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Misiti v Elofiramo [2024] SBHC 167; HCSI-CC 59 of 2021 (18 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 59 of 2021

BETWEEN:

MORRIS MISITI and BARTHOLOMEW RIOLO
Appellants

AND:

DAVID ELOFIRAMO, GEORGE LINGGANAFELO GENESIS OTALIFUA
First Respondents

AND:

MALAITA CUSTOMARY LAND APPEAL COURT
Second Respondents

Date of Hearing: 1 October 2024
Date of Judgment: 18 October 2024

Counsel
Mr N Laurere for the Appellant
No appearance for the Respondent

JUDGMENT ON APPEAL

1. The parties dispute the ownership and boundaries of Alilo customary land in North Malaita. The matter came before the Local Court in Malaita which delivered its ruling on 19 June 1998. The First Respondents had appealed that ruling to the Malaita Customary Land Appeal Court [‘MCLAC’]. The MCLAC had dismissed all the appeal grounds but nevertheless found in favour of the First Respondents. The Appellants appealed to the High Court. On 30 May 2019 the High Court heard the appeal. The High Court remitted the case to a differently constituted MCLAC for rehearing.
2. The case was then heard by the MCLAC in November 2020 with judgment being delivered on 13 November 2020. The MCLAC made the follow orders:
   • “23. Based on our findings on appeal as set out above, we rule that:
   1. The decision dated 24^th June 1998 of Local court case civil number 8 of 1997 is set aside.
   2. Remit this case to the Local Court for fresh hearing in the next Local Court circuit sitting.
   100. Direct that Local Court must enquire further and ensure evidences of ownership of claim is heard, particularly the purported renewed claim by the Respondent.
   4. Direct that the Local Court to conduct a survey covering the significant sites in custom that will give rise to the claim of ownership and the boundaries of Alilo land.
   5. Direct that Local court may call upon neighbouring customary land owning groups to assist with border and traditional knowledge of ownership of Alilo land.
   6. Parties to bear their own costs.
   7. Any aggrieved party is at liberty to appeal within 3 months of this judgment.”
3. The Appellants have filed an appeal against that ruling. On 20 October 2023 the Appellants filed an amended notice of appeal setting out the grounds of the appeal as:
   • “[1] The Malaita Customary Land Appeal Court (MCLAC) erred in further reverting the matter to the Local Court below in that customary evidence as to the ownership and the boundaries have already been adduced and exhausted in the previous hearings before the Chiefs and the Local Court, and that the courts have rendered their judgments or decree accordingly, in particular:
   • (i) The Customary evidence as to the ownership of Alilo land has been heard and determined by the Malaita Local Court in the Land Case No. 8/97.
   • (ii) The boundary of Alilo land has already been determined by the Malaita Local Court in 1997.
   • (iii) The issue of genealogy has already been presented and considered before both the Chiefs and Local Court in 1983 and 1997 hearings, respectively.
   • (iv) The Tambu sites within Alilo land has already been determined during land survey conducted by the Malaita Local in Land Case No. 8/1997.
   • [2] The evidence of how the land originally belong to the appellants and the issue of discovery of the land and originally exercising the rights and titles on the land for many generations have been determined before the Chiefs and the Local Court in 1983 and 1997 cases.
   • [3] The MCLAC is erred in Law when it failed to consider appeal grounds 2 to 5 in the Notice of Appeal so as to ascertain whether or not those grounds are being dismissed or upheld.
   • [4] The MCLA is erred in concluding that the previous Local Court hearing is not exhaustive even though the determination has already been made as stated in paragraph 1 above, which are all in favour of the Appellants.”
4. The appeal has been set down to be heard on five occasions this year. Those dates were 27 February 2024, 20 May 2024, 4 June 2024, 26 August 2024 and finally 1 October 2024. Orders have been made for the filing of submissions. Those orders have been varied because of the failure of the parties to comply. By the time of the hearing scheduled for 26 August 2024, the Appellants had filed submissions but none had been received from the Respondents. Time was given to the Respondent to file submissions by close of business on 10 September 2024.
5. At the hearing of the appeal on 1 October 2024 Mr Laurere appeared for the Appellants. The Respondents appeared but there was no appearance of their counsel. No submissions had been filed by their counsel. No application to allow further time for the filing of submissions had been made, no application to vacate the fixture had been filed.
6. One of the Respondents asked for the hearing to be adjourned so that their counsel could be present. That person did not know where counsel was nor why he did not attend. The Court explained that the appeal fixture had already been vacated more than once and the directions to file submissions had not been complied with. Mr Laurere on the other hand strongly submitted that the appeal should be heard. Given the history of the matter the Court determined the appeal should proceed.

Appeal grounds 1, 2 and 4

7. Mr Laurere dealt with grounds 1, 2 and 4 together. He submitted that in civil case 7 of 1983 the parties sought to prove ownership of Irobuli customary land. The Respondents in the present case claimed they owned Uala Customary Land and submitted that Irobuli land is within Uala land. The Appellants annexed to their submissions a copy of what was described as the minutes of the case. What was annexed appears to have been incomplete as each page is numbered at the top. At the foot of each page is the number of the next page. Page 34 was the last page included and it has the number 35 at the bottom which indicates that the next page was to be 35. No page 35 was included. There is not a page that contains the signatures of the Court. A reading of page 34 suggests more must follow. Finally if it was to be relied on I would expect it to be included in the Trial Book. There must have been a reason it was not included. The document must then be used with some caution. Counsel Laurere referred to the second to last paragraph on page 24 of those minutes where a witness named Daniel Sisifiu made a statement about Irobuli land. He said Uala covers the whole area but said there are subtribal lands within ‘Susa’ land. It is not clear what that means. The Appellants submit that the ownership of Alilo customary land was decided in this case.
8. Counsel for the Appellants said that the case was appealed to the MCLAC and that in the MCLAC the Appellant were determined as having the first and sole right to Irobuli land against Elofiramo. A copy of that decision has not been provided to me. Counsel submitted that as the ownership of Alilo land has been determined the principle of res judicata applies and that ruling cannot now be revisited.
9. The decision in civil case 7 of 1983 was concerned with land called Irobuli said to be part of Uala customary land. It was concerned with that part of the land that was given to the SSEC church. The issue of res judicata may well apply to the determination of ownership of Irobuli. In the judgment of CCN 7 of 1983 the Court set out on page 33 under the heading judgment the following.
   • “JUDGMENT: Court found that both parties have different genealogies as Plaintiffs David Elofiramo and George Linganafelo are heirs of Foloai of Ferawailo of Uala bush high lands, through male line. While the defendants Misiti and Batholomew Riolo (m) claim the disputed area. Irobuli heirs of Faelau (m) who first settled at Uala low lands then his relationship of mix marriages. That he came back to Uala through female linealogies.”

The lineage of the First Respondents then was found to be of the Uala bush high lands and the lineage of the Appellants claimed Irobuli through the heirs of Faelau who settled at Uala low lands.

10. The MCLAC in 2020 was concerned with the litigation of Alilo customary land. An issue is whether Alilo customary land is the same as Irobuli customary land. It maybe that that is the case. In 1983 the Local Court heard a claim about Irobuli customary land. In June 1998 the Malaita Local Court heard a claim about Alilo customary land.
11. As set out above the MCLAC heard the appeal from that Local Court decision on 6 November 2018 delivering the ruling on 9 November 2018. It is that ruling which was set aside by the High Court to be reheard by a differently constituted MCLAC.
12. The MCLAC heard the appeal. Although the appeal was heard in 2020 it must be kept in mind that it was an appeal from the decision of the Malaita Local Court dated 15 June 1998. The power to do so is set out in section 256 (2) of the Land and Titles Act. Which provides:
    • “(2) On any appeal to it under subsection (1) a customary land appeal court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just.”
13. When the MCLAC heard the appeal they sought clarity from the parties by asking questions. They said this questioning produced new information. They concluded that the enquiry by the Local Court in 1998 was inadequate because if there had been a proper enquiry there should be no fresh information coming to light. The MCLAC were also not satisfied with the quality of the survey of the boundaries. The Court said at paragraph 16:

“16. On top of it, we are not satisfied with the survey done by the Local Court. It did not clearly show where exactly it was done to show whether the whole boundary was surveyed. We can only say at this point in time that it is insufficient to use it in relation to confirm any delineation of the boundary map of Alilo land. What really needs to happen is parties must show where they say the boundary of the land in dispute is. And also show their shrines and other important evidence of the land. The survey must define those borders.”

14. The Appellants argue that the MCLAC were not entitled to make such an order as the Local Court had already determined the ownership and boundaries of Alilo. Counsel referred the Court to pages 15 and 24 of the Local Court decision in which evidence was set out. Alilo does not appear to be mentioned on page 24, although there is reference to ngali nut trees by each of the witnesses at pages 15 and 24. There is insufficient before me to conclude that the Alilo customary land is the same as Irobuli customary land.
15. The terms of section 256(2) are very broad. If the MCLAC considers that insufficient enquiring was made in 1998 to determine ownership there is nothing to prevent them determining that the case should be referred by to the Local Court for that purpose and to make proper enquiry into the boundaries.
16. This is however not an opportunity to re–argue the issue of Irobuli customary land as that appears to have been determined by the same parties or their line in 1983. I use the term, appears to have been as the decision provided was incomplete and the decision of the MCLAC which followed has not been provided.
17. To answer the appeal points then, the MCLAC did not err in determining that the case be referred back to the Malaita Local Court to determine ownership and boundaries of Alilo customary land. Whether the land is within Uala Customary Land is for the courts of custom, not me, to determine.
18. As the MCLAC heard the appeal from the Local Court, it is irrelevant what had happened in the previous MCLAC and the High Court. The appeal was heard afresh. The Court was then entitled to examine the findings of the Local Court in 1998 and make such order as the MCLAC considered just. The MCLAC clearly considered that there had been insufficient enquiry into both the ownership and the boundaries of Alilo customary land and as a result considered that the just course was to refer the case back to be heard properly in the Local Court. To find in favour of the Appellants would deny the First Respondents the opportunity to properly argue their appeal. Grounds 1, 2 and 4 are therefore dismissed.

Appeal Ground 3

19. The Appellant submitted that the Court was required to consider the remaining appeal grounds. That is plainly incorrect. Having determined that the case must be referred back to the Local Court it was not necessary to consider the remaining appeal points as the determination of those points cannot change the fact that the case is to be referred back to the Local Court. Counsel referred me to a decision of this Court Tauri’i v Kerehote [1985] SBHC 19 where former Chief Justice Wood held that when a party has been invited to raise any objections to the make up of the Customary Land Appeal Court and waived his right to object that party cannot later raise this objection after taking the chance of a decision in his favour. The central remaining appeal ground was concerned with this issue.
20. As the MCLAC decided to refer the case back to the Local Court and were entitled to do I am not required to decide whether the same principle applies to the constitution of the Local Court. For the avoidance of doubt, having determined that the case required a reference back to the Local Court the MCLAC was not called on to make a ruling on the remaining appeal grounds. Ground 3 is therefore dismissed.

Order

1. The appeal is dismissed. There being no representation for the Respondents there is no order as to costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge