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Wateniua v Manui [1997] SBHC 95; HCSI-LAC 2 of 1997 (7 October 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 2 of 1997

VINCENT SAMO WATENIUA AND JOHN ALICK DADALO

-v-

JOHN MANUI AND JOHN RATU

High Court of Solomon Islands
(LUNGOLE-AWICH, J)
Land Appeal Case No.2 of 1997

Hearing: 7 October 1997
Judgment: 7 October 1997

T Kama for the appellants
A Nori; for the respondents

JUDGMENT

(LUNGOLE-AWICH, J): This appeal is from the judgment of the Malaita Customary Land Appeal Court dated on 25.10.1996. That judgment confirmed judgment of the Malaita Local court dated 29.5.1996. The judgment was in favour of the respondents, John Manui and John Ratu representing their clan or line. They were declared by the Local Court to be the owners in custom of Ndai Island. The appellants now, Vincent Samo Wateniua and John Alick Dadalo were defendants in the Local Court and appellants in the Customary Land Appeal Court. They lost the case at first hearing and on appeal. They had earlier succeeded in their claim before the Olemaoma Council of Chiefs, but that decision, which is only binding if parties consent to, was not consented to by the respondents in this court, so the case went to the Local Court. Council of Chiefs remains a non-statutory and therefore non-binding tribunal although in practice, according to records received at the High Court, it is a very active forum. I think it is the forum with the most knowledge of the customs and customary laws of the locality. Consideration could be given to conferring statutory authority to Council of Chiefs so that its decision becomes binding, but subject to appeal. The appellants did not attend at the trial before the Local Court on 29.5.1996. They were properly served 3 days earlier. They have now contended that 4 days notice was short notice. In fact that case had been listed for hearing on 22.5.1996. The trial did not take place because of financial difficulty of the court administration. Appellants said that they attended at court on 22.5.1996 and upon being told that the trial was cancelled because of the difficulties in finance, they returned witnesses to their homes and themselves return home. They were then on 24.5.1996, two days later, visited by police who served them with notice to attend on 28.5.1996. Appellants said that the time was too short to collect their witnesses again, the sea was rough and they did not have enough fuel to travel to court at Malu’u.

The main reason for failing to get the court to sit on 22.5.1996, resulting in returning of parties and then re-listing the case for subsequent hearing 6 days later was difficulty with money. That difficulty is beyond the powers of the magistrate in charge and in fact not his responsibility; he tries to get court business including Local Court business proceeded with in the best way he considers. We should all appreciate that. It is also very disorganising to parties to attend court only to discover that Local Court justices could not travel to attend because of difficulty in the finance of the court. I think parties should try hard to meet short notices issued by court because the court itself is usually uncertain about available finance. Many times courts wait helplessly for the authorities concerned with money to provide the necessary money. That may be done at the eleventh hour or not at all.

In presenting their appeal, the appellants applied to lead new evidence. They say had they attended at the Local Court, they would have presented the evidence. They made the same application before Customary Land Appeal Court, but they were unsuccessful.

In this case the judgment of the Local Court given on 29.5.1996 was based on evidence which was not contested because appellants, the defendants then, did not attend. Technically the Local Court was entitled to rely on the uncontested evidence because notice, although short notice, had been given. I have considered whether if the appellants had been present and adduced evidence, such evidence could have been material in the determination of the issues before the Local Court and whether it would have had impact adverse to the evidence given by the respondents. My view was that the evidence would have been material to the issues and might have had adverse impact. The affidavit of Vincent Samo Wateniua, the first appellant, states that the evidence would be about genealogy, shark totem, customary priests of the area and their successors. Those are the items of evidence that were material in persuading the Local Court to decide for the respondents and their clan. There is probability that if another version had been given to the court on those points it might have had impact and there might have been different conclusion. I have also considered whether the appellants were in flagrant disobedience of the notice issued by the Local Court. I concluded that they were not. They might have thought it impossible to get their witnesses in 3 days and gave up. In the testimony of the’ policeman who served them it. is stated that one of the appellants actually said, “never mind the short notice, we shall attend.” I consider that the decision of the Customary Land Appeal Court to refuse new evidence was a decision on written law and on procedure and I think that court was wrong on the point.

In the end, in the interest of justice, I allow application of the appellants that they be allowed to call new evidence. I however think that it will have to be done in local court forum, I order the case referred back to the Malaita Local Court. The Court may comprise the same justices or some may be different. Appellants are to be afforded opportunity to present their evidence and be heard. The respondents may also wish to call further evidence and be heard afresh, if so, they too are to be afforded opportunity. The rest of the appeal points are stood over indefinately. The decision of the Local Court made after having heard evidence for the appellants will be binding, except that it may be appealed against in the normal way. Appellants have been successful only to the limited extent that their application to call new evidence has been allowed

The responsibility to get the case heard in the Malaita Local Court rests with the appellants although the respondents may take initiative if they wish. The appellants are to report within 60 days to the High Court, their efforts in getting the case heard in the Local Court. In view of the fact that it was the appellants who did not attend on 28 and 29.5.1996, it is ordered that they pay the costs of this appeal and of the hearing by the Local Court on 28 and 29 of May 1996, and of the Customary Land Appeal Court. Costs in favour of the respondents against the appellants.

Sam Lungole-Awich
Judge

Dated this 7 day of October 1997
At the High Court
Auki