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Taika v Tekiou - re Taneka Land [1999] SBCLAC 2; Case Number 08 of 1993 (7 October 1999)

IN THE CENTRAL ISLANDS
CUSTOMARY LAND APPEAL COURT

ABOUT: TANEKA LAND

Case No. 8/93

BETWEEN:

JEFFRY TAIKA
Appellant

AND:

JOHN LEE TEKIOU
Respondent

DATE: 7th OCTOBER 1999.

JUDGMENT

This is an appeal lodged by the appellant Jeffery Taika against the decision of the Bellona Local Court which awarded the ownership of Taneka land to Johnley Tekiou, the respondent.

The appellant raised thirteen points which will be dealt with in the following order.The allegation raised in point one has no merit at all. There is no evidence to substantiate this claim. Allegation against clerks, are serious, thus it is important to prove such allegation as clerks are vested with responsibility which should be discharged with integrity. There is insufficient evidence to support this allegation, accordingly it must be dismissed.

The court decided to deal with points two and eight together as these points raised similar issues in our view. The issue raised was centered on Takiika, whom the respondent based his claim. The appellant submitted that Kaukau (sacrifice to reduce power) was done first before Takiika moved in Taneka land. This is to make clearance for the making of gardens or settlement, hence, the significance of this sacrifice. However, the respondent submitted that he belongs to the mataubea tribe and descended from Takiika. He claimed ownership of Taneka because of Takiika who was there on the land before Tesui was killed.

We consider the local court record on these points. The court noted from the record as claimed by the appellant which was not disputed that Saoangiki offered kaukau first. But this is contrary to the logical argument put forward by the respondent that if Saoangiki offered Kaukau first, why then Tekehu was cursed and Teikangongo got continuos boil on his body. The kaukau is to free the land from its holiness, thus Tekehu should not be cursed neither Teikangongo got boil on his body. Based on the customary facts which the local court considered in its finding, we therefore, see no error on these points where the local court rightly considered after assessing the evidence given before them. These points are therefore, dismissed.

In respect of point 3, the appellant raised allegation of change of time, venue and two different clerks, which attended this case. It is noted from the court record at page 16, the appellant on 12th November 1992, made an application for adjournment as his uncle was very ill and that his witness was in Honiara. Because he did not prepare his witness, he should not turn around and complain that the period or length of time was too long before his case was heard. It is expect to take long considering the fact that not only Rennell and Bellona are served by clerks at Central Magistrate Court, but other provinces too are served by the Local Court Clerks.

With change of venues, this is entirely the discretion of the local court to select the venues for its sittings. Unless there is substantial evidence to show the change of venue had caused a serious breach, we are not prepared to allow this sort of unfounded allegation. The fact that two different clerks took part in the same proceeding did not cause a serious breach. The function of a clerk is to record the evidence adduced in court. Clerks are not necessarily involve in the decision making. This important function is vested on the court members which make the decision. If court members change on each occasion then we can consider this. There is no evidence before this court on any irregularity that affect the decision making by having two different clerks. Accordingly this point has no merit and should also be dismissed.

Point 4 was based on the fact that the court hearing was held a day after the general election, hence the decision as alleged by the appellant was politically influenced. Again this is a serious allegation leveled at the court. Such allegation should not be treated lightly as it may dimished the integrity of the court. Allegation of such nature must be substantiated to the satisfaction of the court so that the court is sure the local court decision was politically influenced. Lack of evidence to such allegation is fatal to that allegation, and therefore it must be dismissed.

On point 5 the appellant alleged the respondent was merely reading his statement in court. As far as submissions in court are concern, parties can refer to any material and read it, which he believes will support his case. Whether it was written or orally submitted, it is the court to decide which evidence to accept. In this case, the local court accepted and considered the respondents submission after the court assessed the evidence before them. We therefore, see no error committed by the local court on this point. Accordingly this point follows the fate of the above points and must also be dismissed.

Point 6, the appellant complained of the translation of their dialect into English and then the clerk to re-read the statement for correction, which was done when the respondent adduced its evidence. However, it was not done to him (appellant).

Having perused the local court record we note that on 2nd June 1993 the defendant (now appellant presented his case and no record to show any application for an interpreter so that the process complained of undertaken by the plaintiff (respondent) be also applied to him. He slept on his right to seek same process to his case in court. He should not come to this court and complain. Such complain must be substantiated with reason why no application was made before the court could consider it. The lack of materials to substantiate it will lead to the fate of this point, thus it must be dismissed.

The appeal ground 7 alleged that there was a violation of court procedures for the president Baiabe Teiou and Henry Kabei to live together until the court hearing was over. Indeed we do not understand what court procedure was violated. Normally court party stayed together for the duration of the hearing. In this case, there is no evidence at all to suggest the members staying together had violated any of the court procedures. Lack of evidence would also lead to this point being dismissed.

The appeal ground 9 raised the fact by the appellant that he won this land on two occasions. First in the local court in 1979 and then in the CLAC in 1982. There is no evidence before this court of the decision given in the local court or the CLAC in favour of the Appellant in 1979 and 1982 respectively. Only a Notice of Hearing in the CLAC in 1982 was produced and marked Ex JK2. From this evidence, as a respondent in the notice, one could say that he won the land in the local court.

As it was rightly submitted by the respondent in this case, that he was not a party nor a privy to any of the parties, to those disputes, although involving the same land He is a new party to the dispute, thus nothing to impede him to pursue his interest in the said dispute. The maxim of res judicata does not apply to the respondent in this case, so on this point we saw no error by the local court to award the land to the respondent, after considering the evidence before the local court. On that basis, this point is also dismissed.

Points 10,11,12 & 13 would be dealt with together as they raised same issues regarding the decision given by the local court in civil case 33/99. As submitted by the respondent that decision was based on the evidence produced by the appellant Jeffrey Taika and Teghapilu. However, in the present case new evidence were produced. The local court considered them according to custom. The local court was satisfied the evidence favoured the respondent and awarded Taneka land to him. The local court rightly ignore the evidence of Teikangougo as those evidence were not produced before them. On those basis, these points have no merit and should also be dismissed. Considering all the points submitted and the local court records, there is no error committed by the local court.

Accordingly the appeal is dismissed. Parties to bear -own costs.

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