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Ramolangi v Buai [2023] SBHC 127; HCSI-CC 62 of 2019 (16 November 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 62 of 2019

BETWEEN

WALE RAMOLANGI
Appellant

AND:

ROBERT BUAI
Respondent

Date of Hearing: 16 August 2023
Date of Decision: 16 November 2023

Mr Eddie Toifai for the Appellant
Mr Lionel Puhimana for the Respondent

RULING ON APPELLANT

Bird; PJ

1. This proceeding had stemmed out of an appeal against the decision of the Malaita Customary Land Appeal Court (MCLAC) dated 7 November 2018 whereby the said court overturned the prior decision of the Malaita Local Court in favour of the Appellant and awarded ownership of Rualiu land to the Respondent. The grounds of appeal contained in the Notice of Appeal filed on 7 February 2019 are the following:
   1. The MCLAC erred in law for refusing to provide a copy of the minutes of the CLAC proceeding to the Appellant to file his notice of appeal;
   2. The MLAC erred in law not to accept that Takibaita/Kwaimela land whose boundary was determined in land case no. 29 of 1974;
   3. The MCLAC erred in law to accept the tambu site of Kwalasa while in fact the tambu site has not been surveyed by the Local Court;
   4. The MCLAC erred in law to accept that there was no prove or signs to affirm the Appellant’s tambu site at Takibalia/Kwaimela while in fact the tambu site was proven in custom that it was a true tambu site;
   5. The MCLAC erred in law to accept boundary of Rualiu land which cover other lands including Eke, Oreore, Feratala, Hia and Gwaelo which were outside Rualiu land and not in dispute. The dispute concerns only with lands within and surrounding Rualia and Kwaimela customary lands.
2. In lieu of the grounds of appeal as particulars above, the Appellant seek that the appeal be allowed and the decision of the MCLAC be set aside. Subsequently, the case should be remitted for re-hearing before a differently constituted MCLAC.

Background facts of the case

3. This land dispute case was commenced before the Radekwai House of Chiefs on an unspecified date. The Respondent referred the dispute to the Malaita Local Court in Land Case No. 5/200. On 28 September 2006, the said Local Court awarded primary ownership of Rualiu/Kwaimela land to the Appellant and secondary right to the Respondent. Being aggrieved by that decision, the Respondent lodged an appeal to the Malaita Customary Land Appeal Court. The said court convened on 5 November 2018 and made a decision on 7 November 2018, allowing the appeal, setting aside the decision of the Local Court of 28 September 2006 and awarded ownership of the said land to the Respondent. It is that decision that is being appealed against by the Appellant.
4. It is also important to note at this juncture that in the agreed facts filed by the parties to this appeal on 2 May 2023, it stated on paragraph 8 the following viz: The boundary of Rualiu land owned by the Respondent as described at paragraph 8 of the MCLAC judgment is not the boundary in dispute. Paragraph 9 went on to say – The boundary in dispute is that which is described by the Appellant at page 9 of the Local Court judgment.

The case for the Appellant

5. There are five appeal grounds that are advanced by the Appellant in this appeal. In his written submission filed on 14 August 2023, Mr Toifai of counsel only referred to 4 grounds/issues. The 4 issues are consistent with appeal grounds 2, 3, 4 and 5 of the Notice of Appeal filed on 7 February 2019. Upon that basis, it could be taken by this court that the Appellant do not intend to pursue appeal ground 1 of his Notice of Appeal. In any event, that ground of appeal is not a valid ground of appeal in this proceeding. That position was discussed and adopted by the court in the case of Palmer v Vunagi [2018] SBHC 40; HCSI-CC 349 of 2013 at paragraphs 9-11 of the judgment.
6. In respect of appeal ground 2, it is argued by Mr Toifai of counsel that the MCLAC erred when they failed to take into account the decision of the court in Land Case No. 29 of 1974. In that case, it was confirmed by the said court that the tambu site mentioned by the Appellant in the court below was confirmed to be a tambu site in that prior case. Notwithstanding, that document was disregarded by the MCLAC.
7. In as far as appeal ground 3 is concerned, it is the case for the Appellant that the MCLAC had erred when they said in their decision that Kwalasa was a tambu site when in fact it was not proved during site visit as being within the Kwaimela land boundary. It is submitted that the MCLAC should have conducted a site visit to verify if in fact Kwalasa was a tambu site located within the disputed land. Mr Toifai referred to the case of Lone v Placid Sade- HCC No. 49 of 2011 in support of his argument. In that case, this court had stressed the importance of a site visit in order to assist them on their assessment of the veracity of the evidence given in court and verified by way of a site visit.
8. In relation to appeal ground 4, the arguments raised by counsel are similar to appeal ground 2 above. It is reiterated that the MCLAC should have given due weight to the evidence adduced in Land Case No. 29 of 1974. At the material time, the tambu site at Takibaita/Kwaimela was proved to have been a real tambu site. It is submitted that the evidence, if considered by the MCLAC, would not have resulted in an adverse decision made against the Appellant.
9. In relation to appeal 5, it is submitted by counsel that the MCLAC had erred in law to accept the boundary of Rualiu land which also covered other lands including Kwaimela, Eke, Oreore, Feratala, Hia and Qwaelo. It is argued that these land parcels should have been outside of the boundary of Rualiu land. The MCLAC should have delineated the boundary of the disputed land in accordance with the evidence from the Respondent and the Appellant, but they have went further to extend the boundary that had caused to cover other lands belonging to other tribes. The MCLAC had further erred when they accepted the boundary claimed by the Respondent without a sketch map describing the exact boundary that they have claimed in the Local Court. The two description of boundary of the disputed land before the Local Court by the Appellant and the Respondent were very different and without a further site visit to verify the respective boundaries, they accepted the boundary as was presented by the Respondent without further enquiry. It is therefore submitted on behalf of the Appellant that his appeal be allowed.

The case for the Respondent

10. On behalf of the Respondent, it is submitted by Mr Puhimana of counsel that all of the grounds of appeal by the Appellant do not disclose any valid grounds of appeal per se and the said appeal should be dismissed with cost. In as far as appeal ground 1 is concerned, it is submitted by Mr Puhimana that there is no mandatory requirement of law that the CLAC is obliged to provide copy of the minutes of the CLAC proceeding to the Appellant to assist in the lodgement of his appeal. Mr Puhimana relies in the case of Palmer v Vunagi [2018] SBHC 40, HCSI-CC 349 of 2013 in which this court stated inter alia that the CLAC can regulate its own procedures. It is nonetheless noted that Mr Toifai for the Appellant did not pursue this ground of appeal in his written submissions filed on 14 August 2023.
11. In relation to appeal ground 2 on the notice of appeal, it is submitted by Mr Puhimana of counsel that the decision of the court in Land Case No. 29 of 1974 is not binding on the Respondent because he was not a party to that case. Only the Appellant was one of the party in that case and it is submitted that the said decision should not be brought into this proceeding. In any case, the MCLAC had properly analysed the reasons as the basis of their decision in paragraphs 6 to 17 of their judgement.
12. It is further submitted by counsel that the issue on boundary demarcation is an issue for the land courts being the Chiefs, the Local Court and the CLAC to determine. On that basis it is the case for the Respondent that appeal ground 2 is not an issue of law but an issue of custom. This court lacks the jurisdiction to entertain that ground of appeal and it should be dismissed.
13. In as far as appeal ground 3 is concerned, it is submitted by Mr Puhimana of counsel that this appeal ground must also fail because there is no written law that the Local Court or the CLAC are obligated to conduct a survey of the land in dispute. It is merely a discretionary power of the said courts to conduct a site visit. Mr Puhimana based his argument in the case of Lilo v Panda [1980-1981] SILR 155 in which this court stated inter alia that there is no written law requiring the CLAC to visit disputed land, the subject of the appeal before it. If the evidence of boundary before a Local Court and a CLAC is enough, they need not conduct a survey or a site visit.
14. In their discussion, the MCLAC stated that during the survey or site visit by the Local Court, the evidence of the Respondent on their tambu sites and boundaries was not discredited by the Appellant. On the contrary, the Appellant’s principle tambu site was discredited during the same site visit. The Local Court was not satisfied that the named principle tambu site of the Appellant was in fact a tambu site as alleged. The Appellant’s case upon a site visit by the Local Court was classified as weak by the MCLAC because they only have one single tambu site within the disputed land. On the other hand, the Respondent had 7 seven tambu sites within the disputed land area. See paragraph 16 of the judgment of the MCLAC. So in applying the principles cited in the above cases, it is submitted on behalf of the Respondent that the evidence adduced by the parties before the Local was sufficient and the MCLAC need not conduct another survey or site visit of the disputed land.
15. In relation to appeal ground 4, it is submitted by Mr Puhimana that the appeal ground amounts to a question of fact rather than of law and should be dismissed on the outset. It is submitted that the issue of the existence or otherwise of a tambu site is an issue of custom and this court lacks jurisdiction to entertain it.
16. Mr Puhimana also relies upon the case of Buga v Ganifiri [1982] SILR 119 in which the court was of the view that this court lacks jurisdiction to interfere with findings of the CLAC in respect of findings of fact or in custom. It is submitted that the issue of the existence of or non-existence of tambu sites is an issue of custom. This ground of appeal should therefore be dismissed because it is not an issue of law.
17. In relation to appeal ground 5 of the notice of appeal, it is submitted by Mr Puhimana of counsel that this ground of appeal is also an issue of custom because it hinges on boundary of the disputed land and other mentioned lands under that ground of appeal. It is submitted that there was enough evidence before the lower court for them to make a determination on ownership of the disputed land. It is further submitted that the said court had properly discussed and analysed the evidence as was adduced by the respective parties before the Local in their judgment of 7 November 2018. See paragraphs 6 to 18 of their written judgment on pages 97 to 101 of the Appeal Book. On the totality therefore, it is submitted by counsel that all of the five grounds of appeal of the Appellant should be dismissed with cost.

Discussion

18. In this appeal, the Appellant had advanced five grounds of appeal. The general complaint of the Appellant against the judgment of the MCLAC dated 7 November 2018 is on the issue of boundary and tambu sites on Rualiu land. In respect of Appeal ground 1, it would seem obvious from the submission of counsel, that the Appellant had opted not to pursue that ground of appeal. In any event, if I am wrong in my observation, and through the authority of the Palmer case cited in paragraph 5 above, that ground of appeal does not hold water and is hereby dismissed.
19. Appeal grounds 2, 3, 4 and 5 in my view are appeal grounds that could be dealt with together because they all relate to the boundary of the disputed land as well as the tambu sites of the disputing parties. I have perused and noted the observation and discussion of the MCLAC in their judgment under appeal in this case. Their analyses of the evidence adduced by the parties to this appeal before the Local Court as well as their analyses of the issue on the respective parties tambu sites are noted with approval by this court. It is further noted on the outset that in the agreed facts the boundary of Rualiu land owned by the Respondent as described at paragraph 8 of the MCLAC judgment is not the boundary in dispute.
20. This court is also minded to note the content of paragraph 19 and 20 of the judgment whereby the MCLAC enquired from the Appellant as to what tribal land he had laid claim over before the Local Court. The answer by the Appellant to that enquiry was that his claim of ownership was over Alasa/Gwaiberobero land.
21. I have also had the opportunity to peruse the respective boundary demarcation of the alleged disputed land by the parties to this appeal. It is interesting to note that quite apart from the mention of common boundary names as Suufou Nakinaki and the Rualie River, all of the boundary demarcation of the respective parties in paragraphs 8 and 9 of the judgment are very distinct from each other. That in my considered view would mean that two different land names were described by the respective parties before the Local Court.
22. My above view could also be supported through the answer by the current Appellant when asked by the MCLAC about what tribal land did he claim before the Local Court. The Appellant’s answer to the enquiry was that he had laid claim over Alasa/Gwaiberobero land. The Respondent on the other hand had laid claims over Rualiu land.
23. The land in dispute before the MCLAC was Rualiu land and not Alasa/Gwaiberobero land. The said MCLAC had awarded ownership of Rualiu land to the Respondent and its boundary demarcation were those contained in paragraph 8 of their judgment dated 8 November 2018. If the Appellant was disputing the ownership of Rualiu land, why didn’t he said so before the Local Court or the MCLAC. I have also noted that there is no explanation by the respective parties but more especially so by the Appellant that Rualiu land is also known in custom as Alasa/Gwaiberobero land.
24. Having discussed the evidence as were presented by the respective parties to this appeal before the Local Court as well as the MCLAC, there is also the issue of whether or not this court has jurisdiction to deal with appeal points 2, 3, 4 and 5 of the Appellant’s notice of appeal. It is the case for the Respondents that these appeal points raised issues of facts and custom and by virtue of section 256 (3) of the Land and Titles Act (cap 133), this court lacks jurisdiction to entertain such appeal grounds. I set out that section:
    • 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 is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.
25. It is evident from the above provision that only issues and errors of law can be entertained by this court upon an appeal pursuant to s. 256 (3) of the Land and Titles Act. This current appeal is filed under the very same provision. In paragraph 19 above, I have already made it clear that appeal grounds 2, 3, 4 and 5 of the Appellant’s notice of appeal hinge on issues of facts and custom. Further to that view is the fact that neither the Local Court nor the Customary Land Appeal Court had written and codified procedures to conduct any hearing before them.
26. Section 256 (3) not only state that appeal grounds must be upon errors of law but it also provides that appeal grounds may also be based on failure to comply with any procedural requirement of any written law. I must say that since the enactment of the above provision, there has not been any written or codified procedures under which the Local Court and the Customary Land Appeal Court could conduct hearings and or proceedings.
27. After having discussed the issues raised in this appeal, I can conclude that appeal grounds 2, 3, 4 and 5 are issues of facts and custom and this court lacks jurisdiction to deal with those appeal grounds pursuant to s. 256 (3) of the Land and Titles Act and are hereby dismissed. Appeal ground 1 is not pushed by the Appellant and is also dismissed. In any event, the MCLAC is not obliged by law to provide transcripts to parties before the lodgement of their appeal to this court under s. 256 (3) of the Act. I order that all of the grounds of appeal contained in the Appellant’s notice of appeal filed on 7 February 2029 are hereby dismissed with cost.

THE COURT
Justice Maelyn Bird
Puisne Judge