Rupakana v Vozoto [2016] SBHC 215; HCSI-CC 35 of 2016 (1 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

GRAHAM RUPAKANA
Claimant
(Representing the Borovai tribe of Choiseul, Choiseul Province)

AND:

JACOB VOZOTO, KELVIN LUBARA, JOHN NIQE,

NELSON KUTI PENROSE PAREPARE, MESACKNGODORO,

KIKO PITABOEAND FRED VOZOTO
1^st Defendant

THE PRESIDENT OF BATAVA COUNCIL OF CHIEFS
2^nd Defendant

Date of Hearing: 24 November 2016
Date of Judgment: 1 December 2016

Ms. M. Bird for claimant
Mrs. K. Ziru for 1^st defendant
Mr. J. S. Pitabelama for 2^nd defendant

Claim for declaratory orders in relation to a Council of Chiefs Decision.

Brown J:

This claim for declaratory orders relates to decisions of the Babatana Council of Chiefs given on the 23 October 2002 (1^st decision) and 27 December 2005 (2^nd decision).
A further declaration is sought that the issue of leadership and ownership over Borovai customary land is res judicata between the claimant and the 1^st defendants.

Declaratory orders are provided for by Chapter 15, 13 Judicial Review of Executive or Legislative Action in the Rules of Court and at R.15.3.7 provides;-
“15.3.7 – A claim for judicial review must name as defendant;

1. For declaration or other relief in relation to an Act or subsidiary legislation, the Attorney General and
2. For an order that a person do or not do something, the person, and

100. For an order about a decision, the person who made or should have made the decision.”
     

In this case the declaration sought relates to a decision, although the Rules provide for this court to make an “order” rather than a “declaration” since the claim goes rather to facts found by the Babatana Council of Chiefs, not to relief claimed in relation to an Act or subsidiary legislation.

For questions relating to custom are not questions for the High Court and consequently this court cannot entertain a right to review a decision of the Council of Chiefs. Just as a Local Court or a Customary Land Appeal Court or a Customary Land Appeal Court has and the High Court, has not, jurisdiction over questions of disputed ownership of customary land^[1], the Local Court has jurisdiction when a person aggrieved by the decision of the Chiefs, seeks by unaccepted settlement, to have such Chiefs decision reviewed by the Local Court.^[2] Only then, on a question of law, may a person seek review of the Local Court decision, for this court may review inferior court orders.

The unfortunate circumstance here is that the successful party before the Chiefs in 2005 [the 2^nd Chiefs decision] appears to have sought confirmatory orders by the Local Court which gave a decision. The Laura Local Court, by ruling in proceedings between Mesack Ngodoro and John Nige, plaintiffs [representing those successful before the Council of Chiefs in 2005] and Graham Rupakana defendant by ruling said on the 17 July 2015:-

“This matters is a referral from the Batava Council of Chiefs. During Preliminary, issues raised by the plaintiff that all means of settling the dispute has been exhausted therefore he lodged an appeal to the local court. Since the defendant neglects the decision made by the Batava council of Chiefs, this court also finds out that it is not procedural as the winning party to lodge an appeal to the local court. It is a statutory function that the aggrieve party shall lodged an appeal to the local court. However it did not happen in this case. Thus the defendant fail to do so by lodging an appeal to the local court. And it is not procedural for the winning party to lodge an appeal. Therefore this appeal is dismissed, and the decision of the Batava council of chiefs is up held.”

Since it is recorded that; “Presley on behalf of the Chief of Borovai, I would like to land everybody in this court. Question is base on Batava Council of Chief, our Babatana Council of chiefs decision is still stand. Thank you”, the ruling dismissing the appeal (for the plaintiffs were successful before the Batava Council of Chiefs – the 2^nd decision) rather is silent on the defendant’s [through their spokesperson, Presley] apparent reliance on the earlier 1^st decision given in Graham Rupakana’s favour.

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 2^nd 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”^[3]

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.

The defendants shall have their costs.

__________________
BROWN J

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^[1] Simbe v East Choiseul Area Council (1999) SBCA 9, CA-CAC 8 of 1997
^[2] Local Courts Act –S.12
^[3] S.17-Limitation Act.