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Kutai v Lauringi [2021] SBLC 2; Land Case 28 of 2013 (8 April 2021)

IN MALAITA LOCAL COURT

AUKI MALAITA PROVINCE

SOLOMON ISLAND.

LAND CASE NO: 28 of 2013

IN THE MATTER OF: BUSUGANAREREDE PARCEL WITHIN LAND LAGWAEANO/ SIUBONGI

BETWEEN: MOVIN KUTAI OF MANAERE VILLAGE LUMABORA WARD 5 PLAINTIFF

AND: NELSON LAURINGI, 1^st DEFENDANT

WILSON APRIL FAFALE, and EZIKIEL NAFO 2^nd DEFENDANT

GRAHAM FAFALE 3^rd DEFENDANT

Preliminary Hearing

Date of Hearing: 8^th April 2021.

Time: 9: 49 AM.

Date of Ruling:

Introduction

On 25th July 2013 at Kakalano, West Fataleka, a chief settlement was organized by the Subea house of Chiefs between Nelson Lauringi’s party, and Movin Kutai’s Party.

Therefore, there was no proper settlement occurred. The chiefs just told the parties, that they have relied on the settlement that was held in 1997, the settlement was also conducted by the Subea House of Chief. According to that chief's settlement on 28th November 1997, the plaintiff’s father claiming that the part of Lumabora is overpassing the Taeloa River to the other side of the river, and there was a given portion of land in Siubongi. The outcome of that settlement by the Subea House of Chiefs, ruled as follows, that there is no such thing and is not true regarding the claim of the plaintiff’s father. The Siubongi land is owned by Nestor Lioa the primary right, and Ezekiel Nafo the Secondary right.

Without any proper chief’s settlement as quoted above, this case was referred to the local court by Plaintiff Movin Kutai on 7th of October 2013 and filed as case No: 28 of 2013.

Issue.

Whether the process of filing has satisfied the requirement provided in section 12 1, (a), (b), (c), 2 of the Local Court amended act (CAP) 1985.

Whether the Plaintiff has already been involved in the previous court cases over the land in dispute.

Whether the said land Busuganarerede was a different portion of land from Siubongi,

Whether the local court has already given its determination regarding the said Suibongi land which Busuganarerede parcel of land is within that was claimed by the plaintiff, which also involved the same parties.

Rule Apply

Local Court Amendment Act (CAP) 1985 Section 12 1, (a), (b), (c), 2.

The principle of res-judicata.

Application.

Whether the process of filing has satisfied the requirement provided in section 12 of the Local Court Amendment Act 1985. Through the preliminary hearing, the court carefully examines the statement and submission provided by the parties regarding the chief’s settlement that was supposed to be held at Kakalano on the 28th of July 2013. According to the statement of the first, second, and third defendant there was no proper settlement, the second defendant told the court that he wasn’t aware of any settlement that took place, the third defendant also stated that he managed to come to attended the settlement but when arriving at the venue nothing happen, no chiefs settlement was conducted.

As it is mentioned by the first defendant, and also from the submission of the plaintiff, the Subea House of chief’s secretary told them that they just relying on the other settlement which was held in 1997.

Whether or not the chief’s settlement that was held in 1997 is involving all parties in this case. Looking at the form 1 schedule an unaccepted settlement form, the parties involved in that chiefs settlement that was held in 1997 are, Nestor Lioa and Ezekiel Nafo the complainant, and Alick Fioimani, and Titus Fiurii the defendant.

This raised the other important question, which chief’s settlement do they all attended that includes the first defendant, or whether the first defendant just included because from the right that was given to him as the rightful owner of the Siubongi land. These are interesting questions for this court to determine.

Well, after considering the process of filing, it comes to the mind of the panel that a plaintiff is a person that is not satisfied with the information given by the secretary of the Subea house of chiefs, whereas the chief settlement that was referred to, is not in his favor. Even though the hearing was not proper, the chiefs gave their determination through the secretary. It means that the decision on the 1997 settlement still stands. Without the limitation of referring the dispute to the local court, the plaintiff has the right to lodge it to the local court.

As quoted above, regarding the joinder of the first defendant to this case, raised an important issue that needs to be answered. The chief settlement that the plaintiff based his lodgment upon to the local court is not involving the first defendant. So, where and how did the first defendant involved in this case. Whether it is from the right that was given to him by the Local Court regarding Siubongi Land.

The other important issue is whether the said land in dispute Busuganarerede is a separate portion of land from Siubongi. According to the plaintiff‘s claim, there was a given portion of land by the people of Siubongi- Lagwaeano tribe’s men within Siubongi Land. This claim is a factor in why this case is lodge in the local court and maybe why the first defendant is involved.

First, it is important to know whether the said land in dispute is within or a separate portion of land from siubongi. The reason is the land Siubongi is been dealt with in the Local Court on the 7th of June 1999. The case is between Joseph Teaga and Nelson Lauringi, according to the determination of the Local Court, Nelson Lauringi and his clan have right over Siubongi land, and Joseph Teaga is the rightful owner of Lagwaeano tribal land.

Through the statement of the parties and even their submissions, they confirmed that the said land in dispute Busuganarerede was within Siubongi Land.

Whether the plaintiff is been involved in the previous court case about the said land Siubongi. This is another important question that should be answered by this court. Through the document provided and also through cross-examination from the court to the parties, given the confidence to the court to deal with this important issue. On cross-examination, the court asked the plaintiff, did you witness in the previous court cases? The plaintiff told the court that yes my biological father by the name of Alick Fioimanu was a witness for Mr. Joseph Taega. According to the proceeding provided regarding the witness statement in the previous Local Court, late Alick Fioimanu claiming that he was blood-related to siubongi tribe, and anything from Siubongi and lagwaeano he understands very well. He mentioned what he knows about the land, practices, and people in that land that traveled from Siubongi to Lagwaeano.

But this court fails to see any claim from Late Alick Fioimanu that he is claiming a portion of land within Siubongi in his statement. With that, this court doubts the claim of the plaintiff regarding the given parcel of land in Siubongi land.

This raised an important issue regarding the principle of res judicata as it is stated:

“The principle of res judicata seeks to promote the fair administration of justice and honesty and to prevent the law from abuse. The principle of res judicata applies when a litigant attempts to file a subsequent lawsuit on the same matter, after having received a judgment in a previous case involving the same parties”.

The principle of res judicata applies only to the parties involved or partaker in the previous court cases, whether you are a witness or complainant, or defendant the decision is binding you to raise again the same issue with the same parties involved.

Whether the determination of the chiefs settlement has the power to supersede the court of law’s decision, according to schedule 3 (1) of the Constitution provides the power for the chiefs to determine the customary truth or law, as it stated:

“The chiefs are the repository of customary truth or law, any decision made by them in the absence of a referral to the Local Court must be accorded the same status as law in our jurisdiction. In this instance, therefore, where the decision had gone in favor of the plaintiff and a fortiori where no referral had been made under the Local Court act by the defendant that must be accepted as the law until it is over turned by a Local Court”.

It is very clear that the power of the chiefs is limited, their power is valid until it is turned over by the Local court. The decision made by the court of law has the authority over the chief's settlement regarding the same land or issue in dispute with the same parties involved.

This court understands that, if the portion of land claimed by the plaintiff is not connected to the land that was been determined by the previous court of law, then this court will never hesitate to hear the disputed matter.

This court also taking into account some of the issues raised by the parties regarding the said land in dispute. All of them are very important issues that need restoration. But this court mainly focused on the plaintiff’s case regarding the process and the administrative issues of bringing a case to the local court.

Conclusion

After analyzing all the issues raised and discussed in the preliminary hearing, the Malaita Local Court confirmed that the said land in disputed Busuganarerede is within the land Siubongi that been determined by the previous Local Court by the same parties involved, and this court understand that they will not hear again the same land with same parties involving. This appears that the principle of res judicata is applied for the Plaintiff and the first and second defendant of this case.

Following the findings, the Malaita Local court gives its order.

Order.

1. That this case, case No: 28 of 2013 is now withdrawn from the Local Court.
   
2. No order of cost.
   

Signe and endorsed this day: / / 2021

Eddie Wasi: ___________________________ Vise President

Nelson Ne’e: _____________________________ Member

Ately Ramo: ___________________________ Member

Wesley Ramo: ______________________________ Clerk

Right to appeal is within 3 Months of this date.