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Dokama v Western and Choiseul Customary Land Appeal Court [2025] SBHC 78; HCSI-CC 502 of 2018 (21 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 502 of 2018

BETWEEN:

CHIEF BILLY PAPAQUI DOKAMA
(Representing Qoza tribe)
Appellant

AND:

WESTERN AND CHOISEUL CUSTOMARY LAND APPEAL COUT

First Respondent

AND:

EZRA KUKUTI & OTHERS
(Representing Kalesuka tribe)
Second Respondents

Date of Hearing: 7 May 2025
Date of Ruling: 21 May 2025

Mr B L Dalipanda for the Appellant
Mr H Lapo for the First Respondent
Mr W Rotumana for the Second Respondent

RULING ON APPEAL

AULANGA; PJ:

1. This is an appeal from a decision of the Customary Land Appeal Court (CLAC), hereinafter referred to as the First Respondent, brought under section 256(3) of the Land and Titles Act (Cap. 133). The Appellant raises seven grounds of appeal, as outlined in the amended notice of appeal filed on 20^th November 2019. In fact, appeal grounds two, three and four should be merged, as appeal ground four addresses the consequential relief for those grounds.
2. At the outset, I remind myself that this Court’s appellate jurisdiction is limited and may only hear matters as prescribed under section 256(3) of the Land and Titles Act (Cap 133).
3. Section 256(3) of the Land and Titles Act states:
   • “An appeal shall lie to the High Court only on a point of law or failure to comply with any procedure prescribed by any written law.” (underlined mine).
4. This provision strictly limits an appeal from the CLAC to the High Court on a point of law or a failure to comply with any procedure prescribed by written law. It does not extend to reviewing or re-evaluating the factual findings made by the CLAC. Any appeal ground that involves questions of customary facts or mixed fact and law, without identifying a legal error, cannot be heard by this Court.
5. 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. Unless the Appellant can clearly demonstrate one of the two requirements in section 256(3) above, the decision of the CLAC is conclusive, and will not be subject to appeal.

Grounds of appeal

6. In the amended notice of appeal, the following grounds are the subject of this appeal:
   • “1. The First Respondent had erred in fact and law when it did not take into account the fact that the Second Respondents’ boundary of the disputed land had encroached into other lands belonging to other people and or other tribes.
   • 2. The First Respondent was not impartial in dealing with the Appellant’s appeal:
   • (i) the named Second Respondent (Kukuti) and the Secretary to the First Respondent were residing in the same Rest House at Taro Choiseul Province before the hearing of the Appellant’s appeal in Gizo on 30^th November 2018.
   • (ii) The said Ezra Kukuti and the Secretary to the First Respondent were seen in each other’s company at Taro, Choiseul Province before the hearing of the Appellant’s appeal in Gizo.
   • (iii) At those times, the Secretary to the First Respondent was on court circuit in Choiseul Province and was residing in the same Rest House that Mr. Kukuti was also residing in.
   • 3. In view of the above circumstances, there is a possibility of perceived bias by the Choiseul/Western Customary Land Appeal Court when hearing the Appellant’s appeal.
   • 4. The First Respondent had erred in fact and law when it made a determination in favour of the Second Respondents. The said court had made the said determination against the weight of evidence presented before it by the respective parties.
   • 5. The First Respondent had erred in fact and law when it did not take into account the inconsistencies on the Second Respondents’ genealogies that were included in the Second Respondents’ submission to the Court.
   • 6. The First Respondent erred in fact and law when it failed to consider the evidences before it that the Second Respondents’ tambu sites were located outside of the original disputed land of Zao land.
   • 7. The First Respondent erred in fact and law when it failed to consider the evidences regarding the inconsistencies of the Second Respondents’ map presented before it”.

Appeal ground one

7. This ground of appeal contends the First Respondent failed to consider that the Second Respondents' boundary had encroached into other tribal lands. While the specific names of these lands were not mentioned in the Appellant's submission, it is assumed that this argument is based on the reference made at paragraph 6 of the First Respondent’s decision.
8. On the face of this ground, it raises a question of fact. The question of whether the Second Respondents’ land has encroached into other tribal lands, is a customary matter that falls outside the scope of this Court’s appellate jurisdiction. However, this issue has been considered at paragraph 31 of the First Respondent’s judgment where it was decided that there was no overlap or encroachment of the Second Respondents’ boundary to other neighbouring lands as claimed by the Appellant. For that reason, the issue of boundary encroachment has already been decided by the First Respondent and cannot rightly be an issue to bring to this Court.
9. In any event, the First Respondent has already decided that there was no boundary issue between Sikisapunu and Zao customary land, but a competing claim on whether the disputed land was Sikisapunu or Zao. This means the First Respondent was satisfied and had decided that the dispute before it was not about the boundary between these two customary lands, or for a clear demarcation of the boundary of the disputed land with other neighbouring lands, but about the existence of either Sikisapunu or Zao in the disputed area. Hence, by bringing this customary matter, that is, the issue of boundary dispute or boundary clarification for reconsideration to this Court on appeal, that certainly runs afoul to section 256(3) of the Land and Titles Act.
10. Furthermore, the Appellant claims that this ground raises a question of mixed fact and law. Generally, questions of mixed fact and law are outside the appellate jurisdiction of this Court unless the Appellant can point to a legal error committed by the First Respondent.
11. I have read the Appellant’s submission and the First Respondent’s ruling; I could not find any legal error committed by the First Respondent in the exercise of its statutory powers under sections 255(4) and 256(2) of the Land and Titles Act when it found that there were no boundary encroachments as claimed by the Appellant. As this ground raises a question of fact that requires customary evidentiary considerations on the purported boundary encroachments, it therefore falls outside the scope of the Court’s jurisdiction. This ground is dismissed.

Appeal grounds two, three and four

12. In summary, these three grounds concern the alleged lack of impartiality of the First Respondent in the adjudication of this matter at the Court below due to shared accommodation and interactions between the Secretary of the First Respondent and the named Second Respondent, Mr. Kukuti. The Appellant made reference to the Secretary of the CLAC was seen in company of Kukuti immediately before the hearing. The Appellant claims these interactions suggest bias on the part of the First Respondent, which may have influenced the outcome of the case.
13. These grounds, in my view, raise the issue of lack of impartiality, which is linked to procedural fairness and natural justice. Questions of appearance of bias or actual bias by a member of the CLAC in a proceeding, are questions of law. Hence, for these grounds, this Court has jurisdiction to hear under section 256(3) of the Land and Titles Act. The Appellant, therefore has the burden to produce evidence to prove the allegations in Court.
14. During the hearing, counsel Dalipanda for the Appellant conceded that the Appellant did not provide any evidence by way of sworn statement to prove this allegation which is unfortunate. Further, there was no evidence from the Appellant to substantiate the allegation that the CLAC members were residing in the same Rest House used by the Second Respondents’ party during the hearing, or that such interactions by the Secretary of the CLAC and Kukuti had influenced the outcome of the case. There is absolutely no evidence or other supporting material on record that could support a finding of apparent or actual bias which is detrimental to the challenge brought by the Appellant for these grounds.
15. Another concerning matter is that the Appellant failed to raise an objection against any sitting member of the First Respondent even though they had the opportunity to do so at the hearing in Gizo.
16. Raising an objection at the time of the hearing, rather than on appeal, is critical to preserving the integrity of the Court’s process. It is important for the Appellant’s party, at the start of the hearing, to raise any objection before the First Respondent rather than to wait for the appeal court if they perceive the hearing would be unfair. Observing the Secretary of the First Respondent had interacted with one of the disputing parties to the matter may potentially be a good ground for recusal of a CLAC member. However, that has to be made at the first instance during the hearing so that evidence can be called and a decision be made by the relevant Court.
17. The importance of raising the objection at the hearing, rather than on appeal, is already a settled law in this jurisdiction as decided by the Courts. An example is the decision in Puluhenua v Dorawewe [2011] SBHC 94, where Faukona J (now DCJ), at paragraph 22, echoed:
    • “The appellants were afforded a chance; they failed to object to the President presiding. Why wait until this Court? First opportunity was accorded and yet failed to utilize the chance. It's a horrific excuse to say it was only after the hearing that they knew about it. That is not good enough. It is expected people in nearby villages close to the land knew each other well. It's not a country but a small area”.
18. As earlier alluded to, the burden lies with the Appellant to establish, on the balance of probabilities, the existence of the above stated circumstances that give rise to the reasonable apprehension of bias. In the absence of the requisite evidence, I find the Appellant has failed terribly to prove these grounds of appeal, and they must be dismissed.

Appeal ground five

19. This ground relates to the failure of the First Respondent to consider inconsistencies in the genealogical evidence relied upon by the Second Respondents which amounted to an error of fact and law. The Appellant in written submission, at page 9-11, referred to the different accounts in genealogy presented by the Second Respondents before the Batava Chiefs in 2012 and the Choiseul Local Court in 2018. The Appellant argues that differing accounts of genealogy in previous submissions represent inconsistencies that should have been considered by the First Respondent. Whether such omission amounts to an error of law as recognised under section 256(3) of the Land and Titles Act was not explained by the Appellant.
20. This ground, in my view, concerns the weighing and evaluation of customary evidence, which are not questions of law. They are factual issues within the jurisdiction of the First Respondent or the customary courts for that matter to resolve. This Court is precluded from deciding on customary matters, as held in Simbe v East Choiseul Area Council [1999] SBCA 9. Any deviation from this by this Court would amount to an abuse of the Court’s process as cautioned in Bavare v Nepara [2011] SBCA 22.
21. Furthermore, the Appellant has also failed to point out any procedural error regarding the handling of genealogical evidence as prescribed by any written law. By this omission, this ground lacks any merit and is dismissed.

Appeal ground six

22. This ground raises the failure of the First Respondent to take into account customary evidence that the sacred sites of the Second Respondents were located outside Zao land, being the disputed area. The Appellant asserts that such failure to show the sacred sites was evident during a site survey conducted by the parties at a ridge in Sikisapunu land. This, as averred by the Appellant, amounts to an error of fact and law which requires this Court to correct the findings made by the First Respondent.
23. The problem with this ground is that no error of law was identified. A cursory view of this ground in my view raises matters of customary deliberations and findings that are outside the appellate jurisdiction of this Court. This Court’s appellate jurisdiction provided under section 256(3) of the Land and Titles Act is limited and will not undertake any re-evaluation of customary evidence to correct any location of the sacred sites on the disputed land for the purpose of overturning the decision of the First Respondent. The First Respondent’s decision on this is final and cannot be questioned or overturned on appeal by this Court.
24. Further, the question of whether that evidence was properly weighed and assessed by the First Respondent, is not a question of law. It is a question of fact. For this ground, I do not see any perverse finding made by the First Respondent that raises a question of law which may invoke the jurisdiction of this Court.
25. Since this ground raises a question of fact and matters that require customary deliberations, it is therefore outside the ambit of this Court’s jurisdiction pursuant to section 256(3) of the Land and Titles Act, and must be dismissed.

Appeal ground seven

26. This ground concerns the failure of the First Respondent to consider inconsistencies in the maps relied upon by the Second Respondents. This ground is similar to appeal grounds, one, five and six. Again, this ground raises a question fact, that is, the task of evidence evaluation of maps presented to the First Respondent.
27. Issues pertaining evaluation of evidence of the maps tendered during customary landownership disputes fall within the ambit of the customary courts established under the Local Courts Act and the statutory function of the CLAC under the Land and Titles Act. For this ground, the Appellant did not point out that the failure of the First Respondent to consider the inconsistencies of the map of the Second Respondents has breached any procedure prescribed by a written law for admission of maps during the hearing, that ought to be followed by the First Respondent. Furthermore, the Appellant has failed to point out any error of law (whether in substance or procedure) that shows the First Respondent had misapplied the admission of the maps relied upon by the Second Respondents by reason of the inconsistencies.
28. All in all, the question of whether or not the purported inconsistencies in evidence were properly considered by the First Respondent, is not a legal issue but rather a factual one. As this Court’s jurisdiction under section 256(3) of the Land and Titles Act is limited, it cannot lend its arms to re-evaluate customary evidence brought herein by the Appellant for this ground. For these reasons, this ground is therefore dismissed.

Orders of the Court

1. Appeal is dismissed.
2. The decision of the First Respondent dated 30^th November 2018 is upheld.
3. Costs of this hearing shall be paid by the Appellant to the First and Second Respondents on a standard basis.

THE COURT
Hon. Justice Augustine Sylver Aulanga
PUISNE JUDGE