Rogemana v Pige [2025] SBHC 32; HCSI-CC 72 of 2017 (25 February 2025)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Rogemana v Pige
Citation:
Date of decision:	25 February 2025
Parties:	Rev. Edwin Rogemana v Ben Pige and Josiah Sagau, Isabel Customary Land Appeal Court
Date of hearing:	2 February 2025
Court file number(s):	72 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1. Appeal is allowed. 2. The decision of the Second Respondent in ICLAC No. 6 of 1999 is quashed. 3. The appeal and the Amended Notice of Appeal filed on 22nd February 2016 are valid and reinstated accordingly for further hearing of the dispute between the Appellant and the First Respondents. 4. The matter is remitted to a differently constituted Isabel Customary Land Appeal Court to hear the dispute between the Appellant and the First Respondents afresh. 5. Costs of this hearing shall be paid by the First and Second Respondents on standard basis.
Representation:	Mr I R Kako for the Appellant Mr P Teddy for the First Respondent Mr E Waiwaki for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133], S 256 (3), S 256 (1), S 231 B (1), 231B (3)
Cases cited:	Tudubatu v Attorney General [2025] SBHC 7, Kaupoi v Principal Magistrate (Malaita) [1985] SBHC 23, Seselono v Kikiolo [1982] SBHC 9, Nano v Riringi; Katovai v Lumukana [1984] SBHC 16; [1984] SILR 9, Marina v Kinisita [1985] SBHC 15, Patatoa v Talauai [1983] SBHC 13; [1983] SILR 112,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 72 of 2017

BETWEEN

REV EDWIN ROGEMANA
Appellant

AND:

BEN PIGE AND JOSIAH SAGAU
First Respondent

AND

ISABEL CUSTOMARY LAND APPEAL COURT
(Represented by Attorney General’s Chambers)
Second Respondent

Date of Hearing: 2 February 2025
Date of Ruling: 25 February 2025

Mr I R Kako for the Appellant
Mr P Teddy for the First Respondent
Mr E Waiwaki for the Second Respondent

RULING

AULANGA, PJ:

1. This is an appeal pursuant to section 256 (3) of the Land and Titles Act (Cap. 133) (“LTA”) against the decision of the Second Respondent delivered on 25^th November 2016. In its decision, the Second Respondent dismissed the appeal filed by the Appellant against the decision of the Isabel Local Court on the basis that the appeal was filed out of time as required under section 256 (1) of the LTA. The Appellant filed the appeal on 24^th February 2017. It contained 5 grounds of appeal. By leave of court, it was amended on 13^th May 2024 to include the Second Respondent to be a party to the proceeding. On 8^th October 2024 following further review of the appeal grounds, the Appellant abandoned appeal grounds 2, 3, 4 and 5(iv), and preferred to maintain grounds 1 (i) - (vi) and 5 (i) - (iii). The remaining grounds, the subject of this hearing, are particularised as follows:
   • “1. The Second Respondent had erred in law in dismissing and striking out the Appellant’s appeal on the basis that it was filed outside of the three months limitation period in that: -
     1. the Appellant was not invited nor was it informed by the Second Respondent about the issue of late filing of the appeal during the hearing of the said appeal;
     2. the Appellant’s appeal was actually filed by the Appellant in about 31^st August 1999, a few days after the receipt of the Isabel Local Court’s published judgment dated 23^rd June 1999. The filing fee of $400 for the said appeal was receipted by the Central Magistrate Court in a General Treasury Receipt No. B727602 dated 31/08/1999;
     3. the Second Respondent had assumed that the date 26/10/1999, inscribed in the Appellant’s notice of appeal was the date of filing of the said appeal without giving the Appellant the opportunity to be heard on that issue;
     4. the copy of the Appellant’s notice of appeal was the First Respondent’s copy of the said document. The original court file was lost and all documents in the court’s file before the Second Respondent were copies of documents from the respective parties in the case and the court’s file was reconstructed from those copies;
     5. in view of sub-paragraph (iv) above, the inscription of the date 26/10/1999 could have been the date that the First Respondent had received the Appellant’s notice of appeal; and
     6. it should further be noted that there was no official stamp on the date that was inscribed on the said document.
   • 5. The Second Respondent was not impartial when hearing the Appellant’s appeal in that: -
     1. the President of the Second Respondent Chief Ambrose Bugotu had prior to the hearing in November 2016, and upon request from the First Respondents, had advised the Appellant’s party in a letter to vacate Loalona customary land because the First Respondents had won the land dispute case against them. In that regard he had prior involvement in the matter before the actual hearing in November 2016;
     2. Justice Culwick Vahia, a member of the Second Respondent is the son of late Culvick M Vahia who was the spokesman for the First Respondents’ Thogokama tribe before the Isabel Local Court Case No. 1 of 1998. CLAC No. 6 of 1999 is an appeal from the Land Case No. 1 of 1988.”
2. In the reliefs, the Appellant seeks that the appeal be allowed and the matter to be remitted and reconsidered by a differently constituted Isabel Customary Land Appeal Court, with costs.
3. During the course of the hearing and upon my perusal of the appeal, it appears that the issue of whether the Second Respondent had erred in law in dismissing the matter for want of filing the appeal out of time stood out to be the decisive issue for this matter. The Second Respondent’s decision in the court below in the dismissal of the matter was confined to the purported late filing of the appeal and not on the substance or the customary findings made by the Isabel Local Court.

Brief facts

4. Briefly, the Appellant and the First Respondents are parties to a dispute over Loalona customary land in Isabel. The dispute was first adjudicated by the Isabel Local Court (“ILC”) in ILC No. 1 of 1998 between Culwick M Vahia v Hugo Diamana. The ILC in its decision dated 23^rd June 1999 found in favour of Culwick M Vahia. Worthy of noting is that Culwick M Vahia was the father of Culwick Vahia, a member of the Second Respondent who presided and a signatory to the decision the subject of this appeal.
5. On 31^st August 1999, Edwin Rogemana, a member of the present Appellant came to Honiara and paid $400 as an appeal fee against the ILC decision. The payment was manually recorded in the CLAC Register Book in Honiara with receipt number B.727602. The court official who recorded the payment had left the Honiara CLAC office many years ago and attempts to recognise the handwriting and the identity of that officer have remained unsuccessful due to the considerable passing of time.
6. A search was undertaken in the Honiara CLAC Register Book. The current CLAC officer Lorraine Maure by evidence has confirmed the registration of the fee paid by the Appellant on 31^st August 1999 and that it should be recorded as an appeal fee and not “court fine” as recorded by the former officer. Officer Maure then explained that there was an excess of $200 being paid by the Appellant for the fee as the appeal fee in CLAC cases should only be $200. This explanation was not contradicted by the First Respondents.
7. On 26^th October 1999, the Appellant filed his notice of appeal against the ILC decision for hearing before the Second Respondent. It is not disputed that at the hearing, the original Second Respondent’s file was lost and that all the documents to the proceeding were copies requested and obtained from the parties to the matter.
8. On 25^th November 2015, the Second Respondent heard the matter in Buala, Isabel Province. During the hearing, the Appellant raised objection against one of the CLAC justices Culwick Vahia on the basis of conflict of interest as his father was a party to the matter at the ILC. The Second Respondent disallowed the objection and proceeded in allowing Vahia as one of the presiding justices over the matter due to the issue of quorum. It is also not disputed that during the hearing, the Second Respondent did not afford the parties to make submissions on the issue of the purported late filing of the appeal against the ILC decision. It appears from the record that the Second Respondent had received full submissions on the customary matters brought before it for determination and preferred to terminate the matter on the issue of the late filing of the appeal despite the absence of receiving submissions from the parties.
9. After the full hearing, the Second Respondent, in a written decision dated 25^th November 2015, struck out the appeal on the ground that it was filed more than 3 months from the date of the ICL decision as required under section 256 (1) of the LTA. The Second Respondent reached that decision by relying on the date “26^th October 1999”, as the date inscribed on the notice of appeal filed by the Appellant against the ILC decision.
10. Having been aggrieved by the decision, the Appellant then lodged this appeal on the grounds stated in paragraph 1 above.

Court’s jurisdiction to hear the matter

11. For this hearing, the jurisdiction of the court to deal with this matter is governed by section 256 (3) of the LTA, which states:
    • “(3) Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.”
12. In Tudubatu v Attorney General [2025] SBHC 7, the court at paragraph 7 echoes that an appeal from CLAC to this court is limited in either of these two categories. That is, where there is an error of law, or a noncompliance with any procedural requirements as provided by statute. Unless the Appellant can demonstrate any of the two requirements in s.256 (3), the decision of the Second Respondent is conclusive and will not be subject to appeal.

Ground 1 (i) - (vi)

13. The entirety of these appeal grounds can be condensed and considered together. On overall consideration, they are premised on the overarching issue of whether the appeal filed by the Appellant on the 26^th October 1999 against the ILC decision was out of time.
14. Section 256 (1) of the LTA states:
    • “256. (1) Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 254 or section 13(d) or (e) of the Local Courts Act may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.”.
15. In answering the issue, there is an un-contradicted evidence given by the current Honiara CLAC officer Ms. Maurine Maure at page 126 of the Appeal Book that the Appellant had made a payment of $400 as appeal fee against the decision of the ILC on 31st August 1999. The payment was made at the CLAC office in Honiara. That payment was receipted in the CLAC Register Book No. B.727602. In her sworn statement, which is accepted, she deposed that “the CLAC register book is used to record all cases appealed to the CLAC.” By the timeline, the payment of the fee is still within the 3 months’ appeal period.
16. Since the payment was recorded in the CLAC Register Book, the evidence of Lorraine Maure that it was erroneously recorded as “court fine” as opposed to appeal fee must be accepted. Unless there is a contrary evidence to this, which is denied, I accept that the payment of $400 made by the Appellant to the unknown court officer on the 31^st August 1999 is for the appeal fee against the ILC decision and for security for costs as usual required fees for CLAC cases, and not for the court fine as recorded in the CLAC Register Book.
17. This leads me to consider the question of whether the payment of the appeal fee is sufficient for the purpose of lodging the appeal despite the Appellant not having filed the notice of appeal within the 3 months as required by section 256 (1) of the LTA.
18. This issue can be easily determined. There is already an established jurisprudence in this jurisdiction that the payment of the appeal fee by an appellant within the prescribed time in section 256 (1) of the LTA is sufficient to bring the matter to the CLAC despite no filing of the formal notice of appeal. The authorities on this point are Kaupoi v Principal Magistrate (Malaita) [1985] SBHC 23 and Marina v Kinisita [1985] SBHC 15. In Kaupoi v Principal Magistrate (Malaita) (supra), the court was dealing with an issue of whether the payment of an appeal fee notwithstanding the absence of filing of the notice of appeal within the time to appeal the decision of the Local Court constitutes a valid appeal to the CLAC. The court therein held when accepting the payment of the appeal fee as valid to bring the matter to the CLAC despite the absence of detailed grounds of appeal stated (at page 1):
    • “1. Submission of grounds of appeal is not necessary to constitute a valid appeal from a decision of a Local Court to a Customary Land Appeal Court under s.231B(1) of the Land and Titles Act as is the case for an appeal from a CLAC to the High Court under s.231B(3) thereof. (Seselono v Kikiolo[ 1982] SILR 15 distinguished). (Katovai v Lumukana [1984] SILR 9 followed).
    • 2. In bringing an appeal to a Customary Land Appeal Court the only relevant fee that must be paid within the three months time for appeal is the appeal fee; the payment of security for costs is not relevant to the three months prescription. (Patatoa v Talauai [1983] SILR 112 followed).”
19. Also, in Marina v Kinisita (supra), a case similar to the case at hand, which involves the dismissal of the case at the CLAC due to the appellant’s appeal was time barred. In that case, the appellant had made full payment of the appeal fee within the 90 days of the Local Court decision. Four times the appellant asked for a copy of the Local Court record, but it was never supplied to him. At the hearing of the appeal, he was told that his appeal was time barred for failure to file his grounds of appeal. Wood C.J (as he then was) when allowing his appeal made these remarks (at page 1):
    • “1. As 231B (1) of the Land and Titles Act gives a general right of appeal from a decision of the Local Court to the Customary Land Appeal Court not restricted to specific grounds, the filing of grounds of appeal is not essential as is the case for an appeal from the Customary Land Appeal Court to the High Court made under s.231B (3) of the Act. (Seselono v Kikiolo [1982] SILR 15 distinguished). (Katovai v. Lumukana [1984] SILR 9 followed).
    • 2. Although no document was produced which can be said to be an appeal, the appellant paid all his fees, costs and charges of appeal within the ninety day appeal period and so complied with all the requirements for appeal of s.231B (1) of the Land and Titles Act.”
20. Applying the above principles to the facts of the present case, the uncontested evidence clearly shows the Appellant has paid the appeal fee of $400 to the CLAC in Honiara on the 31^st August 1999. The payment was made within the 3 months from the date the ILC decision was delivered. The Appellant has produced a receipt recorded No. B.727602 from the CLAC Register Book to prove such payment duly made. As such, in light of the cited authorities above, despite the notice of appeal was filed outside of the statutory time by the Appellant, the payment of the appeal fee is sufficient to allow his appeal to be heard by the Second Respondent. To use the words of Wood C.J in Marina v Kinisita (supra), “Although no document was produced which can be said to be an appeal, the appellant paid all his fees, costs and charges of appeal within the ninety day appeal period and so complied with all the requirements for appeal of s.231B (1) of the Land and Titles Act.” In light of the authorities and the evidence of the payment, I am satisfied that the payment of $400 made by the Appellant to the CLAC in Honiara on the said date has complied with section 256 (1) of the LTA.
21. Another limb of the argument advanced by the First and Second Respondents to this hearing is that the Appellant has failed to provide that evidence to the Second Respondent at the hearing and as such, the Second Respondent was correct to strike out the matter by relying on the date inscribed on the notice of appeal filed on 26^th October 1999. The fault should be apportioned to the Appellant and not the Second Respondent.
22. Despite that apparently plausible argument, the evidence has clearly established that the Second Respondent, at the time of hearing of the matter, has relied solely on the purported late filing of the appeal as the determinative factor to strike out the matter. Unfortunately, it failed to invite submissions from the parties before making the decision. If the parties were to be afforded the opportunity, the required evidence would be available and the decision could potentially be considered differently. There is no doubt that the failure by the Second Respondent to do so has severely prejudiced the rights of the Appellant to be heard before the decision was made on whether or not the appeal was filed out of time. This, in my view, constitutes an error of law that fundamentally requires this court to set aside the Second Respondent’s decision at the court below pursuant to section 256 (4) of the LTA. This ground is allowed.

Ground 5 (i) - (iii)

23. Having reached that decision, I do not think it is sufficient for me to address in detail the remaining appeal ground as the decision of the Second Respondent in striking out the matter was only confined to the matters raised in appeal ground 1 above. I would only add that it is trite law in this jurisdiction that a justice of the Local Court or the CLAC is an officer of the court. A justice who has an interest in the case due to close or family relationships with any of the parties to the matter should not be allowed to sit in the matter. That justice should call upon himself or herself and by all means, should be recused from the matter for the common good of the court. This is not for convenience purposes, but for the preservation of the reputation and the integrity of the court.
24. In this case, there is undisputed evidence that the two justices of the CLAC namely, Chief Ambrose Bugotu (President) and Culwick Vahia (ordinary member) were said to have an interest in the matter. For example, the President of the Second Respondent Chief Ambrose Bugotu had prior to the hearing in November 2016, and upon request from the First Respondents, had advised the Appellant’s party in a letter to vacate the Loalona customary land because the First Respondents had won the land dispute case against them. In that regard, he had a prior involvement in the matter before the actual hearing in November 2016. For Justice Culwick Vahia, he is the son of Culwick M Vahia, the wining party at the ILC. Despite the prior encounter and the extremely close relationship, they were allowed to hear the case and eventually, the signatories to the decision of the Second Respondent, the subject matter of this appeal.
25. The Appellant had objected Culwick Vahia from presiding over the matter as evidenced in the Minutes of the Second Respondent at page 232 of the Appeal Book. The Second Respondent decided to overrule the objection due to the issue of lack of quorum if Vahia was to be disqualified. In my view, there is merit in the objection. The Second Respondent unfortunately has fallen into error in rejecting the objection in light of the clear evidence to warrant the recusal of justice Vahia. This court fails to see why the Second Respondent decided not to recuse him from the proceeding in order to protect the integrity and the impartiality of the court. There is no doubt that his integrity and impartiality in the matter had been tainted or compromised with one of the parties to the matter. The Second Respondent decided to protect him than the integrity of the court by allowing him as one of the justices to sit in the matter which is egregious. This reason alone is overwhelming to allow this ground of appeal.
26. Premised on the above stated reasons, it must follow that the appeal filed herein must be allowed. Costs of this hearing shall be paid by the First and Second Respondents on standard basis.
27. Since the customary evidence regarding the dispute over the Loalona customary land is yet to be considered and determined by the Second Respondent, it is only proper that the matter be referred to a differently constituted Isabel Customary Land Appeal Court to hear the matter afresh.

Orders of the Court

1. Appeal is allowed.
2. The decision of the Second Respondent in ICLAC No. 6 of 1999 is quashed.
3. The appeal and the Amended Notice of Appeal filed on 22^nd February 2016 are valid and reinstated accordingly for further hearing of the dispute between the Appellant and the First Respondents.
4. The matter is remitted to a differently constituted Isabel Customary Land Appeal Court to hear the dispute between the Appellant and the First Respondents afresh.
5. Costs of this hearing shall be paid by the First and Second Respondents on standard basis.

THE COURT
Hon. Justice Augustine S. Aulanga
PUISNE JUDGE