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Vaqalo v Dokabule [2024] SBCA 30; SICOA-CAC 64 of 2023 (25 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. On 20 December, 2022, the Appellant as the Claimant in the Court below (“the Appellant” hereon) filed a Category A Claim against the Respondents as the Defendants (“the Respondents” hereon), the Appellant sought the following reliefs: -
   • (i) An order that the Defendants deliver vacant possession of a portion of Solomo customary land called “Sake” to the Claimant; and
   • (ii) An order permanently restraining the Defendants from re-entering, occupying and or carrying on any development of whatsoever nature in Sake portion of Solomo customary land in Choiseul Province; and
   • (iii) An order permanently restraining the Defendants from intimidating the Claimant and or members of Solomo tribe in anyway whatsoever; and
   • (iv) Costs.
2. In the Claim, the Appellant claimed the Solomo tribe of which he is a member owned the Solomo customary land in Choisuel Province and the ownership of the land by his tribe had been judicially determined and confirmed. He claimed the Respondents belonged to Choropodoko tribe also in Choiseul Province which occupied a portion of Solomo customary land known as “Sake” without the consent of the Solomo tribe. He further claimed the Respondents’ tribe not only occupied Sake land illegally but had also developed it and had continuously intimidated the Solomo tribe members including himself. The Appellant claimed, the Respondents were occupying Sake land only because the Solomo tribe have not fulfilled a long outstanding customary obligation for which the Solomo tribe was supposed to have settled a debt they owed to the Respondents for rescuing one of them namely, a daughter in-law of the Solomo tribe chief during a tribal fight in the 1930s. The Appellant further claimed that once the Solomo tribe discharges that customary obligation, the Respondents have to leave Sake as they have no customary land rights to continue occupying Sake land. The Appellant also claimed that he informed the Respondents that Solomo tribe was prepared and willing to settle the customary obligation owed to them but the Respondents refused the offer.
3. The Appellant claimed, following refusal by the Respondents of Solomo tribe’s offer to settle their customary obligation to them, the Appellant (Solomo tribe) referred the matter to Tavula Zone 2 Council of Chiefs in Choiseul, and the Chiefs made a determination and confirmed the Solomo tribe’s ownership of Solomo customary land, including the Sake land. The Appellant claimed that, following the determination by the Tavula Zone 2 Council of Chiefs, the Solomo tribe made further offers to the Respondents to settle their customary obligation but those offers were also refused. This eventually led to the Tavula Zone 2 Council of Chiefs cancelling the customary obligation owed to the Respondents by the Solomo tribe and ordered that Sake land be returned to the Solomo tribe.
4. Having been aggrieved by the decision of the Tavalu Zone 2 Council of Chiefs, the Respondents purportedly referred the matter to Lauru (Choiseul) Local Court, which in its decision on 13^th September, 2018 confirmed the decision of the Tavula Zone 2 Council of Chiefs. The decision of the Lauru Local Court was challenged in an appeal to the Western Customary Land Appeal Court (“the WCLAC” hereon) by the Respondents in CLAC Case No. 25 of 2018. However, the Respondents withdrew the appeal by a Notice of Withdrawal to the WCLAC, the withdrawal of the appeal was also verbally communicated to the WCLAC. Following the withdrawal of the appeal by the Respondents, the WCLAC on 3 June, 2019 made among others, the following Orders: -
   1. 1. The WCLAC case no. 25 of 2018 is hereby withdrawn.
   2. 2. The Choiseul Local Court Judgment dated 13^th of September, 2018 is upheld.
5. On 31 January, 2023, the Respondents filed their Defence and Counter-Claim. On 8 February, 2022, the Appellant filed his Reply and Defence to the Respondents’ Defence and Counter-Claim.
6. In their Defence, the Respondents claimed that the Appellant is not the rightful owner of Solomo customary land because it is owned by the Solomo tribe (of which the Appellant is a member). The Respondents claimed that in 1930s their tribe, namely Choropodoko tribe started occupying the Sake land through their act of bravery when their tribesmen rescued the Solomo’s Chief’s son’s wife (daughter in law) during a tribal fight. As a result, by custom, the Solomo tribe was expected to have made a customary form of payment to the Respondents’ tribesmen to repay them for their act of bravery in rescuing the Solomo tribe’s Chief’s daughter in-law, but the Solomo tribe failed to fulfil that customary obligation.
7. In para. 2.2 of the Defence, the Respondents state as follows – “According to the worthy custom of Lauru, Sake Land can be returned to the Solomo tribe if their debts are completely settled. In about 1950, after many years of waiting for the settlement of debts, the Chiropodoko tribe decided to move in and settle on the part of the Sake Land to date”. It states that this has since resulted in the two tribes living together on the Sake land.
8. The Respondents admitted in their Defence that an offer of $1000 was made by the Appellant’s tribe to the Respondents’ tribe, but the offer was refused because it was too small compared to the value of properties they owned on the land and the improvements they made to the land. The Respondents also claim, there are inter-marriages between the two tribes and the Appellant was pursuing his personal interests.
9. In their Counterclaim, the Respondents basically asked for the value of their properties on the Sake land to be assessed by the Court so that they can be properly and fully compensated by the Solomo tribe before they can vacate the land.
10. In his Reply, the Appellant states he brought the Claim on behalf of the Solomo tribe, and $1,000.00 offered to the Respondents was not to pay for the value of their properties on Sake land, rather it was to settle the customary obligation the Solomo tribe owed to the Respondents’ tribe.
11. The Appellant claims that, any improvements made to the land by the Respondents’ tribe were done on their own volition not at the request of the Solomo tribe. Therefore, Solomo tribe had no obligation to pay for the improvements to the land.
12. On 17 May, 2023, the primary judge gave Directional Orders to the parties. The Orders gave timelines by which certain documents for the purposes of expediting the hearing of the Appellant’s claims were to be filed and served. The Orders included filing and service of the Respondents’ Defence and Counterclaim, filling and service of sworn statements, Agreed Facts, and the Pleadings Book. Pre-trial Conference was set for 25 September, 2023 at 9.30am.
13. On 30 August, 23, the Appellant filed an Application for Summary Judgment. The reliefs sought were same as those sought in the Claim. The Application was supported by the sworn Statement of Robinson Mamakana filed on 20 December, 2022, which was also the basis of the Appellant claim.
14. On 17 November, 2023, the primary judge gave the following Orders: -
    • UPON HEARING oral Submissions from P. Teddy of Counsel for the Defendants and no appearance from L. Ramo of Counsel for the Claimant.
    • AND UPON NOTING that the Claim (Category A) dated 20 December 2022 filed by the claimant is premised on the issues of Custom and issues of Customary Land which the Court has no jurisdiction to deal with, the Court is satisfied and IT IS HEREBY ORDERED AS FOLLOWS: -
    1. 1. The Claimant’s Claim (Category A) filed on 20 December 2022 is hereby Struck Out.
    2. 2. Cost against the Claimant on Standard basis.
    • PERFECTED, SIGNED AND SEAL THIS 17 NOVEMBER 2023
    • BY THE COURT
    • (Signed)
    • Justice Maelyn Bird PJ
    • High Court of Solomon Islands
15. It should be noted that no striking out application was made by the Respondents, either under Rule 9.71 or Rule 9.72 of the Civil Procedure Rules, 2007.

Grounds of Appeal

16. In the Notice of Appeal filed on 21 November, 2023 the Appellant raised 3 grounds which can be summarized as follows: -
    1. The decision of the primary judge to strike out the appellant’s claim was unreasonable and the learned judge was biased in her decision because;
       • (i) During the course of the proceedings, she continued to state that she had no jurisdiction to hear the claim because the claim was related to customary land issues and therefore had no power to order eviction against the Respondents from Sake.
       • (ii) The primary judge erred in ignoring the Appellant’s application for summary judgment which was pending before the court.
       • (iii) The primary judge was biased because she directed the Respondents’ lawyer to file a strike out application despite the counsel agreeing to stay the proceeding pending the outcome of the referral by the Respondents challenging the decision of the Council of Chiefs by referring the matter to a Local Court and given that the referral was pertinent to the eviction claim by the Appellant in the Claim.
    2. The primary judge erred in striking out the Appellant’s claim when there was no strike out application by the Respondents before the court.
    3. The primary judge erred in not staying the proceeding given that the Respondents had made a referral to a Local Court.
17. The Appellant seeks the following reliefs: -
    • (1) The strike out order by the primary judge be quashed; and
    • (2) The matter be remitted to the High Court to be tried before another judge;
    • (3) Parties to bear their own costs.

Consideration

18. Having considered the materials before the Court, including submissions by counsel, we consider first the ground of appeal based on claims of bias against the primary judge. We have come to a conclusion that the ground is based on speculation and conjecture; thus we dismiss the ground of appeal based on bias against the primary judge. There is no factual basis for the appellant to allege bias against the primary judge. For example, there is no evidence that the primary judge was in any way related or connected to the respondents which could suggest that she had an interest in the outcome of the case favouring the Respondents. We therefore find the appellant has failed to satisfy the relevant test to establish bias against the primary judge, viz; “real likelihood of bias” and “reasonable suspicion by right thinking people on the circumstances that there may have been bias” against the primary judge, as enunciated in Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon & Others [1968] EWCA Civ. 5; [1968] 3 All ER 304, which Palmer CJ adopted in Maenu’u v. Lamani [1992] SBHC 87; HCSI-LAC 2 of 1992 (22 December, 1992). See, also Puluhenua v. Dorawewe in [2011] SBHC 4; HCSI-CC 505 of 2010.
19. In any case, the Orders the primary judge made on 17 November, 2023, which are the subject of this appeal should be set aside because the judge erred in two fundamental respects - first, failing to give reasons for striking out the claim, and second, striking it out on her own initiative without notice having been given to the respondents.
20. The failure to give reasons for such a significant decision was an error of law. In Amet v. Yama [2010] PGSC 46; SC 1064, the Papua New Guinea Supreme Court said: -
    • “...It goes without saying; the appellant or applicant in a judicial review application is entitled to the trial judge's reasons for decision. And the trial Judge has a duty to provide reasons for decision. The duty to give reasons is a necessary part of the duty of a public official to accord natural justice to persons affected by the decisions of those public officials. That duty is essential to the observance of the rules of natural justice as held in, Ombudsman Commission v Peter Yama [2004] SC747 (Injia DCJ (as he then was), Sakora & Sawong JJ).
    • If no reasons are stated, it will follow that the decision lacked any good reasons. In the case of Godfrey Niggints v Henry Tokam & 2 Ors [1993] PNGLR 66, Amet CJ (then) said at p 72:
      • "If no reasons are stated other than this kind of statement, it leaves the Court no option than to conclude that there was no good reasons at all. Public officials discharging public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect substantial interests and welfare of other officers and their families, good management and common sense principles of fairness require that reasons be given."
      • In Mission Asiki v Manasupe Zurenoc and the State, [2005] unreported, SC797 the Supreme Court held, the first respondent's failure to give reasons means there was no good reasons. The Court also stated that, the failure to give reasons amounted to an error of law and a denial of natural justice.
      • We approve and apply the statement by Amet CJ in Godfrey Niggints v Henry Tokam & 2 Ors (supra) in the present review as a sound principle of law to guide the Appellate Courts in dealing with appeals and reviews that are without or lacking reasons or sufficient reasons for decision. The applicants as well as the respondents are entitled to the trial judge's reasons for decision. Having the right to appeal against or review of a decision of the National Court necessarily comes with it, the right to be informed orally or in writing, the reasons for decision. A pronouncement by the court falling short of given reasons will inevitably lead to a conclusion that the court or a decision making authority has no good reason for the decision made. That itself may be a ground to uphold the appeal or review because of error of law or denial of natural justice: Mission Asiki v Manasupe Zurenoc and the State”.
21. The failure to give notice to the respondents of what was proposed was a denial of natural justice. In fact, it appears that the respondents’ lawyer had intended to appear before the primary judge when the case was listed for mention that day, but was unable to do so because her motor vehicle broke down.
22. Regarding the purported referral of the Tavalu Zone 2 Council of Chiefs’ decision to a Local Court on or about 24 October, 2023, we are of the opinion that any issues that have been or may have been referred are res judicata because the same issues had already been appropriately and exhaustively dealt with as we discussed earlier in our judgment. The Respondents appealed the same issues to the WCLAC but withdrew them after they (the Respondents) filed a Notice of Withdrawal of the appeal and informed the WCLAC that they accepted the decision of the Tavalu Zone 2 Council of Chiefs’ decision. The result is issue estoppel now lies against the Respondents from reagitating those same issues. See, Talasasa v. Paia and Another [1980-1981 SILR 93, per Daly CJ and Carl-Zeiss-tiftung v. Rayner and Keeler Ltd and Another [1966] 2 All ER 536 at 565 G. It would also be an abuse of process if the Respondents were allowed to refer the same issues to a Local Court. This Court has the duty to protect its processes from being abused by the Respondents. This to us is an attempt by the Respondents to have a second bite of the cherry. Furthermore, it is in the public interest that litigation of the issues be brought to finality. More importantly, the Respondents do not deny in their Defence of the Appellant’s claim that Solomo tribe owned Solomo customary land, including the Sake land. This must effectively render the Respondents’ purported Defence against the Appellant’s claim a sham. The Respondents have, as we alluded to above fully exhausted the referral process this court laid down in Ulasi v. Ngwaefuana [2023] SBCA 34; SICOA – CAC 9013 of 2021 (13 October, 2023). The Respondents therefore have no further recourse in law to challenge the Solomo Tribe’s ownership over the Solomo customary land, including the Sake land.
23. It follows that the only outstanding issue for determination by the court below is the Application for Summary Judgment the Appellant filed on 30 August, 2023, which is still pending before the court below.
24. Regarding the costs of this appeal, it is entirely up to the discretion of the Court; but in making an order for costs, it must be based on proper principles. In this case it is clear from the terms of the Orders the primary judge gave that, they were made ex-parte of the appellant because the court only heard from the Respondents. The Appellant was as a result forced to lodge this appeal. In the circumstances we are of the firm view that costs should follow the event.
25. Consequently, we make the following Orders: -
    1. Appeal is allowed; and
    2. The Orders of the primary judge given on 17 November, 2023 are quashed and set aside; and
    3. The matter is remitted to the High Court to be tried before another judge, including the Appellant’s Application for Summary Judgment; and
    4. The Appellant’s costs of and incidental to this Appeal are to be paid by the Respondents, which are to be taxed, if not otherwise agreed.
26. Orders accordingly.

Muria P
Wilson JA
Gavara-Nanu JA