Kokoro v Piko [2023] SBCA 4; SICOA-CAC 22 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Kokoro v Piko
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal From Judgment of The High Court of Solomon Islands (Kouhota, J)
Court File Number(s):	22 of 2022
Parties:	Chief John Kokoro v Rose Piko
Hearing date(s):	25 April 2023
Place of delivery:
Judge(s):	Goldsbrough, President Palmer, CJ Hansen, JA
Representation:	Jack To’ofilu for the Appellant Lazarus Kwaiga for the Respondent
Catchwords:
Words and phrases:	Error of Law, Determination of Question of Ownership in Custom by the Customary Land Appeal Court
Legislation cited:	Local Court Act [cap 19]
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-7

Judgment of the Court

1. This is an appeal by Chief John Kokoro representing himself and the Volaikana tribe (“the Appellant”) against the orders of the High Court dated 7^th June 2022. Those orders were made after a hearing when the present Respondents brought an appeal against a decision of the Western Customary Land Appeal Court. In that matter the orders presently appealed were:
   1. Appeal allowed.
   2. The order of the WCLAC for parties to settle their difference, dispute and issues according to custom is squashed (sic) and the whole dispute is reverted to the WCLAC to be heard de novo by a differently constituted WCLAC. Cost for the Appellant to be assessed if not agreed.

Brief background.

2. The parties to this case claim competing rights of ownership over Vealaviru customary land also known as Rob Roy Island (“Rob Roy Island”).
3. The dispute first went to the Chiefs hearing as required by section 12 of the Local Courts Act. The matter could not be settled before the Chiefs and so the matter was taken to the Local Court for determination.
4. Rose Piko on behalf of her Volaikana Soa tribe claims ownership over the said Island pursuant to their ancestor Ratovena. John Kokoro and his group on the other hand disputes her groups’ claim of ownership over the island. The issue before the Local Court accordingly for determination was ownership of Rob Roy Island.
5. The Local Court determined as follows:
   • “1. The Babatana Council of Chiefs’ decision is dismissed.
   • 2. That Robroy or Vealaiviuru Island is a awarded to Ratovena’s descendant of Volaikana Soa as represented by Rosie Piko and they shall have right and control over the land.
   • 3. That the descendant of Sogavena and Paravena of Volaikana Lata shall have their rights on Vahgina and other customary lands owned by their (Sogavena and Paravena) fore fathers.
   • 4. No further order as to cost.”
6. This decision was then appealed to the Customary Land Appeal (Western) (“WCLAC”) by John Kokoro and his group. A total of twenty four (24) grounds were raised on appeal.
7. In its decision the WCLAC made inter alia, the following orders:
   • “1. Appeal is allowed.
   • 2. Set-aside or quash the Choiseul Local Court decision dated, 13^th of
   • September, 2018.
   • We find that both Appellant’s and Respondents are all descendants of SANAKALE (M), hence, all are people of Volaikana tribe, owner of Veleaviru customary land (Robroy Island) under the reigning Chief John Kokoro.
   • Both parties shall settle their differences, disputes and issues according to their own custom and at the rightful avenue.”
8. Those orders were then appealed to the High Court by Rose Piko and her group. She raised eight grounds of appeal before the High Court.
9. Ground 1 of the Appeal to the High Court, which is relevant to this Appeal reads: “1.That the Second Respondent erred in fact and in law when it decided that all the people of Volaikana tribe own the Vealaviru customary land (Robroy Island).”
10. That ground of appeal was one of the grounds^[1] dismissed in the High Court and there is no appeal brought against that dismissal in this Court. The position is therefore that the WCLAC decision on ownership remains untouched. We quote the judgment of the Judge at page 2, paragraph 7: “I consider appeal point number 1 is not concern with an error of law or procedural requirement of a written law rather it is an issue of fact not subject to appeal from CLAC to this Court and must be dismissed.”
11. With ownership determined, albeit not to the satisfaction of the present Respondent, what remains in issue must be something less than ownership.
12. We note that the only ground allowed by the Judge was ground 2.
13. Ground 2 of the Appeal in the High Court reads:
    • “That the Respondent erred in fact and in law when it decided that the Appellant and the First Respondent are to settle their difference, dispute and issues according to their own custom and at the rightful venue.”
14. In his decision on this appeal ground the learned judge said and we quote:
    • “The second appeal point alleged the CLAC erred in law when it order that the parties settles their differences according to custom. This matter has come through the process provided under the Local Court [Cap. 19] but was not settled by the Chiefs or the Local Court so it went up to the CLAC. In view of this the WCLAC is required to determine and settled (sic) the issue of ownership, the parties themselves, the Chiefs and the Local Court have already failed to settled (sic) the issue hence the issue was brought to the CLAC to resolve. As the CLAC cannot just shy away from the determining of the issues and order the parties to resolve the issue themselves. When a matter is brought to the CLAC, automatically the CLAC should know that the matter has already been before the Chiefs and the Local Court therefore it is obliged to determine issue. For the CLAC to order that the parties to resolve the issues in dispute themselves is an error of law as the CLAC cannot just shy away from determining the issues and order the parties to resolve the issue themselves. The WCLAC order is in error of law hence the appeal point number 2 is upheld.”
    • His Lordship continued at page 3, last paragraph: “Although the Appellant succeed only on a single point of appeal, the point is the core issue in the dispute which is the ownership of Vealaviru (Rob Roy Island). The second Respondent failure to determine the issue essentially means that the whole dispute was not determine.”
15. In his appeal, two grounds are relied on by John Kokoro.
    • “1. The judge erred in law and fact when holding that:
    • “Although the Appellant succeed only on a single point of appeal, the point is the core issue in the dispute which is the ownership of Vealaviru (Rob Roy Island). The second Respondent failure to determine the issue essentially means that the whole dispute was not determine.”

on the basis that;

1. the Western Customary Land Appeal Court (WCLAC) does not fail but already determined the issue of ownership over Vealaviru Customary land (Rob Roy Island); and
2. the WCLAC had found that the Appellants and Respondents were all descendants of Sanakale and both owned the Vealaviru customary land (Rob Roy Island) under reigning Chief John Kokoro.

2. The judge erred in law and fact when quashing the order of the WCLAC for parties to settle their differences, dispute and issues according to custom, on the basis that:
(iii) the Appellants and the Respondents were all descendants of Sanakale and owners of the Vealaviru (Rob Roy Island). Hence, they ought to settle their differences or disputes and issues according to custom; and
(iv) the WCLAC when making the order for parties to settle their differences, dispute and issues according to custom, does not refer to the issue of ownership but refers the issues or grievances which have arise (sic) between the Appellants and Respondents from their dispute over the Vealaviru customary land (Rob Roy Island).”

Discussion and Decision.

16. We are satisfied having heard counsel that this appeal should be allowed. We are satisfied the learned judge erred in law and fact when he held that “The second Respondent failure to determine the issue essentially means that the whole dispute was not determine.” As noted in paragraphs 9, 10 and 11 of this judgment, ground 1 of the Appeal in the High Court expressly addressed the issue of ownership of Rob Roy Island in favour of the Volaikana tribe. In dismissing that ground 1 and allowing only ground 2, we form the concluded view that the matters referred to in ground 2 to be settled, being “the difference, dispute and issues according to their own custom and at the rightful venue” must refer to matters other than ownership.
17. When the learned judge therefore said at page 3, last paragraph of his judgment, that the core issue in the dispute being, ownership of Rob Roy Island was not determined, to be wrong in law and fact.
18. We are satisfied accordingly this appeal should be allowed, the orders of the Court below quashed with costs in favour of the Appellant.

Goldsbrough (P)
Palmer (CJ)
Member
Hansen (JA)
Member

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^[1] Grounds 3-8 were also dismissed by the Judge in the High Court.