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Tudubatu v Attorney General [2025] SBHC 7; HCSI-CC 464 of 2023 (4 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 464 of 2023

BETWEEN:

BILLY TUDUBATU AND OTHERS
Appellants

AND:

ATTORNEY GENERAL
(Representing the Western and Choiseul Customary Land Appeal Court)
First Respondent

AND:

PHILIP BAVARE AND OTHERS
Second Respondents

Date of Hearing: 5^th December 2024
Date of Ruling: 4^th February 2025

Mr. D. Marahare for the Appellants
Mr. J. Devesi for the First Respondent
Mr. B. Kaehuna for the Second Respondents

RULING

AULANGA, PJ:

1. The Appellants and the Second Respondents were parties to a dispute over the ownership of Kubongava customary land in Choiseul Province. It started before the Babatana Council of Chiefs (“BCC”). On 3^rd December 2018, the BCC decided in favour of the Second Respondents. It was a one-sided hearing, occasioned by the default of the Appellants in attending the hearing.
2. The Appellants’ party referred the dispute to the Lauru Local Court (“LLC”) for further hearing. There is no issue regarding the validity of the referral. It was a full hearing where customary evidence from both parties were presented and considered. On 28^th October 2022, the LLC decided in favour of the Appellants as the customary landowners of the Kubongava land. The LLC had considered the genealogy, customary properties and competing ownership claims by the parties when it decided in favour of the Appellants. It is important to note that at the LLC, the issue of res judicata and the locality of the BCC was not raised.
3. The Second Respondents then appealed the LLC’s decision to the Western Customary Land Appeal Court (“First Respondent”). The First Respondent heard the dispute on appeal, set aside the LLC’s decision and awarded the ownership of the Kubongava to the Second Respondents. It is also accepted evidence that the Appellants did not raise res judicata and the issue of the locality and the legality of the BCC before the First Respondent despite the given opportunity. The failure to do so is unknown.
4. The Appellants now appeal to this court against the decision of the First Respondent. There are six grounds of appeal as set out in the Notice of Appeal filed on 22^nd September 2023, as follows:
   1. The CLAC erred in law when it upheld the decision by the Babatana Council of Chiefs (BCC) dated 3^rd December 2018 without any due regard to the legal capacity of the BCC being from another locality to hear the dispute over Kubongava customary land.
   2. The CLAC had erred in law and/or breached the provisions of the Local Courts Act (Cap. 19) when it upheld the decision by the BCC notwithstanding that the BCC has yet to exhaust all the traditional means of resolving the dispute over Kubongava customary land as required by law.
   3. The CLAC had erred in law when it considered and upheld the BCC’s decision notwithstanding that the decision was made in the absence of the Appellants.
   4. The CLAC had erred in law when it failed to consider and take into account the decision by Tepazaka Council of Chiefs (being the appropriate forum) that was made on 10^th March 2020, which decision simply concluded as erroneous the BCC’s decision.
   5. The CLAC had erred in law when it failed to consider and take into account the decision by Virisi Council of Chiefs dated 6^th May 2017, which effectively found the Appellant namely Billy Tudubatu as the chief of the Kubongava tribe.
   6. The CLAC had erred in law when it failed to consider and take into account the applicability of the principle of res judicata to the dispute over Kubongava tribe on the basis of the Respondent’s blood and tribal connection to other losing parties such as Abraham Zale and Rence Vagalo.
5. In the final analysis of the First Respondent’s decision, at paragraph 13, it states:
   • “This Court after assessing and analysing all the submissions and evidence presented before it, hereby makes the following orders:
   1. Appeal allowed
   2. The decision of the Lauru Local Court dated 28^th October 2022 is hereby quashed.
   3. Upheld the decision of the Babatana Council of Chiefs dated 3^rd December 2018.
   4. Right of appeal applies.
   5. Parties to bear their own costs.”
6. The jurisdiction of this court to deal with this matter is governed by section 256 (3) of the Land and Titles Act (Cap. 133), 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.”
7. It is clear from the ordinary meaning of this provision that an appeal from CLAC to this court is limited in either of these two broad prongs. That is, an error of law or a noncompliance with any procedural requirements as provided by statute. Section 256 (4) of the Land and Titles Act then makes the decision of the CLAC and where appropriate the High Court as final decisions. In this case, unless the Appellants demonstrate any of the two requirements in s.256 (3), the decision of the First Respondent is conclusive and will not be subject to appeal.

Ground 1

8. The first appeal ground can be conveniently disposed of. This ground raises an argument that the BCC is not from the locality of the disputed land and by implication, the BCC’s decision is invalid and a nullity. Hence, the Appellants say that it is an error of law for the First Respondent to uphold an invalid decision made by chiefs not recognised under section 11 of the Local Courts Act (Cap. 19). According to the Appellants, Tepazaka Council of Chiefs is the appropriate body to hear the dispute since it was from the locality or region of the disputed land.
9. In any event, the BCC had decided that the Babatana and Tepazaka shared a common boundary with common custom and cultural practices. That means, they have common understanding of the traditional land tenure system of the disputing parties. The Appellants, upon referral, did not dispute this finding in the Local Court. Their interest was more on the ownership of the Kubongava and not on the peripheral issue on the locality of the BCC.
10. It is an accepted evidence that the issue of the legal composition and the locality of the BCC was never raised before the LLC and the First Respondent, but to this court. There was no satisfactory explanations in court why that was not raised.
11. If indeed it was an issue, the Appellants should have raised it at the LLC for proper determination. The LLC is the best forum to deal with this issue as it might affect the validity of the decision referred to the LLC. Where possible, the LLC would remit the matter before another council of chiefs.
12. This issue, if properly considered, raises a question of fact that needs to be proven on evidence since an inquiry into the locality of the BCC inevitably requires the LLC to decide on (i) whether the individuals in the BCC were appointed chiefs, (ii) whether they resided within the locality of the land in dispute and (iii) that they must be recognised as chiefs by both parties to the dispute. These requirements are important matters to prove as held in Qame v Tsodo [2024] SBHC 97. All these requirements can be easily decided by the LLC on evidence. The Appellants were afforded the opportunity, but failed to raise it before the LLC. They cannot wait until the High Court to bring this issue for consideration. This is unacceptable.
13. In any event, the failure of the Appellants to raise it before the LLC must mean that, except for the ownership of the disputed land, the Appellants have accepted the BCC’s decision on the issue of the locality of the chiefs that presided over the dispute.
14. This dispute was heard on appeal by the First Respondent in the exercise of its powers conferred by statute under section 255 (4) of the Land and Titles Act. The First Respondent reached a decision after a contested hearing. It has considered all the customary evidence from both parties based on the appeal grounds brought against the LLC’s decision. The First Respondent found in favour of the Second Respondents as the landowners of the Kubongava customary land, the same decision reached by the BCC. Hence, I do not see any legal error committed by the First Respondent in upholding the BCC’s decision. Put another way, the First Respondent in upholding the BCC’s decision is in fact confirming the findings made by the BCC after a full review of the LLC’s decision on appeal. The First Respondent is entitled to do that in the exercise of its statutory powers and functions. This ground is without merit and is dismissed.

Ground 2

15. For this ground, the Appellants aver that the CLAC erred in law when it upheld the BCC’s decision notwithstanding that BCC has yet to exhaust all the traditional means of resolving the dispute over the Kubongava customary land. The purported error of law is a breach of the provisions of the Local Courts Act. In what aspect of the “traditional means of resolving the dispute” that the BCC failed to consider was not mentioned or suggested in court.
16. In any event, there is no issue that it was a one-sided hearing. Typically, in the given situation, only the evidence of the Second Respondents, as the participating party, would be considered. Even if all the traditional means to decide the ownership of the disputed land were not considered or exhausted as a result of the ex parte hearing, the BCC upon referral has relinquished that duty to the LLC pursuant to section 12 (2) and (3) of the Local Courts Act. The Appellants decided to absent themselves from the hearing before the BCC and hence, I do not see any reason how they can now assert that they were disadvantaged. There is no error of law raised for this ground. This ground is also dismissed.

Ground 3

17. This ground is linked to the second appeal ground in that the Appellants aver that it was wrong in law for the First Respondent to consider and uphold the ex parte decision of the BCC. The Appellants’ main contention is that the BCC only considered the evidence of the Second Respondent. As such, that decision should not be recognised or upheld by the First Respondent since the procedural requirement for reception of evidence from both parties as required under section 13 of the Local Courts Act has not been complied with.
18. I have considered this ground. It must be noted that the First Respondent sits as an appeal court on the decision from the LLC, and not the BCC. Nowhere in the statutory scheme for the resolution of customary land disputes in this jurisdiction that permits an aggrieved party to the chiefs’ decision to bring the matter directly to the CLAC. It must go through the Local Court before it reaches the CLAC as required by section 256 (1) of the Land and Titles Act. Viewed in this context, in this case, the First Respondent was in fact reviewing the LLC’s decision by way of appeal hearing. Hence, by upholding the BCC’s decision after the contested hearing, the First Respondent was in fact executing two things. First, it set aside the LLC’s decision upon examination of all the evidence presented before it and second, it reaches a finding that confirms the finding or decision made by the BCC. Practically, that is what occurred in this case. I do not see any error in doing so. That is a trite statutory power exercisable by the First Respondent pursuant to section 255 (4) of the Land and Titles Act. There is no basis this court should interfere with the decision of the First Respondent. This ground must also be dismissed.

Grounds 4 and 5

19. Appeal grounds four and five are considered together. These two grounds in my view are somehow bizarre as they advanced an argument that the First Respondent should consider a decision by Virisi Council of Chiefs (“VCC”) made on 6^th May 2017 and another by Tepazaka Council of Chiefs (“TCC”) made on 10^th March 2020 when determining this dispute. By implication, if they are considered, the decision would fall favourably on the Appellants. In any interpretation, the problem with these two grounds is that the Appellants did not identify what error was made by the First Respondent when it failed to consider those decisions. By simply stating that the failure of the First Respondent in the circumstances amounts to an error of law, it is merely a general statement without any legal basis.
20. In any event, the arguments raised by the Appellants for these grounds in my view are bereft of merit. The VCC and TCC decisions form no part of the referral to the LLC for this present proceeding. Notably, it is not part of the decision of the First Respondent. What the VCC and TCC said or determined in their respective decisions is immaterial to this proceeding for the obvious reason that they are not the decisions referred to the LLC and eventually, to the First Respondent.
21. Further, it is erroneous for the First Respondent to adopt the TCC’s decision willy-nilly since that will offend the principle of first in time, first in right between the Appellants and the Second Respondents as stated in Rahari v Tropical Greens Co Ltd [2021] SBHC 21 and Kaki v Kimisi [2014] SBHC 80. In Kaki v Kimisi (supra), Faukona J (as he then was) made these profound statements (at paragraph 11):
    • “Before I comment on the regimes provided under the Acts, it is my opinion that there can be no more than one Chiefs' hearing concerning the same litigants and the same land. One hearing is enough and should one party aggrieved with a determination a reference case be filed with the appropriate Local Court.”
22. In Rahari v Tropical Greens Co Ltd (supra), the court was confronted with the issue of which chiefs’ decision between the same litigants and the same land should be accepted. In rejecting the latter decision, Keniapisia J stated (at paragraphs 8 – 10):
    • “8. There is a further reason I will ignore the second unilateral MHC purported decision. That the unilateral purported decision run foul against the principles of “first in time, first in right” and “funtus officio”. I used the same principles in a similar case in Isabel.
    • 9. The former principle is an equity maxim in latin described as “qui prior est tempore potion est ture” It simply means he who is first in time is first in right or applied to the facts here – the JCP decision was first in time and has first in right to be accepted over the single unilateral purported decision of MHC.
    • 10. The later principle is a latin phrase meaning, a Court or tribunal no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished. The same Court or tribunal cannot make another decision or even alter the records of its proceeding to alter its findings. What the MHC did subsequently was illogical. There must be a control over what chiefs do, when it is so illogical. So I apply the principles of law above to adopt the JCP decision over the unilateral MHC decision.”
23. On the basis of those cited authorities, I will also reject the submission to accept the VCC’s decision. The Second Respondents submit that they are not a party to that dispute. That submission is unchallenged. Therefore, in my view, the First Respondent cannot be invited to consider that decision other than the decision of the BCC. To do so would be prejudicial and a grave denial of the Second Respondents’ right to be heard in the preceding customary courts or tribunals established under the Local Courts Act.
24. For the TCC’s decision aforementioned, the BCC’s decision complies with the first in time, first in right principle. If the First Respondent or this court accepts the TCC’s decision, it would offend the law prescribed in Rahari v Tropical Greens Co Ltd (supra).
25. I do not think this ground would take this matter any further given its frivolity. This ground is also dismissed.

Ground 6

26. This ground concerns the failure of the First Respondent to consider res judicata as applicable to the parties in the present proceeding. The Appellants aver that the Second Respondents were related by blood and have tribal connections to a losing party in two previous chiefs’ settlements, respectively the VCC in 2017 and the TCC in 2020. By the authority of Talasasa v Paia [1980-1981] SILR 93, the First Respondent should have decided this case in favour of the Appellants if res judicata was considered.
27. This ground in my view must also be dismissed on the basis that res judicata was not raised before the First Respondent in order to allow the parties to prove such blood and tribal connections determinative for res judicata. In Afu v Farobo [1990] SBHC 51, the court stated that res judicata is invariably a question of mixed fact and law that the customary courts can consider and decide on a dispute.
28. Determining blood and tribal connections between the parties in a case, is a customary enquiry and deliberation. Whether the Second Respondents are related by blood or tribe to Abraham Zale and Rence Vagalo, is a matter outside of the function of this court. They should be raised before the customary courts so that evidence can be called and a decision is made on whether the Second Respondents should be bound by the previous court decisions. Nothing was placed before the First Respondent and for that reason, it cannot be properly raised at this court.
29. The Appellants cannot blame the First Respondent for not considering this issue at the first instance. The Appellants bear the onus to raise this at the customary courts. The Appellants cannot wait until to this court. Based on the reasons, it cannot be said a failure of the First Respondent for not doing so.
30. There is no error of law identified for this ground and it must be dismissed accordingly.

Orders of the Court

1. The appeal against the decision made by the First Respondent is dismissed.
2. The decision of the First Respondent is affirmed.
3. Costs of this appeal shall be paid by the Appellants to the First and Second Respondents, to be taxed if not agreed.

THE COURT
Hon. Justice Augustine S. Aulanga
PUISNE JUDGE