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Tharogia v Mandetea [1998] SBCLAC 1; CLAC Case Number 09 of 1998 (25 July 1998)

IN THE GUADALCANAL CUSTOMARY
LAND APPEAL COURT

CLAC Case Number: 9 of 1998

Customary land ownership Appellant Jurisdiction

IN THE MATTER OF: THE LOCAL COURT ACT [CAP 144]

AND

THE LANDS AND TITLE ACT (CAP 93)

IN THE MATTER OF: BETINIVAVARI CUSTOMARY LAND APPEAL

BETWEEN:

ALFRED THAROGIA
Appellant

AND:

WILIAM MANDETEA
Respondents

JUDGMENT
Introduction

1. This is an appeal filed against the decision of the Guadalcanal Local Court over the Betinivavari customary land hearing held on 25th day of July 1998.
2. The judgment was made in favour of the Respondent William MANDETEA as the primary and rightful owner of Betinivavari customary land.
3. The Appellant, Mr Alfred THAROGIA was aggrieved of this decision, filed an appeal to the GCLAC of the following Grounds.
   1. The Guadalcanal Local Court is erred in law to proceed and determined the local court proceeding, while ignoring our objection to local court justices.
   2. The local court failed to observe the ruling of the Magistrate court to deal with paragraph 3(a)(c) and (d), ground 4, 5(a) and 9 of his decision.
   3. Local Court failed to see that Betinivavari is not a land, however, it is known as a natural drainage.
   4. The Local Court is biased by saying that the disputed land is outside of our boundary as in the judgment. The Guadalcanal Local Court erred to name all the settlement site, tabu site, boundary, in which there was no actual and proper side visit.
   5. The GLC is erred to accept the evidence of the Respondent regarding family tree which is clearly not of his traditional tribe or clan.
   6. The GLC failed to identify the traditional boundaries of Loka and Silimairi tribal land.
   7. The GLC president and justices is wrong in law to accept offers from the Respondent parties, by providing food, transport before and after the judgment was delivered.
4. The GCLAC has gone through evidence assessment from presentation of both the Appellant and the Respondent and considered the following. First, the court will deal with the grounds of appeal in a manner according to information presented to the court by the Spokes person of the Appellant. The same process with the Respondent's presentation.
5. Secondly, the court will be determined on appeal grounds basically on issues.

Brief history of this appeal

6. This is a case which been proceed through an Acquisition hearing at the magistrate court since after the Respondent intending to lease the land to CDC for palm oil development. It was then challenged by the Appellant and the Magistrate court order to remit the matter through the normal land judicial process. Thus, this judicial process has been through to the tribal chiefs, and through to the Local Court. The aggrieved party then appeal to this court for determination according to the grounds of appeal submitted by the Appellant.

Ground 1

7. The appellant had contested that during the process of the Guadalcanal Local Court sitting on May 1998, his party had objected to one of the Local Justices by the name of Joel SIKUA, in which the court had accepted. However, in the process of site visit, Justice Joel Sikua was present even contributed to evidence assessment.
8. During the cross examination assessment with the appellant, there was no dispute that Justice Joel SIKUA was involved in the assessment of evidence in this case.
9. Local court justices have a special task in our judicial system. Not only to decide and presiding over local court matters. It is more important that a Local court Justice has to ensure that a fair process must be given in a court proceeding.
10. Conflict of interest in terms of local court justices is very important and a great concern in local court process. In any Local court sitting, where an objection raise against any local court justices, that objection must be respected and that local court justice must never be part of any process in the sitting up to decision making stage.
11. In this case, there were evidences that Justice Joel SIKUA was partly involved or seen around with the other parties during the site assessment. This court is of the view that a conflict of interest envisage, therefore, this ground of appeal is granted.

Appeal ground 2 to ground 11.

12. Having considered submission from both the Appellant and the Respondent, the court consolidated ground 2 to 11 and determined on ground 12. Evidence so far adduced during cross examination of the Appellant and the Respondent is overwhelmed that the Guadalcanal Local Court is erred in law to accept offers from the Respondent party during the process of the local court sitting on 6th of May 1998.
13. It is regrettable that some of the local court justices did not understand their judicial code of ethics stipulated under the Local Court Handbook. Local Court Justices are given difficult task to precide and decide over land matters. They have a special jurisdiction as the court they belong is an original jurisdiction to hear and determine the ownership of customary land. Therefore, their potentials are very important to play by the rule of law. If they have any conflict of interest on disputed land matters, they must immediately register their interest to avoid bias and unfair justices.

Conclusion

14. Base on the above findings, this court is of the view that the appeal is allowed on the basis that the Guadalcanal Local Court is erred in law to accept offers from the Respondent parties while the court process is not completed. Furthermore, the GLC is wrong to determine over the ownership of the land in question when there was no proper land site inspection recorded. Appeal allows and grants the following orders;

Order

1. Appeal allowed,
2. The GLC decision on the 6th of May 1989 is set aside.
3. The matter is remitted back to be heard by a new Local Court justices, and
4. This court decline to make any order as to cost.

Decision was verbally announced on.................. and written judgment delivered on dated this........................