Rupakana v Vozoto [2017] SBCA 8; SICOA-CAC 1 of 2017 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Brown J)
COURT FILE NUMBER:	Civil Appeal Case No. 1 of 2017 (On Appeal from High Court Civil Case No. 35 of 2016)
DATE OF HEARING:	6 October 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	GRAHAM RUPAKANA (Rep the Barovai tribe of Choiseul, Choiseul Province) AND JACOB VOZOTO, KELVIN LUBARA, JOHN NIQE, NELSON KUTI, PENROSE PAREPARE, MESACK NGODORO, KIKO PITABOE, FRED VOZOTO AND THE PRESIDENT OF BATAVA COUNCIL OF CHIEFS
ADVOCATES: APPELLANT: RESPONDENT: 1ST 2ND	Ms. M. Bird Mrs. K. Ziru Mr. J. Pitabelama
KEY WORDS:
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 5

JUDGMENT OF THE COURT

1. On 1 December 2016, Brown PJ dismissed the appellant’s claim for Judicial Review. The appeal put forward no fewer than eight grounds of appeal.

The facts

2. On 23 October 2002, the Babatana Council of Chiefs handed down a decision in a dispute between the appellant and one Willie Pitakia. It is to be noted that Mr Pitakia was not present.
3. The decision of the Babatana Council of Chiefs states:

Rupakana has convinced the inquiry that the alleged adultery committed on Vore, the ancestor of Willie, did not affect the straight line male descendants of Vilaka of Borovai tribe as he came down from the second wife of Denge called Vavaso. Thus Rupakana is confirmed a male descendant of the Vilaka of Borovai tribe, and therefore fit to head the Borovai tribe including its land and people accordingly.

4. None of the first respondents were parties to that hearing before the Babatana Council of Chiefs. In 2005 there was a customary inquiry in front of a different Chiefs Council, the Batava Council of Chiefs. The first respondents were the plaintiffs in that hearing. The appellant was the defendant. In that hearing the first respondents claimed that they are the true/rightful owners of Borovai land, and that Mr Graham Rupakana’s ancestors had caused a customary infringement (vaekodoke) on Borovai land.
5. It is noted in the 2005 decision that the appellant was not present, but his spokesman or agent, Mr Presily Zoleveke was. However, Mr Zoleveke presented his written submissions to the Chiefs Council and walked out of the hearing. The Council state in their decision that they considered the paper presented by Mr Zoleveke.
6. The Batava Council of Chiefs’ decision reads:

Therefore, the Council’s decision says, Dene is vaekodoke (expelled) from Borovai tribe, and so Mr Graham Rupakana is not qualified to head the Borovai tribe. This is Lauru customary.

7. Despite being successful, for unknown reasons, the first respondents lodged an appeal with the Local Court. The appeal was filed in that Court in December 2006. For some reason, the matter was not dealt with until 17 July 2015. Mr Presley Zoleveke was again present on behalf of Mr Rupakana, and stated that he considered the Babatana Council of Chiefs’ decision still stood. However, the local Court orally ruled on that day that “it is not procedural for the winning party to lodge an appeal”, and they dismissed the appeal but upheld the Batava Council of Chiefs’ decision. They also noted that the appellant took no steps to appeal the decision of the Batava Council of Chiefs.^[1]
8. The appellant, being aggrieved, did not lodge an appeal in the Local Court, but commenced judicial review proceedings. Ms Bird acknowledged in submissions that the appellant was seeking to judicially review a decision of the Batava Council of Chiefs that is now over 12 years old.

Appeal

9. Eight grounds of appeal are put forward, as follows:
   
   1. That the learned Judge had erred in his interpretation of s 239 of the Land and Titles Act.
   2. The learned Judge had erred in holding that where a subsequent Council of Chiefs varies, alters or changes previous answers to questions concerning tribal chiefs or representational status, that variation, alteration or change is good unless affected by a subsequent local Court decision.
   3. The learned Judge had further erred when he had stated that no criticism may be directed at the matter in which a Council of Chiefs addresses issues before it for determination.
   4. The learned Judge had erred when he failed to consider that a previous Babatana Chiefs decision dated 29 October 2002 had already determined that the appellant was fit to head the Borovai tribe together with its people and land.
   5. The subsequent decision of the Batava Council of Chiefs dated 29 September 2005 had reversed the first Chiefs decision and held that the appellant was not qualified to head the Borovai tribe.
   6. Section 239 of the Land and Titles Act does not expressly state that a subsequent chiefs decision can vary, alter or change another Chiefs decision.
   7. Section 12 of the Local Courts Act, has expressly stated that an aggrieved person against a decision of a Chiefs Council shall refer the dispute to the Local Court.
   8. The first respondents were the aggrieved parties against the first Chiefs decision dated 29 October 2002, but they had failed to refer the said dispute to the local court pursuant to s 12 of the Local Courts Act, and erroneously referred the same dispute to another Chiefs Council.

The High Court judgment

10. It is enough to set out the following passage from the decision of Brown PJ in his ruling of 1 December 2016:

These proceedings relate to declaratory orders sought in relation to the various Chief’s decisions. A cause of action shall have been deemed to have accrued in favour of the claimant upon the date of the 2nd chiefs’ determination, in 2005. It is immaterial that the other party to that determination appears to have gone to the Local Court for no proceedings required by S.12 by this claimant were taken as an “aggrieved person”.

By section 5 of the Limitation Act, no action shall be brought after six years from the date on which the cause of action accrued. The cause of action must be deemed to have accrued in 2005 in favour of this claimant as an “aggrieved person”. No steps were then taken by him.

There is, then, no right of review of the claimants’ adverse decision by the 2^nd chiefs’ determination.

For while S. 239 of the Land and Title Act is concerned with customary land, it rather encapsulates the underlying principle requiring the use of customary tribunals. The section speaks of determination according to “current customary usage” and where a subsequent Council of Chiefs varies, alters or changes previous answers to questions concerning tribal chiefs or representational status, that variation alteration or change is good unless affected by a subsequent Local Court decision.

No criticism may be directed at the manner in which a Council of Chiefs addresses issues before it for determination.

Nevertheless these proceedings fail for I find the claimant has no arguable case. The claim then is struck out pursuant to R 15.3.20.

Submissions

11. Despite the large number of appeal points, Ms Bird’s submission was essentially that the Batava Council of Chiefs was functus officio because the issue before them had already been determined by the earlier 2002 determination of the Babatana Council of Chiefs.
12. She submitted that the effect of s 239 of the Land and Titles Act meant that a later Council of Chiefs had no power to vary, alter or change previous answers to questions an earlier Council of Chiefs had decided in relation to customary land.
13. She did accept in the course of submissions that matters of custom were fluid and dynamic, and circumstances of custom and leadership may change over time.
14. When questioned why her client did not pursue their rights in 2005, she suggested they were unaware of the Second Respondent’s decision. However, as already noted, Mr Presley Zoleveke, the appellant’s agent, was present at the beginning of the hearing, and walked out of it. That was his choice on behalf of the appellant. In those circumstances the appellant cannot now rely on the fact that he was unaware of the decision. In relation to the ruling of the local Court on 17 July 2015 and a possible appeal to the WLAC, she said her client was unable to obtain a copy of the decision and there was no power to extend time to appeal that decision. However, as we have already noted, Mr Presley Zoleveke appeared on behalf of the appellant at that hearing and was present when the oral decision was given. Further, in the sworn statement of John Niqe dated 8 April 2016 at page 31 of the appeal book, he stated:
    10. That on or about 27 July 2015 I went to the local Court at Gizo, Western Province. I approached the local Court clerk, Cap Lapo (Lapo) at the local court office at Gizo, Western Province, who reliably informed me that the claimant had contacted the office and enquired about the CLC decision, to which Lapo responded that the decision was available and ready but that it could not be sent by mail and must be collected personally from the Gizo office. I also personally saw the claimant’s copy of the 2015 CLC decision at the Gizo office. The claimant and party had the opportunity to obtain the said decision soon after it was delivered, but they either neglected or failed to obtain the said decision.
15. After that, it is also clear that the appellant actively attempted to facilitate an application for timber rights over Borovai land, and on 20 January 2016 Mr Niqe objected to this. Interestingly, the Judicial Review proceedings had been issued just a couple of days beforehand.
16. We do not accept the appellant, through his agent, was unaware of the Local Court decision.
17. Counsel for the first and second respondents stressed that the 2002 decision was between different parties and considered different matters from the 2005 decision. They said in those circumstances the Batava Council of Chiefs was not functus officio.
18. Both counsel, for the first and second respondents, also said that s 239 referred to above was not a bar to a local Council of Chiefs varying or changing earlier decisions to reflect the accepted dynamics of leadership and custom.

Decision

19. We do not feel the need to address the scatter gun appeal points raised in the Notice of Appeal. A consideration of the two Council of Chiefs’ decisions gives a far more direct answer to what is raised in this appeal.
20. The first respondents were not a party to the 2002 decision. Reading the two Councils of Chiefs’ decisions, they clearly address different issues, between different parties and, therefore, no question of functus officio arises. The appellant, through his agent, Presley Zoleveke, participated in the 2005 hearing by attending, making a submission and lodging a written submission. It was the appellant’s representative that chose not to attend the rest of the hearing. The same representative of the appellant was present at the Lauru Local Court and heard its decision of 17 July 2015. The proper remedy for the appellant in 2005 was to appeal to the Local Court. The same applies to the decision of 2015, of the Lauru Local Court, which affirmed the 2005 decision. Clearly the appellant’s agent was aware of it and an appeal to the WLAC was the proper course. We are satisfied the appellant was aware of the decision and could have appealed to the WLAC timeously. Again, he chose not to pursue the proper course.
21. This is perhaps not altogether surprising given that Ms Bird advised us, in response to questions, that her submissions were filed well outside the timetable because she could not obtain instructions from her client.
22. The reality is that the appellant is seeking to judicially review a decision 11 and a half years out of time. There is no satisfactory explanation of that delay. In any event, in the meantime, as Brown PJ noted, the limitation period had expired. Given the time to file Judicial Review proceedings is 6 months Brown J reached an inevitable conclusion in refusing to extend time and in dismissing the claim.
23. As noted earlier, the Court accepts the fluid and dynamic nature of leadership and custom. However, in the context of this appeal it is unnecessary to determine whether or not s239 allows a later Council of Chiefs to vary or change an earlier decision. That question will arise when, and if, the same parties to a dispute, with the same subject matter are present as parties before two different Council of Chiefs.
24. As well, it is unnecessary for us in the context of this case to rule on the second respondents’ submission that decisions of Councils of Chiefs are not subject to Judicial Review. However, we would say such a proposition is doubtful.
25. Accordingly, the appeal is dismissed and there will be costs to the first and second respondents on the usual basis.
    

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Goldsbrough P

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Ward JA

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Hansen JA

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^[1] Ngodoro & Nige v Rupakana Lauru Local Court Land Case 06/2006 decision of 17 July 2015. (Appeal Book pages 20 and 21).