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Gusa v Raigela [1983] SBHC 15; [1983] SILR 166 (5 July 1983)

[1983] SILR 166

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 9 of 1983

GUSA

v

RAIGELA

High Court of Solomon Islands
(Daly C.J.)
Civil Case No.9 of 1983

5th July 1983

Customary Land - contempt of court orders - practice - Contempt proceedings - restriction of allegations in.

Facts:

The Applicant’s line had been found in the Local Court and Customary Land Appeal Court to be owners of TIVIALE customary land. Those courts also found that the Respondent’s line had been given a piece of land inside TIVIALE land, known as TUPAOLI land; that they were entitled to certain existing properties outside TUPAOLI: and that the Applicant owed a. duty in a “chieftain role” towards to Respondents. The Applicant alleged that the Respondent’s line were in contempt of court in relation to its activities inside TIVIALE land but outside TUPAOLI land. During the trials the Applicant also sought to allege that the Respondent was in contempt not complying with an interim injunction.

1. That although the orders of the Local Court and Customary Land Appeal Court did not expressly prohibit the acts alleged against the Respondent, looking at what those courts were trying to achieve with their orders, the court should try to give effect to the intent of those courts.

2. The effect of those orders was to restrict the rights’ of the Respondent to use part of Tiviale Land outside Tupaoli land.

3. In considering a case of alleged contempt the court should restrict itself to the allegation contained in the application for leave to proceed and the affidavit in support. (O. 61 r. 5) In particular leave must be granted afresh to proceed for contempt of an interim order.

4. On the facts one allegation of contempt was made out.

Case considered:

Lilo -v- Ghomo [1980-1981] SILR 229

For Applicant: K. Brown
For Respondent: (for early part of case only) A. Nori

Daly CJ In this case serious allegations are made that the respondent (Henry RAIGELA) and his line have acted in defiance of court judgments and orders of this Court. Such allegation is serious as when courts make decisions then those decisions must be observed and the resulting orders complied with. This is particularly important in relation to land matters, whether in relation to customary or other land, as allegation of defiance of a court order can, as this case demonstrates, cause ill feeling which can quickly escalate with a difficult and dangerous situation.

The matter arises in relation to customary land on Guadalcanal. Its name is TIVIALE land. Disputes about this land have been to courts on a number of occasions. In 1968 such a dispute was before the Tasimboko Local Court. In that case the parties were the same as in this present case insofar they were two lines; RAIGELA’s line on the one hand and GUSA’s on the other. I shall use these names throughout for convenience as these two men are currently the heads of these lines. The decision of the Tasimboko Local Court given on 20th June was short and to the point. It was: -

“Court found out that the land belongs to GUSA. And GUSA gave a piece to (RAIGELA’s) family. So (RAIGELA) stay under GUSA’s care. Also GUSA have no power to send RAIGELA’ s) family out of that land because beating drums was a big thing in our custom before. So (RAIGELA) has right to settle down in the Land.”

(This case, in fact, a relative of RAIGELA was named but it is not a matter of substance).

The land went again to the Local Court in 1980 in Local Court Case No. 42/80. In that case there was an allegation that RAIGELA had purported to buy TIVIALE land from POE, thus, lit were, endeavouring to get around the clear finding in Local Court Case No.24/80 decision. The Local Court held that that sale was of effect in view of the 1968 decision and this was found to be correct on appeal to the Customary Land Appeal Court (“CLAC”) and this Court. However this Court in a judgment given on 9th February 1982 took the view that the spear lines of the land given by GUSA to RAIGELA for the beating of the drum not been decided and that they ought to be clarified. The case was remitted back to the Local Court to decide the spear lines.

The Local Court gave their decision on 19th May 1982. The piece of land given for beating the drum, which is called TUPAOI land, had, so the court decided, the boundaries as defined by, RAIGELA appealed. The CLAC upheld the boundary as found by the Local Court and went on to say in its judgment of the1st November 1982:-

“2) That RAIGELA and members of his line has right of occupation and use subject to GUSA’s consent occupation to Custom (and that GUSA as was ordered in 1968 has the duty of care towards RAIGELA ... and members of (his) line.

3) That properties of the lands outside this boundary and within GUSA’s land remain the properties of RAIGELI and members of the line until the end of their economic age.”

Clarification was sought of these two paragraphs. As to 2) the CLAC in a judgment given on 10th May, 1983 said:

“Thus what we meant by right of occupation and use is what is meant in custom rather than what it may mean in its strict sense by confirming the rights to a specific area. Such right is, in custom subjective to consultation or ‘letting the chief know first’ before doing anything, in this case, on the land outside the specified area.”

As to paragraph 3), the CLAC said that some properties RAIGELA were outside the boundary of TUPAOLI land. If those properties were developed with the consent of the chief or if it could be assumed that the chief consented by the fact or if he raised no objection during development then they were the true properties of RAIGELA. These fell within paragraph 3). Any properties developed during the period of the dispute and without consultation would not fall within paragraph 3).

I say nothing about the jurisdiction to make these findings in paragraph 2) and paragraph 3) or to make the clarifications to which I have referred. But it will be readily appreciated that a complex situation bas been created. This involves:-

(a) Rights to TUPAOLI land which is inside TIVIALE land. Inside the spearlines of TUPAOLI land as defined by the Local Court RAIGELA has freedom to live and cultivate as he wishes, according to all the courts.

(b) RAIGELA’S rights to properties in the remainder of TIVIALE land, RAIGELA, according to the CLAC, has a right to existing properties in the remainder of the land cultivated by him after consultation and grant of consent by GUSA or in relation to which, by reason of lack of protest, GUSA must be assumed to have consented.

(c) The duties of GUSA in his chieftain role towards RAIGELA that is, not only to give a portion of land where RAIGELA and his line “would toil and live” but also “to see that they are safe and secure from their enemies and he would be their immediate source of help in times of trouble and peril.”

This history of the litigation about this land between these two lines is a reflection of the unhappy relationship between those lines.

It may well have been that when TUPAOLI land was given by GUSA to RAIGELA it was good useable land. However that is no longer the case. The CLAC described the land as “nothing but ground and unsuitable for human habitation nor for gardening.” What seems to have happened is that RAIGELA and his line have over the years moved out from TUPAOLI land. I should emphasize that references to “living” on the land are inappropriate as RAIGELA’s village is outside TIVIALE land altogether and across a river which forms one of the boundaries of the land. The use of the land by RAIGELA which in dispute is a use for gardens and, I am told, commercial development such as copra and cattle.

GUSA says the movement by RAIGELA into TIVIALE land gathered strength after the Local Court case in 1968 and that as a result GUSA and his line were driven out of land and went to ARO ARO plantation where he took work. GUSA’s evidence was that the coconuts were planted shortly after the 1968 case and a cattle project was started in 1970. The whole tenor of his evidence was that since 1968 he, as chief of the land, had been overriden by RAIGELA who with his line had assumed the rights of owners. Certainly in relation to the period since 1968 when GUSA left the land, it is difficult to argue that GUSA consented to any development by RAIGELA or that, in the circumstances, GUSA’s failure to protest can, in any real sense, be taken to be tacit consent. He was completely ignored and those circumstances protest would not have been effective. As he said himself “I could not stop them”. GUSA is clearly an elderly and not very forceful man but that can only strengthen the point that his failure to protest cannot be deemed to consent.

In this court the notice of motion seeks a writ of attachment against RAIGELA as representative of his line.

“for your contempt in that you wilfully failed to observe and comply with the decisions of the East Tasimboko Local Court dated 19th May 1982 and the Customary Land Appeal Court for Guadalcanal Province dated the 1st of November 1982 relating to TUPAOLI land.”

I have already referred to the decision of 19th May 1982 being as to the boundary of TUPAOLI land. The decision was that:-

“According to the Plaintiff statement the Local Court had approved that TUPAOLI Boundary should be the only Boundary for Henry RAIGELA’s group.”

The decision of the CLAC of 1st November 1982 upheld that decision of the Local Court and added to it the statements dealing with rights outside TUPAOLI land.

The difficulties which GUSA must face in this case are, twofold: First, can there be contempt of a court order which does not expressly forbid an act or require an act but merely defines rights? Second, even if there can be such a contempt has the contempt been established on the facts of this case with sufficient particularity as to enable this Court to impose penal sanctions?

In parenthesis I should say that during the trial sometime was spent on what was said to be wilful disobedience to an interim order made by this Court on the 29th March, 1983. However no leave was sought to serve notice of motion to attach on this basis, which is a different basis to that contained in the original notice. I do not consider, therefore, that the Court is at present seized of an application to attach for contempt of the interim order. It is, to my mind, imperative that when a court is asked to exercise penal sanctions it should only do so after proper observance of the procedures which enable the court and the applicant to have full notice of what is being alleged. Formal notice was given neither to the Court nor the respondent that a breach of the interim order was to be alleged.

I return to the two questions I asked earlier. First, as to the orders which it is said RAIGELA failed to observe. These orders must be read in the context of the earlier orders as, although they relate mainly to the question of the boundary of TUPAOLI land, they are a further definition of the findings in the 1968 case as to the rights of the two parties. In customary land cases one should not look for orders couched in familiar legal language; indeed as the Court indicated in Lilo & Another v. Ghomo (1980-1981) SILR 229 at page 233 there are dangers in expressing rights to customary land in the term of received law. One should look at what the courts were trying to achieve with their orders, approaching those orders with a fair and open mind and having regard to the language difference and endeavour to give effect to that intent.

I have already indicated the view I take of the substance of those orders. They amount to a restriction on the rights of RAIGELA to use the parts of TIVIALE land outside TUPAOLI land.

If it is clearly established that RAIGELA is using those parts TIVIALE land in defiance of those restrictions he must be in contempt of the orders of the Local Court and Customary Land Appeal Court.

I turn now to the allegation made which are as set out in the Statement attached to the application for leave and the affidavits in support of that application. Order 61 rule 5 of the High Court (Civil Procedure) Rules 1964 (which applies to these proceedings by virtue of Order 61 rule 21 (1) provides in paragraphs (1) and (2) as follows:-

“5. (1) Copies of the statement accompanying the application for leave shall be served with the notice of motion or summons, and copies of any affidavits accompanying the application for leave shall be supplied on demand and on payment of the proper charges, and no grounds shall, subject as hereafter in this Rule provided, be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.

(2) The Court may on the hearing of the motion or summons allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand and upon payment of the proper charges copies of any such further affidavits.”

No application to amend or file further affidavits was made and therefore the Respondent had no notice of further allegations and, insofar as such allegations were made in evidence, I do not have regard to them. The burden of proof is upon the Applicant to establish the allegation made.

The specific allegations are contain in paragraph 4 of the Affidavit of GUSA dated 26th January 1983. Allegation (a) reads:

“On 7th January 1983 (the defendant and/or members of his line) cut down a coconut and apple tree belonging to members of my line in the area (marked on a map).”

The allegation is denied by the Respondent (see paragraph 4 of I his affidavit). The evidence in support of this allegation comes from Milton LANETELIA who said “After this they cut small apple trees, ngali nuts taking the fruit...Apple tree is marked ‘B’ (on the plan)”. I am not satisfied on this evidence that the apple tree is not a property which the Respondent entitled to regard as his within the terms of the order of the CLAC and I therefore decline to consider this as an act of contempt. The same must be said of the allegations as to taking the fruits of ngali nuts (paragraph 4(d)) and breadfruit (paragraph 4(f)) The only evidence to support the allegation of cutting down a coconut tree (part of paragraph 4(a)) is a claim to that effect by GUSA who admits that he himself cannot give direct evidence of such cutting. There is no evidence at all of the cutting down sago palms (paragraph 4(h)). The allegation in paragraph 4(b) of damage to a tambu place is supported by the evidence of LANETELIA who says RAIGELA’s line told him it had been done by children. I do not consider any of this evidence sufficient to found a case of wilful contempt.

The remaining allegations are in paragraph 4(c) and paragraph 4(e). The latter alleges that the Respondent “kept cattle inside the area hatched blue on the plan”. This is not disputed: see paragraph 7 of RAIGELA’s affidavit. However I find this a difficult matter. The project has been there for a considerable time; on the evidence of GUSA since 1970.

I am hesitant about reaching a conclusion in these proceedings that maintenance of such a long standing project, in which considerable money may be tied up, amounts to contempt of court. No express reference is made to it in any of the judgments to which I have been referred. I consider that this project should be subject to a detailed consideration by a court and appropriate orders made in relation to it, before a court can safely order that maintenance of it by RAIGELA cease. If the land is wrongfully enclosed and used a suit claiming possession and damages for trespass is a more appropriate course than these proceedings. I therefore decline to find that contempt has been committed in relation to that project. Leaving open the question, as I do in relation to the earlier allegations, as to the rights to the properties specified.

Paragraph 4(c) alleges working of new gardens in the area hatched red on the plan. The evidence here is clearer. GUSA says that new gardens were worked without his consent. LANETELIA also gives evidence of new gardens being worked in the early part of this year and of an admission by a member of RAIGELA’s line that they were planted by her. In relation to these new gardens there was no challenge in the Affidavit of RAIGELA or in the crossexamination. I find that RAIGELA’s line have planted new gardens in the area of TIVIALE land outside TUPAOLI land in this year 1983 and this development was without the consent of GUSA and in a situation where he could not be taken to consent. In view of the terms of the court orders made by the Local Court and Customary Land Appeal Court this conduct was in clear defiance on the restriction embodied in those orders. I therefore hold that, in this respect, the line of which RAIGELA is head and which he represents in this Court, is in contempt of court.