1985-1986 SILR 218

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case Nos. 109 and 101 of 1986

MAE

v

KONIHAKA;

MAERU

v

MINDU

High Court of Solomon Islands
(Ward C.J.)
Civil Case Nos. 109 and 101 of 1986

3 September 1986 at Honiara
Judgment 3 September 1986
Reasons for Judgment 5 September 1986

Customary Land - ownership in issue - damages for trespass - whether Magistrate’s Court has jurisdiction

Facts:

Both of these appeals depended on the interpretation of s.231 of the Land and Titles Act which provides that Local Courts shall have exclusive jurisdiction in all matters "affecting or arising in connection with customary land". Accordingly, they were heard together.

In Mae the appellant appealed against a decision of the Magistrate’s Court (Eastern) which found that the respondent was the actual owner of the coconut plantation that he had been using and accordingly dismissed the appellant’s claim for damages for such use. The appellant prayed that the decision be quashed and that the matter be referred to the Local Court for rehearing.

In Maeru the appellant appealed against a decision of the Magistrate’s Court (Western) which found that the respondent was liable for damages to the appellant’s land by reason of the trespass of the respondent’s cattle thereon but which declined to rule on the quantum of damages because it was an issue that required an interpretation of customary law and therefore was outside the jurisdiction of the Magistrate’s Court. The appellant appealed on the ground that the learned Magistrate erred in holding that he had no jurisdiction.

Held:

1. In Mae the issue was ownership of the land which clearly was a matter "arising in connection with customary land". Therefore, the Magistrate’s Court had no jurisdiction to hear the case. Accordingly, the decision of the Magistrate’s Court was quashed and the parties were advised to proceed in Local Court subject to the Local Courts (Amendment) Act 1985.

2. In Maeru ownership of the land was never in dispute and it is not the function of the Magistrate to strain the facts to find any possible connection with customary land and therefore decline jurisdiction.

Accordingly, the decision of the Magistrate was quashed and the case was remitted for hearing de novo by a different magistrate.

No cases considered.

Kenneth Brown for the Appellants
Andrew Radclyffe for the Respondents as amicus

Ward CJ: Both these appeals depend on the interpretation of section 231 of the Land and Titles Act and so they have been listed together.

APPEAL 109/86

This is an appeal against the decision of the Magistrate’s Court in Kira Kira on 2nd October 1985. It was a claim by the appellant for $1000 for the use of his coconut plantation by the respondent for the years 1979-84. The magistrate found in favour of the respondent.

The appellant prays that the decision of the magistrate be quashed, the matter be referred to the Local Court for rehearing and costs.

APPEAL 101/86

This is an appeal against the decision of the Magistrates’ Court Western District and was a claim by the appellant for damages caused by the trespass of the respondent’s cattle.

At the first hearing the learned magistrate found in the appellant’s favour on the issue of liability but adjourned the question of quantum. Having heard further evidence on that issue, he ruled that he had no jurisdiction to deal with the issue as it was connected with customary land.

The appellant appeals to this court to set aside the judgment on the single ground that the learned Magistrate erred in law in holding that he had no jurisdiction to hear the case.

Section 231(1) of the Land and Titles Act reads:-

"231(1) A local court shall, subject to the provision of this section, and section 8D, 8E and 8F of the Local Court (Amendment) Act 1985, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than-

(a) any such matters or proceeding for the determination of which some other provision is expressly made by this Ordinance; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land,"

The question in both appeals, therefore, is whether the cases were properly brought in the magistrates court or should have been heard in the local court.

APPEAL 109/86

The appellant was the plaintiff. He gave evidence of use by the defendant of his coconut plantation for 4 years. He told the court that he would be calling two witnesses who would explain "to whom of us is the plantation owned, either by me or the plaintiff."

From the point the trial proceeded entirely on the basis of a contest as to the ownership of the land and the subsequent right to the coconuts.

Although the learned magistrate warned himself in the following terms:-

"The matter in argument before this court is absolutely outside of any litigation with due respect to land, save the plantation. I remind myself of the basic fact of the dispute, that plantation and a claim of $1000 is core of dispute"

his judgment deals with the whole question of ownership of land concludes:-

"All in all I am satisfied by the defendant’s evidence and, therefore, adjudged that he is the owner of the plantation. The claim of the plaintiff is hereby dismissed."

This clearly was a matter arising in connection with customary land. The appeal is allowed and the decision of the magistrates court is quashed. The parties should be advised to proceed in the local subject to the provisions of the Local Courts (Amendment) Act, 1985.

The appellant has asked for costs. Having chosen to bring the case in the magistrate court, he lost and now appeals on the bases of lack of jurisdiction. No order as to costs.

APPEAL 101/86

The appellant was the plaintiff in this case and the respondent did not appear.

The record shows that, at the outset, the court was aware of the possibility that section 231 would apply:

"I note section 231 Land and Titles Act. On its face the issue appears to be a straightforward case in tort. I am satisfied that I can proceed on the basis that no question of ownership or custom rights in land is raised - if such a question is raised the matter ought properly be referred to the local court. Will consider later."

The court then proceeded to hear evidence from the plaintiff and one witness, an Agriculture Extension Officer, to the effect that some cattle broke out of the defendant’s fence and came into the plaintiff’s garden causing damage. They were chased off by the plaintiff save for one which was caught in the wire and had to be shot. That cow was subsequently identified as belonging to the defendant, and, when the Agriculture Extension Officer spoke to him about it, the defendant admitted it was his cattle that trespassed.

The magistrate then recorded an "interim finding" that the defendant was liable.

At a subsequent hearing on quantum, the plaintiff again gave evidence followed by an acting assistant field officer in the Agriculture Division. This evidence dealt exclusively with the damage to crops and the value.

Having heard the summing up for the plaintiff, Mr Hughes of the Public Solicitor’s Office for the plaintiff was invited "to make submissions on the question of jurisdiction: (s.231 Land and Titles)" and this was done in the form of a well argued written submission.

In his judgment, the learned magistrate dealt with the reserved question by stating that;

"The rights of compensation for damage on land is as much a question of ownership [as any other right]. In customary land, rights must be decided in accordance with the custom appertaining to it.

Section 231 Land & Titles Act recognises that civil matters relating to the rights and customs of customary land require a specialised forum. As a magistrate I know that in certain circumstances custom gives power to a landowner to kill intruding pigs. Nonetheless, it is possible, albeit unlikely, that owing to some particular custom of the land in issue, the plaintiff in this case has no right of redress against the defendant. But who am I to say? I do not have the specialist knowledge of custom with which to judge. In recognition of this, Parliament has ensured that I do not have the jurisdiction to judge.

Section 231 of the Land & Titles Act gives the local courts that jurisdiction. Theirs is the exclusive jurisdiction in all matters of a civil nature arising out of or in connection with customary land. It is clear that the case before me is a civil case which is connected with customary land. I have no jurisdiction to deal with it."

It is correct that section 231 recognises that the interpretation of custom in relation to customary land requires a specialised forum but the magistrate has cast his net too wide. He has interpreted the words "affecting or arising in connection with customary land" as meaning "arising out of or in connection with customary land".

The words in the section define two main categories of case; those affecting customary land and those arising in connection with customary land. Had there been an additional category of matters arising out of customary land, this case may have fallen in it but there is no such category in section 231.

This was a case of trespass to crops by cattle. The ownership of those crops was never disputed. Had it been, the matter may have been covered by section 231. A magistrate must, of course, always be vigilant in a civil case to see that, if it falls within section 231, he immediately stops the hearing and advises the parties that the local court has exclusive jurisdiction. But it is not part of his function to strain the facts to try and find any possible connection with customary land and, if he does, decline jurisdiction.

In this case, the matter was in the jurisdiction of the Magistrates Court. The magistrate has since left. I feel it is right to quash his finding and remit the matter to the magistrates court to be heard de novo.

The appellant in this case proceeded on legal advice and rightly so. I order that any court fees paid by him in relation to the appeal be returned.