IN THE WESTERN CUSTOMARY LAND    APPEAL      COURT

WCLAC Case no: 12 of 2017

IN THE MATTER OF: ALEKANA CUSTOMARY LAND (APPEAL FROM CHOISEUL LOCAL COURT)

AND

ISAIAH KAMAPOGE
Appellant
[Representing Alekana Tribe]

AND:

Choiseul Local Court
1st Respondent

AND:	
	
BILLY TUDUBATU
JAMES ALEPIO
2nd Respondents
[Representing the Kubobangara tribe]

Date of hearing:			June, 24th 2019 
Judgment verbally delivered:		June, 25th 2019
Written Judgment delivered: 		June, 25th 2019

JUDGMENT

Introduction
1.	This is an appeal against a Choiseul Local Court decision dated 30th of March 2017. The appellant being aggrieved by the said decision, now appeal before the Western & Choiseul Customary Land Appeal Court (WCLAC).

2.	The appellant’s party is represented by Mr. Philip Bavare as spokesperson. Mr. James Alepio appear as spokesperson for the respondents.

3.	All parties to this WCLAC sitting were served by way of notice to attend the hearing at Gizo Magistrates’ Court on 24th of June 2019 without failed. In responding upon the notice, both parties appear.

Factual matrix
4.	On 31st March 2017, the Choiseul Local Court handed down a preliminary ruling withdrawing second defendant (now appellant) as a party from the Local Court case 01 of 2006, for reason that the plaintiff (now respondent) and their party had reached an agreement and wish to settle their differences within themselves. Consequently, the appellant (then second defendant) was removed as a party to the CLC case 01 of 2006.

5.	The first defendant (now appellant) in WCLAC case 10 of 2017, Mr. John Garaba, refused to reconcile or settle any difference and asked the court to proceed to full hearing with his case.

6.	The ruling on preliminary issue at Choiseul Local Court states:

This court considered all submission by both parties. And given that John Garaba did not want to cooperate with the intention of the other members of his tribe, the second defendant and the plaintiff; this court grant the application of reconciliation between plaintiff and the second defendant and others excluding first defendant John Garaba.
         
Therefore, this court shall proceed to hear, on what grounds the first defendant Mr. John Garaba should proceed with this matter without other members of the tribe.

7.	Subsequent to the ruling, the Choiseul Local Court proceeded and conducted a full-hearing between the plaintiff (now respondent) and Mr. Garaba (Defendant) which it later handed down its decision on 30th of March 2017.

8.	The decision of the Choiseul Local Court after full-hearing states:

The plaintiffs Mr. Billy Tudubatu and James Alepio are the rightful owner of Alekana Land.

Dates of ruling on preliminary issue[s] and judgment after full-hearing
9.	Before plunging into the core issue of this appeal, we must make known to parties that the date of ruling on preliminary issue and judgment after full-hearing does not reconcile with the proper court procedure. As apparent, the date of ruling being 31st March 2017 and judgment after full-hearing, 30th March 2017, seem to suggest that the full-hearing was conducted before the ruling on preliminary issue[s]. 

10.	With respect, it is our view that the dates are simply result of typing-error or an oversight on the part of the Choiseul Local Court Clerk or person[s] responsible for preparing the ruling and judgment. Nonetheless, we accept that the contents of both documents established that the ruling was done prior to the full-hearing, accordingly, we accept that it was done properly.

Grounds of appeal

11.	The appeal grounds are as follows:
i.	That this Local Court case is Funtus Officio which means that the Choiseul Local Court has already exercised its power of Jurisdiction by;
a)	Already declaring its ruling verbally therefore our party did not make representation in that Choiseul Local Court.
b)	Despite the verbal ruling which was recorded by the defendant in the Local Court, the Choiseul Local Court continue to rehear the case and made another written judgment in favour of the plaintiff of the Local Court.
c)	The Choiseul Local Court did not refer in its written judgment the verbal ruling which granted peace and reconciliation between both parties outside of the court.
d)	The Choiseul Local Court erred in continuing with the case with Messer’s John Garaba as the defendant because it is an abuse of Choiseul Custom as and in terms of landownership.

Submissions

12.	The appellant spokesperson’s submission was essentially that the Choiseul Local Court was functus Officio because the issue before them had already been determined by the earlier ruling which was made prior to judgment after full-hearing.

13.	The spokesperson for the respondents, Mr. Alepio submitted that the matters raised in the appeal are all point of law; hence, he is not in a position to respond but leave it to the court to deliberate, interpret and decide on.

Discussion

14.	We intend to deal with appeal points 1 (a), (b), (c) & (d) together as all of them stems out from the core issue of law raised, Functus Officio. 

15.	To begin with, “Functus Officio” means [Having discharged his duty] once a magistrate has convicted a person charged with an offence before him, he is functus officio and cannot rescind the sentence and retry the case. It also define as something which once had life and power but which now has no virtue whatsoever.

16.	The Choiseul Local Court ruling was done out of a consent settlement between both parties who are subject of this appeal, and or the current appellants (then second defendant) and respondents (then plaintiffs). The copy of minutes of settlement meeting and letter seeking withdrawal from Local Court case 1 of 2006 were all tendered to Choiseul local court and are part of the evidences before us. However, Mr. Garaba (then first defendant) refused to settle and opted for full-hearing.

17.	Furthermore, we noted from the ruling, that the spokesperson for the appellant (then second defendant) Mr. Bavare submitted during Local court preliminary hearing that, any decision given by the Choiseul Local Court must be binding only to Mr. Garaba himself and not the other members of their Alekana tribe. We intend to infer that this submission was made in referring to any possible full-hearing between the respondent (then plaintiff) and Mr. Garaba (first defendant). Hence, affirmed his position to withdraw as second defendant in CLC no. 01 of 2006.

18.	Quite frankly, Mr. Garaba intend to proceed by himself in his own authority, for himself and his own interest. We also question why the Choiseul Local Court allowed him to proceed on his own accord without the authority of the tribe or reigning chief, because as obvious, he was merely a spokesperson for the Alekana tribe, who are now represented by the appellant in this case and spokesperson, Mr Bavare. A spokesperson cannot individually challenge ownership of such a large portion of land for himself, this is totally against the Choiseul custom and customary land tenure system. The Choiseul Local Court should have been refused proceeding to full-hearing until confirmation of authority of Mr. Garaba to act as spokesperson from his tribal chief.

19.	However, with reason unknown, the Choiseul Local Court allowed him to proceed to full-hearing on the basis that he only represent himself and not the Alekana tribe or the tribal chief and members, as he normally did at previous chief hearing[s]. It is obvious to state that Mr. Garaba’s interest has become “individualised” at the Choiseul Local Court hearing.

20.	With certainty, we can only conclude that the party that fully and honestly represent the Alekana tribe is the current appellant in this proceeding, with Mr. Bavare as the spokesperson. This party has the support of the reigning chief Mr. Isaiah Kamapoge and tribal members of Alekana tribe.

21.	For reason that the appellants had voluntarily and or by consent withdraw themselves and their Alekana tribe as party from the Choiseul Local Court case no. 1 of 2006, we do not think it is proper for them to come before WCLAC as being aggrieved, because as apparent, they were not party to the Choiseul Local Court judgment dated 30th of March, 2017. Therefore, they have no locus standi to bring any appeal against that said decision. 

22.	We do not see any issue of functus officio arise in such a case at hand, when they had voluntarily withdrawn as party and were not named party to the CLC case no. 1 of 2006 Judgment. In essence, the effect of withdrawal does not affect the whole CLC case 1 of 2006, rather, it only confined to withdrawal of appellant (then second defendant) as a party.

23.	We acknowledge that had not for the Choiseul Local Court ruling, the appellant and his tribe would’ve remained at Taro to proceed with full hearing. However, they have foreshadowed this to occur when their spokesperson, Mr Bavare submitted that any decision should be binding only on Mr. Garaba.

24.	The proper remedy for the appellant was to appeal the Choiseul Local Court ruling. He chose not to pursue the proper course, even if he wishes to now, the time limitation has elapsed.

DECISION:

25.	Upon considering what we have discussed earlier in this Judgment we make our decision as follows: -
1.	Appeal Dismiss in its entirety.
2.	The Choiseul Local Court Decision dated 30th of March 2017, is upheld.
3.	Appellant at liberty to return to proper customary avenue and challenge the customary ownership of Alekana Land.
4.	Parties bear their own costs.
5.	Right of appeal within 3 months applies to any aggrieve party.

Dated this 25th day of June 2019

Perfected and Signed by: Chief Eric K. Ghemu	………………………..	(President) 

Willington Lioso	………………………..	Justice

Francis M Molia	………………………..	Justice 

Tastre Nutara Ataria………………………..Justice

Wilson Liligeto	………………………..	Justice

Leonard B. Chite	……………………….. Clerk of CLAC 

THE COURT