IN THE HIGH COURT OF SOLOMON ISLANDS
(GOLDSBROUGH J)

CC: No. 335 of 2006

BETWEEN:

MOSES TETEAU and BARNABAS RONI
Appellants

AND:

ROBERT FIRIANO and MOVIN KUTAI
Respondents

Date of Hearing: 10 November 2010
Date of Judgment: 7 April 2011

Dr Tagini P for Claimant
Tinoni A for Respondent

JUDGMENT

1.	This is an appeal against a decision of the Malaita Customary Land Appeal Court (MCLAC) of 31 May 2006 concerning ownership of Lumabora Land. That decision was made on appeal from a hearing in the Local Court in 2000. The first time this land dispute went before a tribunal was when it was before a panel of chiefs in 1990. That decision, which was not so much a decision as a referral through lack of agreement, was reviewed by the Local Court in 1991, the MCLAC in 1996, and the High Court in 1998, from which the matter was sent back to the Malaita Local Court which made its decision and in 2000. It was that second Malaita Local Court decision which was the subject of the MCLAC presently appealed. 

2.	In 2000 when conducting a survey of the land, the Local Court determined to visit a small part of the area twice, on each occasion accompanied by only one side to the dispute. A reason given for this was that the relevant time was a time of social unrest and lawlessness. This issue, of the survey being conducted in this way is a present ground of appeal and was an issue raised in the MCLAC hearing. It needs to be emphasized here that apart from this particular area the balance of the survey took place in a completely appropriate way.

3.	A survey serves more than one purpose. Primarily it serves to demarcate boundaries, but just as importantly it allows a party to indicate where and the extent of their tambu sites within a land area. There is merit, therefore, in a survey taking place with all parties to the dispute present at the same time so that questions can subsequently be raised about tambu sites identified during such a survey. If one is not present when those sites are identified by the other side to the dispute, one might be at a disadvantage in subsequent hearings. 

4.	Yet it is not always the case that there is any disadvantage, and this question was clearly considered by the MCLAC in their decisions and their deliberations. In their judgment the MCLAC note the care with which the Local Court had identified important sites identified to them by each party and how each party was aware of the sites identified by the other party and thus able to raise questions about them. 

5.	A different issue which may arise from separate survey visits is the possibility of other matters being referred to by one party in the absence of the other which the tribunal members may take into account when determining the whole dispute. As they are not present, this danger is unknown to the other party and may result, if raised, in a successful challenge on natural justice grounds. It is this ground of an unfair hearing that forms the basis of the alleged error of law here. 

6.	Yet the unfairness that may have resulted following this survey is removed when the MCLAC relied only upon the written document that was prepared following the 2000 Local Court survey. Here, in the MCLAC decision appealed the only material from the 2000 survey was a written report of it, which forms part of the appeal book pages 147 – 157. There is thus no opportunity for any party to say or indicate anything in the absence of any other party, for each party in this hearing can see and can comment upon the written document which now represents the survey relied upon. 

7.	The question which then arises is should the MCLAC have decided to undertake another survey of its own. This would make a third survey. That decision was a matter for the MCLAC. The members of the MCLAC were under no obligation to undertake a survey. They are entitled to decide whether in their view a survey is necessary or not. They should hear representations from the parties on that, and in this instance did hear those representations. Those representations are recorded and again form part of the appeal book. 

8.	Following those representations the MCLAC decided not to perform their own survey and declined the suggestion that the matter be remitted to a panel of chiefs for them to perform a survey and a chiefs hearing. Those decisions were decisions that were within the competence of the MCLAC. Whether this court would have decided differently is not the question raised on this appeal. On this appeal it is contended that as a matter of law the MCLAC could not properly have decided as they did. 

9.	Whether any survey is undertaken is a matter for the panel of Chiefs, the Local Court or the CLAC whichever body is hearing the land dispute. There is no requirement that a survey must be undertaken. That decision is made taking into account what the parties have to say and what might or might not be available by way of material should a survey be conducted. It is a matter of discretion for the tribunal. It cannot be elevated to a question of law. 

10.	Whilst there may be grounds to criticize the original method through which this written report of survey came into existence (a matter which I do not have to decide as I am not dealing with an appeal from the Local Court that produced the survey) by the time that the written report was received into this present MCLAC hearing, it was a matter that the MCLAC could determine in their discretion whether it was necessary to undertake a further survey or whether the information that was properly available to the Tribunal was sufficient. That decision was taken after hearing from the parties on the issue. The decision was not to undertake a further survey and that decision was within the competence of this Tribunal. 

11.	The appeal based on an error of law to decide not to order a further survey must inevitably fail. It seeks to elevate a simple discretionary decision into a question of law when no such question of law arises. It should not be concluded as a result of this judgment that this Court condones the way in which the Local Court conducted the survey. If a tribunal of any sort determines that a survey should be undertaken then it must be undertaken in accordance with the rules of natural justice. That includes allowing each party to be present at all times during the survey unless through conduct one party makes it clear that they should not be allowed to continue to be present at the survey. In that case the party cannot claim to have been denied any right, they have by their own conduct forfeited that right. 

12.	In the amended notice of appeal there are three other grounds, two of which can conveniently be dealt with together as they raise the same issue. Before turning to deal with those I will deal with the final ground of appeal which is that the MCLAC should have referred the matter to a panel of Chief as the dispute had never been determined by such a panel as is envisaged, indeed required, before a Local Court can exercise any jurisdiction over any land dispute. 

13.	When this dispute first came to the attention of the Chiefs in 1990 no decision was made before the matter was referred to the Local Court because no agreement could be reached between the parties as to an appropriate panel of chiefs to hear the dispute. Having seen that agreement was not forthcoming the Chiefs remitted the matter to the Local Court (1991) which decision was the subject of an appeal to MCLAC (1996) and eventually the High Court (1998).

14.	Thus the Local Court when dealing with the case for a second time in 2000 was not dealing with anything new. It was, indeed, doing no more than it was ordered to do by the High Court. It was not within the competence of the Local Court to do other than that which the High Court ordered it to so. It was the direction of the High Court which gave the authority to the Local Court to hear and determine the issue. There was then no obligation on the Local Court to send the matter to the Chiefs because they had not made any decision. Indeed there is good reason why the Local Court should not do that, for they may be criticised for not complying with the order made in the High Court. 

15.	If the High Court in 1998 thought that the matter should begin again before a panel of Chiefs it would have made such an order. It did not and therefore it was not to be done. To complain that no such reference was then undertaken, some eleven years later, is quite unusual. In any event the emphasis on referring the matter back to a panel of chiefs was essentially for a further survey to be undertaken and not because they had not in the first instance made a decision. This ground of appeal also fails.

16.	As to the second and third grounds of appeal it is said that the MCLAC misinterpreted the effect of the decision of the High Court in that the MCLAC did not take into consideration all previous records of this case when it came before other courts. This comes about as a result of the remarks to be found in the MCLAC at the bottom of page four of its judgment where it is said that:-

After consideration it is clearly identified by the president High Court Judge, which this court notes that all previous records should not taken very much in considerations, but the present Local Court hearing.

17.	This follows the correct quoting of the High Court judgment where the judge quashed the previous MCLAC decision. It also follows a previous paragraph:-

This Court bears in mind that the old records from previous cases should be taken note of only to see whether there is consistencies between the present Local Court.

18.	Whilst one cannot determine with any great degree of certainty exactly what the MCLAC is finding at this point, it does not seem that they are determining that they are going to ignore some evidence and take into account other evidence. They are acknowledging that there may be material which indicates a consistency of approach (and by implication an inconsistency of approach) within the story of the parties over time, and that this might be taken into account but will not be a final or determining factor above all other factors. This approach is a perfectly correct approach to adopt in determining competing versions of events or histories. 

19.	The third ground of appeal is essentially the same. It follows from misinterpreting the decision that the MCLAC did not take into account relevant matters. This grounds fails on consideration of what the MCLAC clearly did take into account which can be ascertained on a reading of the judgment as a whole. No error of law was made here.

20.	There are no errors of law shown to have been made in the hearing of this matter before the MCLAC and for that reason this appeal itself must fail. Costs of this appeal are ordered to be paid by the Appellants to the Respondents, such costs to be agreed or taxed.

Dated this 7th day of April 2011.

GOLDSBROUGH J