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Ogali v Maemarina [2023] SBHC 26; HCSI-CC 41 of 2019 (2 June 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 41 of 2019

BETWEEN

LINUS LINO OGALI AND JOHN SIA’ALIMAE
Appellant

AND:

AUGUSTINE MAEMARINA AND SIOSI DIOKO
Respondent

Date of Hearing: 28 October 2022
Date of Judgment: 2 June 2023

Mr. Linus Lino Ogali in person representing the Appellant
Mr. N. Laurere for the Respondent

JUDGMENT ON APPEAL FROM MALAITA CUSTOMARY LAND APPEAL COURT

Faukona, DCJ: This is an appeal from the Malaita Customary Land Appeal Court (MCLAC) decision made on 30^th October 2018. Against that decision a notice of appeal was filed on 30^th January 2019 in the High Court.

2. The appeal was brought about pursuant to section 256 (3) of the Land and Titles Act. The grounds of any such appeal, by virtue of the section, shall be in the nature of the decision or order of CLAC, as erroneous in point of law (not including customary law) or on the ground of failure to comply with any procedural requirements of any written law.
3. There were five grounds filed by the Appellants in the notice of appeal. The grounds can be paraphrase as follows:
4. That the Malaita CLAC had failed to conduct a fair and impartial hearing thereby causing a miscarriage of justice in the following respect:
   • (1) That on being informed that the Bina Harbour acquisition determination has been nullified they failed to require the parties to provide to the Court a copy of the decision nullifying the said determination.
   • (2) That the failure refer to in (1) above had led Malaita CLAC, in its decision, to use materials that are immaterial, irrelevant and considered nullified or declared null and void by the decision nullifying the said determination. That the decision of the panel of chiefs appointed by the Acquisition Officer are also nullified as a result of the decision of the Magistrates Court in acquisition appeal No. 5 of 1995.
   • (3) That the use of Civil Case NO. 3/71 dated 10^th November 1971 between Maomaisau as Plaintiff and Sisili as Defendant, as relevant to determine ownership of Matalibore is wrong as Civil Case No. 3/71 was a case concerning Bina Land and that Abraham Osifera was not a spokesman for Dona Anifaeoli but appeared in that case as a witness for Sisili the Defendant.
   • (4) That the Malaita CLAC had before it parties who are from the rural area and have no one or very little knowledge about procedures and what is required the parties especially the Appellants to file any sworn statement to proof his allegation of biasness on the part of the justices of the Malaita Local Court.
   • (5) That the Malaita CLAC took into account untrue evidence in its deliberation, for instance that the grave yard of Abakwao is on Matalibore.
5. The approach I would prefer to apply in this appeal, is to deal with each appeal ground separately and determination on each ground there and then.

Ground 1 and 2.

6. The argument by the parties in the CLAC was concerning Bina harbor acquisition determination. Basically that confined to determination which was nullified by the Magistrates Court.
7. The question to proof is, was the nullification a beacon to be considered in this appeal? Did the nullification cause high effectual irregularity upon or part of the CLAC decision?
8. In my opinion, for all general applications, a decision of an acquisition officer in an acquisition proceeding, has no effect upon the decision of the Chiefs and local Court. Production of such document is of no interest and un-necessary.
9. Those were two different processes. One commerce with Part V of the land and Titles Act, which S. 60 states customary land may be sold or lease to the Commissioner or any Provincial Assembly. It is then the Commissioner have to appoint an Acquisition Officer to act as his agent, see S.61.
10. Overally the Acquisition Officer does not have jurisdiction to determine ownership of customary land. The power of the acquisition officer is limited to identifying the persons who have the right to sell the land and receive the purchase money or lease. Anyone who disagrees with the acquisition officer’s determination can appeal to the Magistrates Courts.
11. The other process concerns with the issue of right of ownership to customary land. It starts with S.12 (1) of the Local Courts Act which states, the parties to the land dispute must first refer the dispute to the Chiefs. S.12 (2) of the Act makes provision that whom so ever disagree with the Chiefs decision may refer the dispute to the Local Court.
12. A party which disagrees with the decision of the Local Court may appeal to the appropriate Customary Land Appeal Court.
13. The two processes under two regimes of law cannot mingle with each other nor integrated in any way. They can’t be substituted for one another or subsidized, though both will meet eventually in the High Court.
14. The argument that when Magistrates court nullifies an acquisition Officers determination, also nullify any chiefs or Local court decision the acquisition officer relies on, is a myth, illusive and a total misconception of the law.
15. The ownership issue of customary land normally goes to the chief and then to the Local Court by referral and then to the CLAC on appeal. The Local Court has jurisdiction to quash or nullify the decision of the Chiefs, and the CLAC has jurisdiction to set aside, quash and or nullify the decision by the local Court.
16. To say that the CLAC was erroneous in law because it referred to determinations by the Chiefs on Bina Harbour Assessment, Civil Case No. 3/71 and 1993 settlement case is absurd. Notwithstanding the fact that the Magistrates Court had nullified the acquisition officers determination, who referred those previous decisions by land tribunals, does not mean those previous decisions were nullified, only the decision of the acquisition officer was nullified and not the case references. In fact the Magistrate Court has no jurisdiction to quash or nullify any decision concerning land ownership, only land tribunals and courts specifically appointed to deal with them have jurisdiction.
17. If decisions of previous cases, though not concerning Matelibora Island the subject of this appeal, but some evidence had touched on the subject land, then of course the CLAC was entitled to refer to it.
18. In respect of the two grounds and the reasons alluded to above I must therefore dismiss them for the reason they carry no merit at all.

Grounds 3.

19. On this ground the Appellants points out the inconsistency of the record of Civil Case no. 3/71, where at one stage Abraham Osifera was a spokesmen for Dona whilst in the same proceeding Osifera was described as witness for Sisili the Defendant, concerning Bina land.
20. It is important to note that no one should be a spokesman for someone who is not a party in civil litigation. Only a party has guaranteed a spokesman to speak on his behalf in Court.
21. The Appellants contest that the CLAC by relying on the evidence in 1993 settlement case, was wrong, because that decision had already being nullified by the Magistrates Courts in acquisitions Appeal case No. 5 of 1995.
22. There is nothing wrong in reliance on decisions of previous chiefs or Local Court decision. A particular evidence may relate to another subject land, but if some evidence touches on the land now under dispute, then the CLAC is entitled to make reference to.
23. Importantly, parties to the current case may also parties or witness in the previous different land matter.
24. The Counsel for the Respondent outline the inconsistencies of evidence adduced to Court in 1972 and 2011, by the father and the son. If they are inconsistent in their evidence adduced to Court in 1972 and 2011 that party is not telling the truth.
25. The decision of the Magistrates Court on appeal from Acquisition determination cannot nullify previous Chiefs or Local Court decision. It lacks jurisdiction to do so. This ground is a repetition of grounds 1 and 2 which I have dealt with above. I must therefore dismiss this ground.

Ground 4.

26. This ground concerns allegation of criminal conduct against the chiefs; which particular Chief was not well identified. In any event, it could appear that should tantamount to criminal proceedings. The Appellant is entitle to proof any criminal activities or conduct entertained by any Chief. Any issue against the Chiefs should be raised in the local court and not in the High Court.
27. The question whether the result of the criminal proceedings will have an effect on the CLAC decision; in my view it does not.
28. In fact the Appellants were not deprived of any opportunity to put their case and be dealt with by an impartial Local Court. This ground has no merit and is dismissed accordingly.

Ground 5.

29. This ground focusses on the evidence that Abakwao whom the Respondents claim as their discoverer was buried on the island. The Appellants submit that was contrary to the evidence of Walesua who was one of the witnesses for the Respondent Local Court.
30. However, on page 86 of the Appeal Book which contain the Respondents submissions in the CLAC that Abakwao died at Matalibore Island and was buried there. His skull was removed by Fr. Donation and dumped it at Kiluligwau stream.
31. I noted Mr. Walesua had advanced a contrary claim against the Respondents in his evidence in the Local Court. To hold such view whilst witnessing for others does not warrant any credit. If he wish he could start a new case.
32. In all dispute or civil litigation, not all evidence adduce in Court is credible. There are others which may not be favorable. However, the Court has to maintain the test in a civil course of action which is on the balance of probability. The Court will only accept and consider evidence which on the balance of probability will make a decision fair and just.
33. There may be minor discrepancies which are not sufficient enough to turn on, or sway the entire course of a good judgment. This ground render no merit at all, therefore must be dismissed.

Conclusion.

34. I find none of grounds filed contain errors in point of law committed by the CLAC. Or that the CLAC had failed to comply with any procedural requirements of any written law.
35. The only argument that may touch on error as to point of law or procedural requirement is in respect of jurisdictional issue. That, in my respectful view was misconceived by the Counsel for the Appellant. The rest are minor scope of evidentiary assessment which the CLAC had done by accepting the best evidence as it would assess.
36. With the reasons outline above it is ideal and with good cause the entire appeal should be dismissed with costs.

Order:

1. The appeal is entirely dismissed.
2. The cost of this appeal is to be paid by the Appellants to the Respondents on standard basis if not agreed upon.

THE COURT.
Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.