Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Dalipanda v Varisi House of Chiefs [2023] SBHC 125; HCSI-CC 358 of 2021 (14 December 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 358 of 2021

BETWEEN

STEPHEN KIDO DALIPANDA
(Representing himself and members of the Kakuvula Tribe of South Choisuel, Choisuel Province)
Claimant

AND:

VARISI HOUSE OF CHIEF
First Defendant

BEN PITAMAMA, JONATHAN TAKUBALA, JAN PITAKAJI, TENDER SOKENI AND EMILY SARIKI
(Representing themselves and the Saqinaleke Tribe of South Choisuel, Choisuel Province)
Second Defendants

Date of Hearing: 5 June & 18 August 2023
Date of Decision: 14 December 2023

Mr John Taupongi for the Claimant
No Appearance for the First Defendant
Mr Lionel Puhimana for the Second Defendants

RULING

Bird PJ:

1. The Claimant filed a Claim – Category C on 1 July 2021 seeking a number of declaratory orders and a quashing order. The Second Defendants have filed their defence and sworn statements in support. The First Defendant had not taken part in the proceeding and did not file any documents. A chapter 15 conference was conducted by the court on 5 June 2023 and further submissions were received from the respective parties on 17 and 18 August 2023.
2. During a chapter 15 conference, the court is required to determine whether or not the matter can proceed to trial under rule 15.3.21 of the Solomon Islands Courts (Civil Procedure) Rules 2007. On that note, the four requirements under rule 15.3.18 of the rules must be satisfied by the Claimant. That rule provides:
   • r.15.3.18The court will not hear the claim unless it is satisfied that:
   • a) The claimant has an arguable case;
   • b) The claimant is directly affected by the subject matter of the claim;

c) there has been no undue delay in making the claim; and

d) there is no other remedy that resolves the matter fully and directly.

The case for the Claimant

3. In this case, Mr Taupongi of counsel for the Claimant argues that his client has an arguable case. His client’s case is based on the doctrine of res judicata as contained in paragraphs 42 to 45 of his client’s statement of case. It is the case for the Claimant that the First Defendant is estopped by the doctrine of res judicata from hearing any dispute in which the Second Defendants’ Saqinaleke tribe are claiming a portion of Kakuvula land from the Claimant’s tribe.
4. The reasons behind that contention are that the Kakuvula tribe and the Saqinaleke tribe were parties to Native Court No. 9/62 by the Babatana Native Court. Further that the Native Court’s decision dated 6 November 1962 is a final decision between these two tribes. The land in dispute between the parties was Kuki Hill and Kakuvula land. The Native Court at the material time awarded ownership of Kuki Hill to the Saqinaleke tribe and acknowledged ownership of Kakuvula land to the Kakuvula tribe.
5. From the above scenario, it is further the case for the Claimant that the Second Defendants are re-agitating the same issue of ownership already decided by the Native Court in 1962 to the First Defendant. They are estopped by virtue of the doctrine of res judicata. Mr Taupongi cited the case of Majoria v Jino [2007] SBCA 20; CA-CAC 36 of 2006 as the authority on the issue of the doctrine of res judicata.
6. It is submitted by Mr Taupongi of counsel that the Claimant has an arguable case in that this court can only deal with that issue during trial and not during a chapter 15 conference stage. It is also argued by Mr Taupongi that his client is not a party to the case before the First Defendant and therefore, he could not refer the decision by them to the Local Court under section 12 of the Local Courts Act (cap 19). The only avenue for him is to file for judicial review to this court.
7. In relation to the second requirement under r. 15.3.18 (b) of the rules, it is argued by Mr Taupongi of counsel that the decision of the First Defendant dated 28 April 2021 included part of his client’s Kakuvula land and therefore, his client is directly affected by the subject matter.
8. In relation to the third requirement under r. 15.3.18 (c) of the rules, it is further submitted by Mr Taupongi of counsel that the decision of the First Defendant was dated 28 April 2021. His client’s Claim – Category C was filed on 1 July 2021, just about two months after the decision. It is therefore submitted that there is no undue delay in the filing of this proceeding by the Claimant.
9. As per the requirement under r. 15.3.18 (d) of the rules, it is submitted by Mr Taupongi of counsel that there is no alternative remedy for the Claimant but to file for judicial review. It is submitted by counsel that under normal circumstances, his client’s primary right is to refer the dispute to the Local Court pursuant to s. 12 of the Local Courts Act. He is unable to utilise that right because he and his tribe is not a party to the First Defendant’s decision of 28 April 2021. It is submitted that the Claimant had raised objection to the First Defendant in writing and also in person but his objection was overruled and the First Defendant continued to hear the dispute and made a decision that had infringed upon his tribe’s rights. It is therefore submitted that his client has no alternative remedy but to file this judicial review claim.

The case for the Second Defendants

10. From my reading of submission by Mr Puhimana of counsel for the Second Defendants, the contested issues during the chapter 15 conference would be requirements (a) and (d) of r. 15.3.18 of the rules. It is submitted by Mr Puhimana of counsel that quite apart from the 1962 decision and the First Defendant’s decision of 28 April 2021, there are other decisions that are relevant to this proceeding.
11. The cases mentioned by the Second Defendants are the Tepazaka Council of Chiefs Land Case No. 3 of 2019 between Kapisi and Kakuvula tribes. The Second Defendants’ tribe was not a party to that case. In any case, it was obvious from that case that Kakuvula tribe’s motherland was located inland. The court was referred to exhibit marked ‘EPS9’ and ‘EPS10’ of the sworn statement of Emily Pita Sariki filed on 4 November 2021. According to ‘EPS10’, Kakuvula tribal land is marked “TCC ‘B”.
12. Another relevant decision is the Batava Council of Chiefs - Civil Case No. L3/2013 dated 18 November 2015. That case dealt with Kakuvula motherland and the court was referred to exhibit ‘EPS 7’ and the map on exhibit ‘EPS 8’. The Kakuvula motherland is also located inland.
13. Then there came the First Defendant’s decision dated 28 April 2021 (the subject of this proceeding) between the Saqinaleke and the Kapisi tribes. The First Defendant determined in that case that the Saqinaleke tribe and the Kapisi tribe are two separate tribes. They further determined that Saqinaleke land belongs to the Saqinaleke tribe. The Saqinaleke tribe had gifted a plot of land within their land boundary to the Kakuvula tribe referred to as Sioro land.
14. It is further submitted by Counsel Mr Puhimana that with the various decisions alluded to in paragraphs 11, 12 and 13 above, the Claimant have failed to demonstrate an arguable case in this proceeding. Also in view of those various decisions, there is an alternative remedy that could resolve the dispute fully and directly and that is through the land court system.

Discussion

15. The main contention of the Claimant in this proceeding is the doctrine of res judicata. Mr Taupongi for the Claimant argues that armed with the decision in Native Court No. 9/62, the issue of ownership over Kakuvula land is res judicata between his client and the Second Defendants. Therefore they are not entitled to re-agitate that issue before the First Defendant. Consequently, he seeks that the decision of the First Defendant dated 28 April 2021 be brought before this court and be quashed.
16. With that in mind, I have perused the decision of Native Court No. 9/62. That case was between the Kakuvula tribe and the Saqinaleke tribe. Having read the opening statement as well as the decision on the last page, the subject land in dispute was Kuki Hill. There is nothing in the exhibit marked ‘SKD2’ and ‘SKD3’that expressly stated that the dispute was in relation to Kakuvula land. It was only in passing that the said court made a comment about Kakuvula land. It is also noted that the boundary of Kakuvula land was not delineated in that decision because that was not the land in dispute.
17. In the Tepazaka Council of Chiefs Land Case No. 3 of 2019 between Kapisi and Kakuvula tribes, the Kakuvula motherland was located inland. In the Batava Council of Chiefs - Civil Case No. L3/2013 dated 18 November 2015, the Kakuvula land was also located inland. Comparing the two maps in exhibit marked ‘EPS 8’ and ‘EPS 10’ to the sworn statement of Emily Pita Sariki, the name Kuki is very far from TCC B. Kuki is the land in dispute in Native Case No. 9/62 and TCC B is the location of Kakuvula motherland. These two documents do not connect in relation to their locations.
18. From the above analysis, it would be obvious that this court will be faced with a real challenge on the issue of boundary and location of the disputed land. The Native Court decision in 9/62 will not assist this court in any way because the boundary of Kakuvula land was not determined in that case. The decisions by the Tepazaka Council of Chiefs in Land Case No. 3 of 2019 and the decision of the Batava Council of Chiefs - Civil Case No. L3/2013 dated 18 November 2015 will just add more confusion as to the location and boundary of Kakuvula land. The issue of ownership, the issue of delineation of boundary and the issue of the location of Kakuvula land must be determined by the relevant land courts before any further claim could be brought before this court. Those issues were never determined by the Native Court in Native Court No. 9/62 and the doctrine of res judicata will not assist the Claimant.
19. Owing to the above discussion, I am sufficiently satisfied that the Claimant has proved the requirements under r. 15.3.18 (b) and (c) of the rules. On the same token, I am not satisfied that the Claimant has sufficiently proved requirements (a) and (d) of the rules. Consequently, I strike out the Claimant’s Claim- Category C filed on 1 July 2021 pursuant to rule 15.3.20 of the rules. I order cost against the Claimant.

THE COURT
Justice Maelyn Bird
Puisne Judge