had erred in law in not considering and determining that the jurisdiction of the Local can only be invoked upon the grounds set out in the written statement.
29. Appeal ground 3 is a complaint that the CLAC had erred when they did not conduct a site visit to identify the boundary of Tolisae land which is in dispute and evidence of custom, proofing the Respondents’ claim to the land. It is submitted by Mr Suri of counsel that as there was a dispute as to whether Toloisae land was a land name or a tambu site, the CLAC should have invoked their jurisdiction to direct that a site survey be carried out to assist them in their determination as to whether the said land is a piece of land or a tambu site. The Local had referred the boundary issue to the Chiefs but in their discretion they could have conducted a survey of the land.
30. Having made submissions upon their appeal grounds, Mr Suri of counsel submits that the Appellants appeal be allowed and the judgment of the CLAC dated 12 July 2019 be wholly set aside. A further order is sought for the dispute be remitted to a differently constituted CLAC for hearing de novo and an order for cost against the Respondent.

The case for the Respondents

31. Mr Fakarii of counsel for the Respondents filed a response to the Appellants Further Amended Notice of Appeal on 30 November 2020. In their response, the Respondents deny that the Appellants are entitled to any of the orders sought on the basis that the CLAC had not erred in any way whatsoever.
32. In relation to appeal ground 1 (a) (i), it is submitted by Mr Fakarii of counsel for the Respondents that the logging agreements referred to by the Respondents during the hearing in the court below was not considered in isolation. It is the case for the Respondents that the Appellants themselves gave value to the logging agreements when they stated that Kwai and Toloisae were tambu sites and that the tambu sites belonged to the Respondents. It is therefore submitted by counsel that tambu sites is one principal evidence of land ownership and the Appellant had agreed that the tambu sites belonged to the Respondents. That concession would confirm ownership of the lands by the Appellant.
33. In respect of appeal ground 1 (a) (ii) and (iii), the Respondents relies upon the grounds argued in appeal ground 1 (a) (i) above.
34. In relation to appeal ground 1 (b), it is the case for the Respondents that the answers given by the Appellant Mr Rifalea to the court’s question 6 on page 10 of the Local Court transcript and question 8 on page 7 to 10 of the said transcript only confirms the Respondents’ ownership over Kwai and Toloisae lands. In Malaita custom, tambu sites is one of the key elements of proving ownership over a customary land. The Respondents had given evidence that there is 1 principal site and 4 settlements on Kwai land and 7 burial sites and 7 settlements on Toloisae land. It is therefore submitted by Mr Fakarii of counsel for the Respondents that the Malaita Customary Land Appeal Court did not err in its finding for the Respondents.
35. As per appeal ground 1 (c) of the Appellants appeal, it is submitted by Mr Fakarii of counsel that there has been clear admissions by Mr Rifalea before the Local Court that Kwai tambu site and Toloisae tambu sites belonged to the Respondents. There is no denial by Mr Rifalea that the Respondents have customary rights over Kwai and Toloisae. It is further the case for the Respondents that the CLAC had perused the Memorandum and Supplementary Agreements on pages 95 to 97 of the Appeal Book that showed and referred to Toloisae as a land. The documents would be indicative that Toloisae is a land name and therefore ground 1 (c) should be denied.
36. In respect of appeal ground 2, it is the case for the Respondents that even though written referrals are made to the Local Court, the said court has the power to substitute the chiefs decision with a justifiable decision. They rely on the case of Bavare v Nepara CAC No. 21 of 2011, whereby the Court of Appeal stated inter alia that under s. 13 of the Local Courts Act (cap 19), the local court clearly has the ability to hear the matter de novo if required. In the case between the Appellants and the Respondents, the Malaita Local Court had opted to deal with the matter between the parties the way they did. They are empowered under s.13 (d) of the Local Courts Act to do what they did. It is therefore submitted that appeal ground 2 should also be denied.
37. As far as appeal ground 3 is concerned, it is submitted by Mr Fakarii of counsel that the issue of boundary had already been referred by the Local Court to a neutral House of Chiefs for determination. Instead of taking up that option, the Appellant had appealed to the CLAC and then to this court. That opportunity was made available to them at the Local Court stage but they refused to take it out. The CLAC had awarded ownership of Kwai and Toloisae land to the Respondents upon the admission of Mr Rifalea and supported by the Agreement and Memorandum of Understanding discussed above. This ground of appeal must also be denied.

Discussion

38. This is an appeal by the Appellants from the decision of the Malaita Customary Land Appeal Court dated 12 July 2019. The Appellants had raised 3 grounds of appeal. The general argument on appeal ground 1 is the conduct of the case before the Local Court as well as the CLAC.
39. The dispute between the Appellants and the Respondents over Toloisae and Kwai can be said to have started in about 2013 as a result of logging operations in the area. In 2017, the dispute was referred to the Subea House of Chiefs by the Appellants party. A one-sided decision was made by the House of Chiefs in favour of the Appellants party on 18 August 2017. Being aggrieved by that decision, the Respondents party referred the dispute to the Malaita Local Court under s. 12 of the Local Courts Act (cap 19). In its ruling on preliminary hearing dated 23 November 2018, the said Local Court made the following orders namely:
    1. Quash the decision of Subea House of Chiefs of 18 August 2018;
    2. Dismiss the case;
    3. Parties at liberty to refer question of boundaries to an agreed (neutral) panel of chiefs;
    4. Parties to bear own costs.
40. I have noted that the orders of the court do not include the ownership of the lands in issue. There was also no discussion by the Local Court on their assessment of the evidence before it. In any event, as per their orders, they have not formally awarded ownership to the Respondents.
41. Further to the said orders discussed in paragraph 39 above, the orders are confusing. After having quashed the decision of the Subea House of Chiefs, they have dismissed the case. It is unclear on the record which case is dismissed. Did the Local Court dismiss the referral? That issue is unclear.
42. The effect of a quashing order is to nullify and or to invalidate the decision of an inferior court so when the Local Court quashed the decision of the Subea House of Chiefs, why the need to dismiss it too. One thing which is certain is that the said Local Court had failed to determine in their ruling whether or not Kwai and Toloisae were land names or tambu sites.
43. The above confusion had led to more confusion when the case came before the Customary Land Appeal Court on appeal. In light of the above error, the CLAC in their discretion could have referred the dispute back to the Local Court to rehear and determine the issues according to law. They could also determine the issue of ownership between the parties. Instead, they dismissed all of the respondents appeal grounds and stated in their last page that they were unable to award ownership to any party because it was already done by the Local Court. Having perused the Local Court decision in this case, I can see nowhere in that decision that the Local Court had awarded ownership of the disputed lands to the Respondents or the Appellants. That was one of the appeal grounds by the Appellants to the CLAC. Instead of dealing with that appeal point according to law, the CLAC had instead dismissed it.
44. In any event, on the issues raised in the further amended notice of appeal of the Appellants, I am able to say that logging documents are not proof of ownership of a customary land. The evidence that must be adduced by respective parties to a dispute before the Chiefs forum or the Local Court must be issues of ownership according to custom. Logging issues are ordinary dealt with under the Forest Resources and Timber Utilisation Act (cap 40). Ownership of customary land is dealt with under the Local Courts Act (cap 19) and the Land and Titles Act (cap 133). The CLAC had therefore erred in law when they used the logging documents as proof of ownership of the disputed land.
45. In relation to appeal grounds 1 (b) and 1 (c), the admission by the Appellant. Rifalea was an admission of tambu sites, not an admission of ownership of the disputed lands. It is very possible in custom for a tribe to own tambu sites within another tribes land. It is evident from Mr Rifalea’s answers to the court’s enquiry that the Respondents own the tambu sites named as Toloisae and Kwai which were located inside his tribal lands being Subea Langi and Subea Ano. The location of the disputed land within the named tribal lands is not disputed by either parties. I am satisfied on the balance of probabilities that the CLAC had erred in law when it assessed and construed erroneously Mr Rifalea’s response to the enquiries of the Local Court. Appeal grounds 1 (a), 1 (b) and 1 (c) are allowed. I cite with approval the comments of Chief Justice Daly referred to in paragraphs 16 to 18 of this ruling.
46. In respect of appeal ground 2, and bearing in mind my discussions in paragraphs 39 to 43 above, it is further my view that the CLAC had erred when it held that the ownership of the disputed lands have been dealt with by the Local Court. Ownership of the disputed lands was not settled by the Local Court and it was also not settled by the CLAC. The appeal grounds by the Appellants were merely dismissed by the CLAC.
47. The CLAC is empowered under section 256 (2) of the Land and Titles Act to substitute any decision appealed against and may make such order that it seem just. Deriving their powers under that provision, the CLAC could have made a definite decision on ownership of the disputed lands rather than just referring to the prior Local Court decision that had failed to award ownership of the disputed lands to any party. It is important to note that a decision made by a court must be pronounced as such. It must not and cannot be implied as such. In this case, the Local as well as the CLAC had failed to pronounce in their respective decisions, the owners of Kwai and Toloisae lands. They have also failed to specify if the lands were land names or mere tambu sites.
48. In summarising the submissions of both the Appellants and the Respondents, it is obvious that the CLAC had erred in their decision when they failed to decide the Appellants appeal according to law. It is clear from the decision of the Local Court that a definite and clear decision was not made on ownership of the disputed lands. By virtue of s. 256 (2) of the LTA, they could have made a clear and definite decision as to which party had ownership rights according to custom over the disputed lands. They failed to do that and in that regard they have erred accordingly. Appeal ground 2 is allowed.
49. In relation to appeal ground 3, the discretion to carry out site visits rests on the Local Court as well as the CLAC. In light of submissions made by both the Appellants and the Respondents, I am of the view that there is no evidence that the CLAC had erred in not carrying out a site visit. Appeal ground 3 is dismissed.
50. In allowing appeal grounds 1 and 2, I direct that the issue of ownership of Kwai and Toloisae land is referred to a differently constituted CLAC. The decision of the CLAC dated 12 July 2019 is set aside in its entirety. No orders as to cost.

THE COURT
Justice Maelyn Bird
Puisne Judge