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Espange v Wore [2021] SBHC 126; HCSI-CC 47 of 2020 (13 October 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 47 of 2020

BETWEEN

JOHN ESPANGE AND MARIANO MELE
Appellants

AND:

ISHMAEL WORE
Respondent

Date of Hearing: 25 May 2021
Date of Ruling: 13 October 2021

Mr. G. Suri for the Respondent
Mr. W. Rano for the Appellant

RULING ON APPLICATION SEEKING CLARIFICATION ON ORDERS 2 AND 6 THIS COURT

Faukona, DCJ: On 6^th July 2020 this Court made its judgment on an appeal filed by the Appellants. By its ruling delivered on 6^th July the Court made inter alia orders, orders 2 and 6. Order 2 read as follow:

“Order is hereby made that this case be referred back to Guadalcanal Customary Land Appeal Court (GCLAC) for rehearing of the appeal from the Local Court in full, by a differently constituted GCLAC”.
And or 6 as follows:
“Order that GCLAC to hear all the issues determined by the Local Court including the ownership issue. Conduct a survey of the land should the parties agreed to do so”.

2. The issue is whether the ruling on 6^th July 2020 means that CLAC may consider customary facts previously agued by the parties and determined by the Local Court or whether the appeal before the CLAC is confined to points of law only?
3. Order 6 of my judgment was self-explanatory. It was relevant because the Guadalcanal Customary Land Appeal Court (GCLAC) in this case had refused to deal with issues of facts and custom, and they could only deal with appeals on point of law. In other words, the GCLAC saw it fit to confine its jurisdiction to deal with points of law only. That could mean even if there was an appeal ground concerning issue of facts and custom they would not hear it, claiming lack of jurisdiction.
4. Comparatively, the Isabel Customary Land Appeal Court (ISLAC) in the case of Bako v Kolly^[1], gave a contradictory judgment by saying, “This Court has no jurisdiction to fully deliberate on the issues pertaining to elements of law”. With that twist of non-consistency of jurisdiction perhaps confused the Respondent in this case.
5. A close observation of the case of this case and Bako case, one would note that they were heard within the last decade. The Malaita Case of Lulu V Kona^[2], was a 2006 case heard on 18^th October 2011. It stated, “That a person claiming ownership of customary land must prove his claim based on custom in the area. That person must be able to know the land he claim, genealogy and custom applied.”
6. The Comparative decisions it is notable that recent qualified lawyers who are Principle Magistrates and who sat as Secretary to CLAC is not well versed with the provisions and case law that set out the jurisdictions of the CLAC. Most importantly they are not aware of or not familiar with the previous decisions of CLAC given in the previous decade, for instance Lulu v Kona ^[3], a case in 2006 and others in the like of Kekebua V Oiofa^[4], a 1995 case.
7. As a secretary to CLAC and a member, they ought to fully aware of the statutory laws and case law precedence. With lack of knowledge or laziness, as may deem, this is what we reap today, we have to repeat ourselves to remedy gross errors that were made by CLAC.
8. The decision and the orders I conveyed emulated from many of years experiences sitting with the CLAC during my time as a Magistrate.
9. For academic and learning purposes, a reminder is of significant by referring to relevant statutes and cases law which uphold the jurisdiction of CLAC.
10. Section 255 (4) of Land and Titles Act states that a Customary land appeal Court shall have and may exercise all powers of a Local Court. The specific power of the Local Court is entrenched in S.254 (1) with the exception of paragraph (a) and (b).
11. Section 256 (1) provides appeals from Local Court to Customary Land Appeal Court within three months from the date of decision or order, and by subsection (2) the CLAC may make any decision or order as it seem just in the circumstances of the Case. It is clear therefore that CLAC has an appellate jurisdiction, but the law does not expressly limit appeals or point of law only or to customary points only.
12. Conclusively Counsel for the Respondent is correct in submitting that within the appellate jurisdiction, the CLAC is entitled to enquire into all matters affecting or arising in connection with customary land and if any of it related to points of law as well.
13. For instance in the case of Kekebua v Oiofa, the Court stated, “the CLAC is in the best position to decide that question of fact and they did so... by properly considering the issue of upper boundary of Kao Land and come to the decision which is made”.
14. The above case is a fine reflection of the appellate jurisdiction of CLAC considering the question of fact which often refers to as evidence related to the issue of ownership of customary land.
15. Therefore when I made the orders (2) and (6) that was exactly what I had in mind at that time. I even mention conducting a survey. That could only happen after all the customary evidence have been tended, it inclusive of agreed map, genealogical table, history on discovery, custom properties, custom gift, award of reward for good deed etc and boundary marks clearly stated, inclusive any ground on point of law.
16. The next question for determination is whether the Appellant to CLAC is likely to amend grounds of notice of Appeal previously lodged. I must say no. I have perused the grounds of appeal and they are sufficient to invoke the CLAC jurisdiction to consider and determine grounds on points of law, and grounds based on matters of fact or customs.
17. When this Court deals with the appeal from CLAC, there was only one file that was Land Appeal Case No. 47 of 2020. There was no order for consolidation of another file Land Appeal Case No. 5 of 2020. Therefore, I am afraid orders in this case concern Land Appeal Case No. 4 of 2020 only.

Orders:

1. Order that Guadalcanal Customary Land Appeal Court (GCLAC) differently constituted to hear the appeal from Local Court afresh.
2. That the previous grounds are sufficient enough to invoke the jurisdiction of the CLAC to determine both issues of facts and custom, and points of law. No new notice of appeal is required.
3. That Orders (2) and (6) do not extend to Land Appeal Case No. 5 of 2020.
4. Cost of this application is to be paid to the Appellants on standard basis if not agreed.

The Court.

^[1] ICLAC No. 3/03 and 36/2013.
^[2] MCLAC No. 2 of 2006
^[3] Ibid (2)
^[4] Land Appeal No. 9 of 1995.