1985-1986 SILR 255

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 1 of 1986

SIOPE

v

MALAITA CUSTOMARY LAND APPEAL COURT

High Court of Solomon Islands
(Ward C.J.)
Civil Case No.1 of 1986

31 October 1986
Judgment 4 November 1986

Customary Land Appeal Court - failure to attend for good reasons - unable to state case - decided on inadequate evidence

Facts:

The applicant applied for an order of certiorari to quash a decision of the Malaita Customary Land Appeal Court on the ground that, although she was unable to attend the hearing before that Court for good reason, it proceeded to hear her appeal in her absence. As a result, she was unable to put her case and the Court decided the appeal on an inadequate consideration of the evidence. The applicant was unable to attend because her husband had died two months earlier and in Polynesian custom when a man dies his wife must retire from society and mourn for such time as the man’s son believes is appropriate e.g. in this case for five months. There was no one on the Malaita CLAC from a Polynesian culture who would have been aware of this custom. When she failed to attend, the CLAC found that she had deliberately chosen not to and proceeded to find for the respondent based on the Local Court record and the applicant’s submissions.

Held:

1. On the information that the CLAC had, that the applicant had deliberately chosen not to attend and had failed to seek an adjournment, it was entitled to proceed in her absence.

2. The CLAC failed to consider that in the Local Court the applicant, who was the defendant therein, was called first and thus had to justify her position before a case had been made out by the plaintiff who actually bore the burden of proof. That alone should have been sufficient for the CLAC to send the case back to the Local Court.

Accordingly, the decision of the CLAC was quashed and the case was remitted to the Local Court for a trial de novo in which the Court must hear the plaintiff’s case before that of the defendant.

3. Obiter - It was hoped that the Malaita CLAC would soon have a member from Ontong Java and that in cases like this where Ontong Java custom is so different from that of Malaita the CLAC would sit in Ontong Java.

No cases considered

Kenneth Brown for the Applicant
E. Saeasa spokesman and translator for Serah

Ward CJ: This is an application for an order of certiorari to quash the decision of the Malaita CLAC in case number P2/84.

The applicant, who was the appellant at the CLAC, has applied to this court on the ground that, although she was unable to attend the hearing of the CLAC for good reason, they proceeded to hear the appeal in her absence. As a result, she was unable to put her case and the court decided the appeal on an inadequate consideration of the evidence.

The case relates to a garden known as Kehue land in Pelau, Ontong Java, part of which the applicant has been cultivating for some years.

This application stems partly from problems caused by the relative inaccessibility of Ontong Java and, in fact, similar problems would appear to have beset the case from the early stages. It is difficult to see exactly how the matter progressed because the copies of correspondence on the CLAC file are incomplete and haphazard. The details are not relevant to this application save that the original grounds of appeal are nowhere in the file despite a letter from the clerk acknowledging receipt, there is a later, handwritten note of seven grounds of appeal clearly received by the court but never thereafter referred to and the six grounds the CLAC actually considered only appear as an unsigned, typed document attached to the record of the local court.

A similar lack of documentation applies to the court sitting itself. After an initial problem over payment of the court charges caused by postal delays from Ontong Java and exacerbated by unnecessarily abrasive letters from the, then, Principal Magistrate, the CLAC clearly sat on or before 13th January 1985 but could not hear the case because the M.V. Belama did not visit Ontong Java as scheduled. The case was heard on 8th July and, on the 11th July, a letter was sent to the appellant informing her of the result.

The events in Ontong Java at that time are set out in the affidavit in support of this application. Para 3 states:-

“My husband had died in May 1985, two months before the hearing and I was still in mourning. In my culture when a man dies his family and his wife retire from society and mourn in isolation until such time as the man’s son believes it is appropriate. We spend the day at the grave side and return to the house at night. During the period of mourning very little communication with people outside the immediate family is allowed. We were in mourning for five months after the death of my husband and it is for this reason that I could not attend the CLAC. There was no member of the CLAC from a Polynesian culture who would be aware of this tradition.”

That account of the custom in Ontong Java was accepted at this court by the respondents.

The applicant further tells this court that she did send a message with the clerk of the Local Court to say she could not attend and seeking an adjournment. It is apparent that some form of message was conveyed because the court record refers to her bereavement although it is right that the court also refers to a failure to seek an adjournment.

The court proceeded to hear the respondent’s case in an extremely short form if the record is accurate and then gave judgment for the respondent.

In that judgment, the clerk/magistrate deals with the failure to attend in this way:-

“This morning the Appellant failed to attend the hearing. We are satisfied that she had received notice that her appeal would be heard together with the other appeals from decisions of the Local Court’s sitting at Pelau and Luaniua. A service message informing people about the hearings was broadcast on two occasions. We are sure that she knew she should be here and has deliberately chosen not to attend. We are told that her husband died and she had raised this as her reason for not accompanying her fellows when they came to Auki from Ontong Java on the M.V. Belama at the end of June. However we now learn that her husband died some two months ago and she herself has not seen fit to send us a message or communicate with us in any way. Such lack of consideration for the court and the other side is inexcusable and as the Respondent asked us to hear and determine this appeal in the Appellant’s absence we have decided to do so.”

It is not clear on what basis the conclusion she had deliberately chosen not to attend was made but the court was entitled to proceed in her absence on the information they had. If that had been the sole ground for this application it would fail but the applicant further urges that, as a result, the decision was made on an inadequate consideration of the evidence.

The remainder of the judgment is short:

“It is not for the respondent to satisfy us that the Local Court’s decision was right. In other words unless the Appellant can show that on the balance of probabilities the Local Court was in error, this court will not interfere.

We have made a careful study of the Local Court record and considered the Appellant’s submissions. We note that she called two witnesses to testify on her behalf. Her first witness, Mr Apea said he did not know who owned the land and her other witness, Rebecca Mamahua testified that the Respondent’s mother entrusted her with the care of the land until the Respondent had grown up when she then should hand it over to the Respondent.

Having studied the rest of the evidence given in the Local Court and considered the points of appeal submitted by the Appellant we have no hesitation in saying this appeal has no merit. We are satisfied the Local Court’s decision was correct.”

Despite the brevity of this judgment it manages to give quite substantial support to the applicant’s complaint.

The court’s concern with the burden in the appeal did not extend to their consideration of the Local Court where Serah Apola was the plaintiff and, therefore, carried the burden of proof. There the defendant was called first and was thus in the position of having to justify her position before a case had been made out.

That should have been sufficient for the CLAC to send the case back to the Local Court. However the matter goes further because, despite the assertion that they made a careful study of the record of the Local Court, the CLAC summarises that evidence incorrectly and incompletely.

It is correct that Apea did not know who owned the land but he also testified to the fact that Lois Siope was the person who cleared the land when it was covered in bush and had cultivated it since. Similarly, it is also correct that Rebecca told the court Serah’s mother had entrusted her with the land until Serah grew up. The vital part of her evidence which the CLAC failed to remark was that she specifically excluded the eastern part of the land and even a cursory consideration of the Local Court record shows that appellant had been cultivating the eastern end.

In all the circumstances I feel there is considerable substance in the applicant’s complaint. She has been denied the right to state her case and contradict statements prejudicial to it. I remove the judgment of the CLAC into this Court and quash it.

The case is remitted to the Local Court to be heard de novo. That court must ensure they hear the plaintiff’s case before that of the defendant.

I hope that the Malaita CLAC will soon have a member from Ontong Java. Whilst I appreciate the difficulties involved, in a case like this where the customs and culture of Ontong Java are so different from Malaita, the CLAC should normally try and sit in Ontong Java when considering cases from those islands.