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Hong v Attorney General [2025] SBHC 49; HCSI-CC 13 of 2022 (26 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 13 of 2023

BETWEEN

ISAAC HONG
Appellant

AND:

ATTORNEY GENERAL
First Respondent

AND

SAMAE LIVA
Second Respondent

Date of Hearing: 25 February 2025
Date of Ruling: 26 March 2025

Ms P Rofeta for the 1^st Respondent/ Applicant
Mr William Jonga for the 2^nd Respondent
Mr L Hite for the Appellant

JUDGMENT

Kouhota E

On 29^th February 2024, this court grant leave for the appellant file his amended Notice of Appeal. Following this, the Appellant filed his Amended Notice of Appeal on 14^th March 2024.

The Appellant Amended Notice of Appeal is an appeal against the written decision of the Western Customary Land Appeal Court (WCLAC) delivered on 19^th April 2022.

The Amended grounds contained 3 grounds of appeal which are;

Ground 1.

The First Respondent erred in custom and fact pursuant to paragraph 16,22,23 and 24 of its decision when it concluded in paragraph 24 that “.....ownership of any properties outside of the disputed lands or in Rokama land (tabu site or shine) cannot be used to justify or claim ownership over Bope and Indigore lands or the whole of Karivara land.”

The Appellant submits, this conclusion is clearly wrong and is contrary to the evidence before the appeal proceedings. Bope land, Indigore land and Rokama land (tabu site) are blocks of land within Karivara customary land (main customary land). Therefore, ownership of the tabu site (Rokama Land) and ownership of properties within the Karivara main customary land is a relevant consideration for the WCLAC to determine or justify who owns Bope land and Indigore land (the disputed blocks of lands).

Counsel for the Appellant submit- that it is obvious from the WCLAC’s conclusion that this submission was not considered at all and was outright rejected. However, it is a relevant consideration, which, is available and would clearly determine or justify the issue of ownership.

The First Respondent is the Attorney General. In response to the first appeal ground, counsel for the First Respondent submit that High Court jurisdiction does not extend to ruling on matters of custom. She referred to section 256(3) of the Lands and Title Act, which states;

“Any person aggrieved by an 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 grounds that such decision or order is erroneous in point of law ( which expression for this purpose shall not include a point in customary law) or in the ground of failure to comply with any procedural requirement of any written law”

Counsel for the Second Respondent in his submission also refer section 256 (3) of the Lands and Title Act. Both counsels for the Respondents submit that appeal point number 1 is about a decision on a customary issue and as such by virtue of section 256(3) referred to above, this Court cannot entertained it. After considering the submissions of counsels, the Court found it is clear appeal point number 1 is on customary issue, which this Court cannot entertained hence, appeal point number is dismissed.

Ground 2

In the second ground of appeal the Appellant alleged that the WCLAC erred in law when it upheld and concluded in paragraph 41 and 42 of its decision “that the local Court reliance on extracts from a Journal “The Cult of Dead” is authorized or provided for by section 239 (1) and (2) of the lands and Titles Act [Cap 133] for proof of the existence and chieftaincy of Chief Bolana.”

Counsel for the Appellant submitted that the WCLAC applied a wrong principle of law to the issues and facts raised before the proceedings. Whereas section 239 (1) and (2) of the Lands and Titles Acts [Cap 133] provide as follows;

Customary Land
239. (1) The manner of holding, occupying, using, enjoying and disposing of customary land shall be in accordance with the current customary usage applicable thereto, and all questions relating thereto shall be determined accordingly.
239(2) For the purpose of ascertaining any current customary usage, a Court required to determine a question in accordance therewith may refer to any books, treaties, reports (whether published or not), or other works of reference, and may accept any matter or thing stated therein as prima facie evidence of the usage in question unless and until the contrary is proved.

Counsel for the Appellant submits that WCLAC fell and erred when “it concluded that those sections can be relied on, for purpose of ascertaining “the existence and chieftaincy of Chief Bolana.”

Counsel for the Appellant submit the proper application of those sections pertains to determination of a question (s) in respect to “holding, occupying, using, enjoying, and disposing of customary land.” The sections have nothing to do with determining a person’s chieftaincy or for determination of customary land boundaries or ownership. Rather it applies, the counsel submits, where customary land ownership is clear and there is a need to determine “the manner of holding, occupying, using, enjoying, and disposing of it through current customary usage.

In my view, section 239(2) allows the Court in determining current customary usage of customary land may refer to any (books, treaties, reports whether published or not ),or work of other reference, and may accept any matter or thing stated therein as prima facie evidence of the question of usage. It is clear the section only allow the Court to refer to the materials mention in section 239(2) when ascertaining current customary usage and not other issues relating to customary land such as boundaries, ownership, and chieftainship over the land.

In the present case, the Vella La Vella Local court was not ascertaining the issue of customary land usage but was determining ownership and chieftainship. The Local court in fact accept as evidence what was stated in the journal about the existence of the chieftaincy of Bolana. In view of this and after considering the submissions of counsel and the materials before the Court I accepted the submission of counsel for the Appellant that the proper application of section 239(2) pertains to questions of holding, occupying, using, enjoying and disposing of customary land,

In this respect the Court is not allowed to use section 239(2) when ascertaining other issues of customary land. The factors, holding, occupying, enjoying, using and disposing are what are considered as usage of customary land and it is when determining the current position of these factors, that a court may refer to books, treaties reports etc.

In the present case, I consider the WCLAC erred when it accept the Vella La Vella Local court acceptance of what was stated in the journal “ the cult of dead” as evidence when the Vella La Vella Local court was not considering the issue of current customary usage but was considering ownership and chieftainship of Bolana. Appeal point number 2 is allowed and upheld.

Ground 3

In the third ground of appeal, the Appellant submits that the First Respondent erred in law and fact when it upheld the Ghorena Local Court (“GLC) Decision in Land Case No. 01 of 1987 delivered on 10th August 2009. In doing so, the GLC did not address or consider a Simbo, Ranogga Local Court Case 02 of 1980 decision put before the appeal hearings by the Appellant.

Counsel for the Appellant submit the Simbo Ranogga Local Court held “that Sunga was chief of Karivara tribe and owner of Karivara customary land at paragraphs 8 and 10, page 7 of the decision.” The effect of which, there are now two (2) conflicting Local Court decisions being reflected by GLC’s decision which held “this Court must reserve its agreement to the decision of Simbo/Ranogga Local Court of Land Case 02 of 1980 and stand not to involve with that decision.”

Counsel for the Appellant submitted that the WCLAC failure to consider and determine appeal point in the proceedings when it was put before the WCLAC resulted in two conflicting Local court decisions. Counsel submit that paragraphs 11 and 17 of the WCLAC decision did not address the issue by any specific reference to the 1980 Local Court decision. In failing to consider that appeal ground, the WCLAC failed to exercise its mandate to make a determination on the subject.

Counsel for the Appellant submit that it is trite law that an appellate court can interfere with decisions made by a trial judge or court below in limited circumstance and are exercised where the conclusion of a trial judge or court below are not supported by evidence or are clearly wrong.

In response to the third ground of appeal counsel for the First Respondent opposes this ground on the basis that this was not raised earlier as an appeal from the Vella La Vella Local Court to the Western Customary Land Appeal court so it ought not to be raised in this appeal.

Counsel for the Second Respondent submit that in that case Isaac Hong was the Plaintiff v Lisa and Boaz as Defendants. He submit that all procedures were followed. Counsel submitted that the Appellant failed to make their case on those grounds; and the standard in determining whether the decision of WCLAC is erroneous is a standard of a reasonable person, counsel referred the case of Tutua v Nano HCC 65 of 2020, which states whether or not a reasonable person would look at the decision of the WCLAC and identify that no reasonable Tribunal would reach such a decision. Counsel submit that test has not been made out.

In order to determine this point of appeal the Court must consider which Local decision was appealed to the WCLAC. If it is the decision of the Vella La Vella Local court then that is the only Local Court decision before the WCLAC. If that was the case, the WCLAC is not bound to consider the decision of the Simbo Ranogga Local court for the very reason that the appeal before the WCLAC is not against the Simbo Ranogga Local Court decision.

I had viewed and considered the materials in the WCLAC file and it is clear what was before the WCLAC was an appeal against the Vella La Vella Local court decision in land case No. 01 of 1987 dated 10^th August 2009.

In fact the Simbo Ranogga Local court decision that the Appellant says the WCLAC did not consider was previously appealed to WCLAC by the Appellant and heard by the WCLAC on 14^th January 1992. That appeal was successful and the Simbo Ranogga Local court decision was quashed by the WCLAC and it ordered the land case be heard anew by a different constituted Local Court. The case was therefore re- heard by the Vella La Vella Local court in November 2008 and its decision was delivered on 10^th August 2009. It is against that decision that Appellant appeal to WCLAC. It is the WCLAC decision in that appeal that led to the present appeal.

After considering the material before the Court and the chronology of events that led to this appeal, the Court found that there are no two conflicting Local court decision in this case as the decision of the Simbo Ranogga decision was quashed by the WCLAC on appeal. The Court is also satisfied that the WCLAC is not required to consider the decision of Simbo Ranogga Local Court because that decision was quashed and longer existed. The third ground of appeal is without merit and must be dismissed.

While two grounds of appeal were dismissed, the ground of appeal that was upheld affects the whole decision of the WCLAC, so the Court make the following orders;

1. Appeal point number 1 is dismissed
2. Appeal point number 2 is upheld
3. Appeal point number 3 is dismissed.
4. The decision of the WCLAC is dismissed and the matter is referred back to be heard de nevo by different constituted Western Customary Land Appeal Court.
5. Cost for the Appellant to be assed if not agreed.

THE COURT
Justice Emmanuel Kouhota
Puisne Judge