[1984] SILR 4

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No 8 of 1983

CAMPBELL

v

MAFUARA

High Court of Solomon Islands
(Daly C.J.)
Customary Land Appeal Case No. 8 of 1983

Judgment 10th January 1984

Customary Land Appeal - surveys - discretion to hold dissenting judgments.

Facts:

The Appellant appealed against the decision of the Customary Land Appeal Court (Makira/Ulawa) on the grounds that the court made errors as to which custom should be applied and as to how a survey by the court should have been conducted. The decision of the court was by a majority and dissenting judgments were recorded.

Held:

1. The ground of appeal relating to what custom should be applied had properly been struck out by the Registrar of the High Court as it was not a ground of appeal that fell with s 231B(3) of the Lands and Titles Act.

2. the decision whether or not to do a survey at all of if one was done how it was to be conducted was entirely a matter of discretion for the court (Lilo -v- Panda [1980-1981] SILR 155 approved)

3. that the practice of dissenting judgments being given and recorded was not desirable in cases of this nature (comments of Davies C.J. in Taloibiu -v- Ramousia CLAC 8 of 1979 disapproved and not followed).

Appeal dismissed.

Cases referred to:

Lilo -v- Panda [1980-1981] SILR 155
Taloibiu -v- Ramousia CLAC 8 of 1979 unreported

Daly CJ: This is an appeal from a majority decision of the Makira Ulawa Customary Land Appeal Court. A majority of four of that court decided on the 27th May 1983 that an appeal from the Star Harbour Local Court should be allowed to a limited extent. The Local Court had held on 2nd October 1982 that land called Cape Surville or Taura (amongst other names) should be physically divided between Mrs Helen Campbell (the present Appellant) on the one hand and Derrick Mafuara and Timothy Temao (the present Respondents) on the other. The majority of the C.L.A.C. upheld the decision that both the Appellant and two Respondents were entitled to interests in the land but decided that the proper order should be that the Appellant should take one half share in the land and that the two Respondents should have the other half share in the land. In dissenting judgments one justice decided that the Appellant should take the land absolutely and one that a further party (there were three Appellants in the C.L.A.C. and 5 parties in the Local Court) should take absolutely.

Reading the records and judgments of both the Local Court and C.L.A.C. it becomes immediately apparent that a great deal of careful and thorough work has already gone into this case. The Local Court record consists of 52 typewritten pages of evidence and a judgment of 4 pages. The record of the evidence taken by the C.L.A.C. consists of 85 pages and the judgment of 6 pages. The CLAC spent two days in surveying the land. The majority judgment is, in fact, (apart from the difference as to the nature of the order) a decision which has the support of seven justices of either the Local Court or Customary Land Appeal Court. Not satisfied with that the Appellant now seeks to have this Court remit the case for retrial on the basis that the courts below have not dealt with the case adequately.

Mr Fred Campbell who spoke courteously and well on behalf of the Appellant made two points. His notice of appeal of 19th August 1983 had three points but Point 3 was a reiteration of the other two points. The first point was that the CLAC and Local Court had failed to appreciate an important distinction in Makira custom between Amwea ifinua or true tribe of an area and the normal Amwea tribe. In accordance with powers granted by the High Court (Civil Procedure) Rules 1964 the Registrar of the High Court sent to the Appellant on the 1st December 1983 an order striking out this ground as it disclosed “no reasonable ground of appeal claiming that the decision of the court below was erroneous in law or that there was a figure to comply with the procedural requirement of a written law”. The reason why the Registrar is given power to act in this way is that an appeal to this Court can only be brought on the basis of error of law or procedural failure. Indeed section 231B (3) of the Land and Titles Act, from which this phrase is taken, expressly provides that “law” in this context does not include a point of customary law. It is, therefore, apparent that this Court is not given powers to consider whether or not the courts below erred in custom.

But that is exactly what the Appellant in her first point is seeking to persuade the Court to do. The CLAC and Local Court are the courts given the power to decide the custom and this point should have been made to them. It is too late to make it in this Court and the Registrar’s order striking this point out for want of jurisdiction to deal with it must stand.

The second point relates to tambu sites. These sites, as so often is the case in customary land matter, played an important part in the decision. The majority decision refers to the Appellant’s claimed sites in this way (the Appellant was the First Appellant in the court below):-

“The Local Court placed much weight on the first Appellant’s tambu places. We are quite certain that neither Waikaru or Waiapu site are real burial sites and we are also satisfied that the water catchment area is a recent development. As regards Faumaro we are undecided. We cannot rule it out altogether. Getewaru on the other hand, which is just outside the Taura Land, is in our view a genuine site. It has all the hallmarks. The area undoubtedly was the site of some ancient village. There is a bay a water source, a passage the Reef and the burial site is yet one more indicator. We do not accept that it was caused by a landslide. Indeed, even Reresimae himself states “The place where the black stones lay is in my view a real burial site”. He is unable to identify it further and clearly it contradicts his claim that Taura was uninhabited.”

Of the Respondents’ site they said:-

“The Respondent claims that his ancestors lived on Taura land. He recited his genealogy as far back as Warapuma but can go no further. He showed the court Warapuma’s burial site. The Local Court accepted this and indeed it formed the crux of their decision. In this court the authenticity of that site has been strenuously challenged by the 2nd Appellant’s witnesses some of whom were workers on Henry Kuper’s plantation. They state that Taumanimani was buried at the site. Given the strength of their evidence we accept that. However, on the survey we noted a small plot a few yards away, marked by the Ciri plant. We examined this closely and reached the conclusion that on balance it was in fact an ancient burial site which probably predated the plantation. The fact that there were no stones may be answered by the probability that they were moved for use at Taumanimani’s site.

Given that we accept that Warapuma existed and accepted his burial site at the mark of the Ciri plant, and given that we accept the story of Arufe, we are bound to find that the Respondents have an interest in this land.”

One dissenting judgment described the evidence of this site as “marginal”.

The Appellant now says that these difficulties could, and should, have been resolved by excavating the claimed sites and examining the bones to ascertain whether there were more than one set of human remains in the site. If there were not, he submits, that would be conclusive that the site was not a real custom tambu site. Such a site requires more than one person buried in it. This suggestion was made to the CLAC. The majority said:-

“During the course of the hearing, a number of parties suggested that the sites should be dug to ascertain whether they contained bones. It was even suggested that some should be carbon dated. No formal application was made to the court but we wish nonetheless to make our position clear. Burial sites should be treated with the reverence and respect they deserve. We share the view expressed by the Malaita Customary Land Appeal Court in the case of Andrew Buga v. Justus Ganifiri 1982, and for the benefit of the parties we will repeat what that court had to say – “... These sacred places are of vital importance in Melanesian custom and it is wrong to spoil them…..””

Just as whether or not to go on a survey at all is a matter for the discretion of the court (see Lilo v. Panda [1980-1981] SILR 155 at page 169) so, clearly, what the court does on a survey is a matter within its discretion. I must say that I understand and sympathize with the position taken by this CLAC and the Malaita Customary Land Appeal Court. Whether one holds to the custom beliefs or not there is in all of us a reluctance to interfere with graves and grave sites; particularly when they were, and sometimes still are, held to be sacred places by some. When we say all tradition and respect must give way to our present needs we are embarking on a course of destruction of that which cannot be recreated. In the final analysis, as a matter of law, the CLAC has a discretion and the exercise of it by a refusal to dig up, or move stones on, a tambu site could not in any way be said to be such an exercise as to enable this court to interfere. This point too must be rejected.

I must add that I read the proceedings and judgments of these two courts with admiration. I have not come across any customary land case in which there has been such a thorough, fair and dedicated approach to the difficult tasks which face customary land courts. Star Harbour and Makira Ulawa are fortunate in the excellence of their Local Court and Customary Land Appeal Court respectively.

Perhaps I can be forgiven for offering one comment on the procedure adopted. As I have indicated, in the CLAC dissenting judgments were recorded. This does have the approval of my learned predecessor Davis C.J. in Taloibiu v. Ramousia (High Court CLAC 8/79). However dissenting judgments, even the best legal brains, have the disadvantage of watering down the effect of the majority decision which, of course, is the one which decides the future legal position. In cases such as this, where the decision is based on observation and evidence, differences of opinion should be discussed in private. If the differences cannot be resolved the view of the majority must prevail. That becomes the judgment of the court and must be loyally accepted by those who do not agree with it. That is a position which obtains in many tribunals throughout the world and has the distinct advantage of a court, usually concerned with matters of fact, speaking with one voice. It also preserves the secrecy of discussions and anonymity of views. This might be thought particularly desirable in a small community. In my judgment, with all respect to my predecessor, if there is a practice of dissent being recorded and dissenting judgments being given it should be discontinued. In an extreme case, perhaps, a member could indicate dissent by not signing the judgment. But this should be unnecessary in most cases.

I should add that this comment on procedure does not in any way detract from the admiration which I have for the excellent way in which the Makira Ulawa CLAC dealt with this difficult case.

Appeal is dismissed with costs. Out of the deposit of costs $58 be paid to the Respondents.