Piko v Kokoro [2022] SBHC 43; HCSI-CC 595 of 2019 (7 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Piko v Kokoro
Citation:
Date of decision:	7 June 2022
Parties:	Rose Piko v John Kokoro and others, Western Customary Land Appeal Court
Date of hearing:	9 May 2022
Court file number(s):	595 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:	Western Customary Land Appeal Court
Order:	1 Appeal allowed. 2 The order of the WCLAC for parties to settle their difference, dispute and issues according to custom is squashed and the whole dispute is reverted to the WCLAC to be heard de nevo by a differently constituted WCLAC. Cost for the Appellant to be assed if not agreed.
Representation:	Mr Muaki G for the Applicant Mr To’ofilu J for the 1st Respondent/Appellant Ms Fakari F for the 2nd Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 256 (3) Local Court Act [cap 19]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 595 of 2019

BETWEEN

ROSE PIKO
(Representing the Volaikana Soa Tribe, South Choiseul)
1^st Respondent/Appellant

AND:

JOHN KOKORO AND OTHERS
(Representing the Volaikana Tribe, South Choiseul)
1^st Applicant/1^st Respondent

AND:

WESTERN CUSTOMARY LAND APPEAL COURT
2^nd Applicant /2^nd Respondent

Date of Hearing: 9 May 2022
Date of Judgment: 7 June 2022

Mr. Muaki G for the Applicant
Mr To’ofilu J for the 1^st Respondent/ Appellant
Ms Fakari F for the 2^nd Respondent

JUDGMENT

KOUHOTA J

The appellant was aggrieved by the decision of the Western Customary Land Appeal Court. She filed a notice of appeal dated 21^st October 2019, on the following grounds;

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 (a.k.a Robroy Island), South Choiseul.
2. 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 avenue.
3. The Second Respondent erred in fact and in law when it decided that the ownership of Vealaviru Customary Land (Robroy Island) had never been subjected to any past or previous court cases.
4. That the Second Respondent erred in fact and in law when it failed to consider the evidence before it that shows that the lands owned by the greater Volaikana Tribe had been sub-divided in custom and that the First Respondent own the Vaghena (Wagina) Land whilst the Appellants own the Vealaviru Customary Land (Roybroy Island).
5. That the Second Respondent erred in fact and in law when it failed to consider the issue of legitimacy of Volaikana Soa and Volaikana Lata Tribes and went on to decide on the issue of ownership of the Vealaviru Customary Land (Robroy Island).
6. The Second Respondent erred in fact and in law when it failed to consider the evidence before it regarding the genealogy that shows the separation of the Volaikana Lata and Volaikana Soa Tribes.
7. That the Second Respondent erred in fact and in law when it failed to consider the genealogy presented by the appellants to show the distinction between the Volaikana Lata and Volaikana Soa Tribes.
8. That the Second Respondent erred in fact in law when it decided that the Appellants and the First Respondent are of the same Voilakana Tribe when the First Respondents are from the Volaikana Lata Tribes and the Appellants are from the Volaikana Soa Tribes.
9. That the Second Respondent erred in fact in interpreting an extract written in the Babatana dialect read to them by the First Respondent’s witness namely Rence Zama without having a proper interpreter.
10. The Second Respondent erred in fact in interpreting an extract written in the Babatana dialect read to them by the First Respondent witness namely Rence Zama without any of the Western Customary Land Appeal Court members being from Choiseul.

Appeals from the CLAC to the High Court are provide under section 256(3) of the Land and Title Act. Section 256(3) states ‘Any person aggrieved by any order or decision of a customary land appeal court may within three months of the date of such decision, appeal therefrom to the High Court on the ground that such decision or orders is erroneous in a point of law (which expression for this purpose shall not include customary law) or on the ground of failure to comply with any procedural requirement of any written law”

Section 256(3) clearly restricts appeals from the CLAC to the High Court to errors of law or procedural requirements of a written law. Thus while the Appellant had submitted 10 points of appeal, most appeal points did not relate to any error of law or a failure to comply with procedural requirements of a written law. I will need to consider the appeal points in the chronological order they appeared in the Notice of Appeal,

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.

The second appeal point alleged the CLAC erred in law when it order that the parties settles their difference according to custom, This matter has come through the process provided under the Local Court Act, [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 the issue of ownership, the parties themselves, the Chiefs and the Local Court have already failed to settled the issue hence the issue was brought to the CLAC to resolve. As the CLAC cannot just shy away from determining 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 an error of law hence appeal point number 2 is upheld.

Appeal points 3- 8 are related and can conveniently be dealt with together. Even there was evidence before the CLAC as alleged by the appellant. It is difficult for the appellant to prove that the CLAC did not considered such evidence because what weight the CLAC places on the evidence and whether they accept the evidence is matter within the jurisdiction of the CLAC thus it is not an error of law. On that basis appeal points 3-8 must be dismissed.

Appeal point’s numbers 9 and 10 relate to the same issue and can be disposed of together. While the appellant alleged that the CLAC erred in law in accepting the evidence of Mr Zama without translation of the evidence made in Babatana I assume to Pidgin or English the appellant did not specify what law or procedure requirement of a written law required that such evidence must be translated into the language of the Court which is English and Pidgin. Translation of evidence may be a matter of practice but I doubt it is a requirement of a law or procedure requirement of any written law. I consider there is no merit in appeal points 9 and 10 hence they must be dismissed.

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 whole dispute was not determine. In the circumstances the Court will make the following orders.

Orders

1. Appeal allowed.
2. The order of the WCLAC for parties to settle their difference, dispute and issues according to custom is squashed and the whole dispute is reverted to the WCLAC to be heard de nevo by a differently constituted WCLAC. Cost for the Appellant to be assed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge