Dika v Somana [2003] SBHC 75; HC-CC 208 of 2002 (29 October 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 208 of 2002

SELWYN DIKA (REPRESENTING THE MAMARA TRIBE)
AND CASPER BANA (REPRESENTING THE ETINGI TRIBE)

V.

DAVID LENGA SOMANA (REPRESENTING HIMSELF AND THE ETI ETI TRIBE)
AND ISABEL TIMBER COMPANY LIMITED AND THE ATTORNEY GENERAL

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Date of Hearing: 20^th August 2003
Date of Judgment: 29^th October 2003

G. Suri for the Plaintiffs
A. Nori for the first Defendant
J. Apaniai for the second Defendant
F. Waleanisia for the third Defendant

PALMER J.: By Notice of Motion filed 8^th April 2003 the first Defendant seeks orders inter alia, to require the first Plaintiff to refer to the Isabel Local Court disputes over (a) the boundaries of LR 674 (Eti Eti land) and LR 675 (Mamara land) in Isabel Province; and (b) the authority over the said Mamara land, as required by section 12 (2) and (3) of the Local Court Act within 14 days failing which the first and second Plaintiffs’ action be struck out.

The first Defendant submits he has right to take up before the Chiefs Committee pursuant to the Local Courts Act (Cap. 19), issues pertaining to the validity and effect of the “will” made by Margaret Madi in 1974. He says that title over Mamara land was bequeathed to the Eti Eti clan under that “will”. He also says that a referral had been made to the Kia House of Chiefs (“KHC”) and a decision delivered on 14^th January 2003 (“the Chiefs Decision”). The KHC considered the effect of the said “will” and held inter alia, that (i) the Mamara land had been transferred to the Eti Eti clan in 1974 under that “will”, (ii) the boundaries of Mamara land transferred were the same boundaries earlier agreed to by the elders of Kia in 1924 and marked by N.S. Herfman, and (iii) Hellen Kalahi, the mother of Selwyn Dika (“Dika”) held only conditional rights over the said land subject to the control and direction of David Lenga Somana (“Somana”).

The first Plaintiff on the other hand submits that all relevant issues sought to be determined before the KHC had already been addressed and dealt with by the Isabel Local Court in Selwyn Dika and Others v. David Lenga Somana^[1] (“the Rakata Baitfish Case”). Those issues included the validity of the will, its effect, issues of rights of representation between the parties and boundaries. They rely on the affidavit in support filed by Selwyn Hopkins Dika on 6^th August 2003 in particular paragraphs 5 – 12 in which Dika had deposed that issues pertaining to the “will”, its effect and rights of representation had also been dealt with by the Local Court in its decision of 20^th August 1994.

Regrettably the application of the first Defendant to pursue the issue of a dispute over boundary between Mamara land and Eti Eti land and rights over Mamara land has been misconceived. Those issues had been overridden by the Order of Stay issued by me as Judge of Appeal sitting alone in Civil Appeal Case Number 3 of 2003 between Selwyn Dika and Casper Bana v. David Lenga Somana and Others, judgment delivered 16^th May 2003 (“CAC 3/03”). At page 7 I said:

“The inevitable conclusion reached is that any further proceedings in relation to the disputed area of land between the east side of Fufuana River to Ghozi, in the High Court Civil Case No. 208 of 2002 between the parties hereof must be stayed.”

I had earlier ruled in High Court Civil Case No. 208 of 2002^[2] (“HCSI-CC 208/02”) that the Rakata Baitfish Case did not deal with the issue of the inland boundaries of Rakata land. Dika appealed that finding to the Court of Appeal of Solomon Islands relying on the doctrine of issue estoppel as prohibiting the court from dealing with the issue of ownership and inland boundaries over Rakata land. Dika maintained that those issues had been finally determined by the Isabel Local Court in the Rakata Baitfish Case. Dika had also applied for stay of any further proceedings pertaining to the issues of ownership and boundaries in HCSI-CC 208/02 pending determination of the appeal. He submitted that the outcome of the matter on appeal would have direct bearing on those matters. He argued that if the Court of Appeal should rule in his favour that would bring to finality issues of boundaries and ownership of Rakata land as between the parties. Mr. Nori for the first Defendant had sought to argue that no orders of stay should be granted as issues of ownership were quite distinct and separate and that the first Defendant should not be deprived of his right to commence a land dispute case under the Local Courts Act. I refused the application of the first Defendant on 16^th May 2003 and ordered a stay. I was satisfied that if the Court of Appeal should rule in favour of the first Plaintiff’s appeal, that would effectively bring those matters to finality. That order for stay affects the matters raised in paragraphs 1(a) and (b) of the Notice of Motion of the first Defendant filed 8^th April 2003. There are arguable issues of law raised in the Notice of Appeal in CAC 3/03 which cannot be brushed aside by this Court pending determination before the Court of Appeal. It would be a great waste and a fruitless exercise to find out later that the Court of Appeal had ruled in favour of Dika.

On the other hand, if the Court of Appeal should dismiss the appeal of Dika that would leave wide open the question of ownership over Mamara land and its boundaries. That would then clear the way for the parties to fight it out afresh commencing with the chiefs committee under the Local Courts Act. The course of action sought to be taken by the first Defendant in making a referral to the Chiefs Committee under the Local Courts Act would be the right way to go. Unfortunately that is all a bit premature at this stage. Whether that process may have to be repeated is a matter for argument when and if it should arise. For the time being, unfortunately it must be stayed pending outcome of the appeal to the Court of Appeal.

In my judgment as Judge of Appeal sitting alone in CAC 3/03 (ibid) I also held that the Order for Stay should not affect the area of land (“the 1989 Land”) which had been the subject of an earlier dispute between David Lenga Somana v. Joses Lote^[3] (“CLAC 4 of 1989”). I had held that the 1989 Land should be excluded from the orders for stay on the grounds that the Mamara Clan was not a party to that case and that the issue of the validity of the “will” in custom and its effect had not been addressed as between those two parties before in relation to that land. In the hearing before me in this case however, Mr. Suri pointed out that that finding or conclusion was not correct. Learned Counsel referred me to the affidavit of Dika filed 6^th August 2003 with particular reference to paragraphs 5 – 12 in which he claims that the validity and effect of the “will”, and rights of representation over the Mamara clan and land, had been discussed and determined by the Isabel Local Court in the Rakata Baitfish Case. I have taken time to read through the transcripts and decision of the Isabel Local Court in that case and concede that the issues regarding the validity of the “will and its effect, and issues of rights of representation of the Mamara Clan were raised, considered and determined by the Isabel Local Court in the Rakata Baitfish Case. Those I guess are matters which will also or should be raised in argument before the Court of Appeal in relation to the question of issue estoppel.

Initially I was under the impression that the area of land claimed by the Eti Eti clan to have been bequeathed to them under the “will” was confined only to the 1989 Land. However it is now clear that whilst the area of land which was the subject of the dispute between the Bulau clan and the Eti Eti clan in CLAC 4 of 1989 was confined to the 1989 land, that was only part of the parcel of land which the Eti Eti clan claims was bequeathed in the “will”. It seems that their (Eti Eti’s) claim of ownership over Rakata land stretching from Ghozi (Zari) to Rakata river inclusive of the 1989 land was based on the bequest in that “will”, so that whilst they do not dispute that that land initially belonged to the Mamara clan, they now assert it had been bequeathed to them in the “will” of Margaret Madi in 1974. As to their claims of ownership over the area from Ghozi to Fufuana river that seems to be based on their customary claim that that area is part of Fufuana land which they claim ownership in custom over.

It seems that a lot now hinges on the outcome of the parties appeals against the judgment of this court dated 19^th June 2002 in CC 256 of 2001 and the judgment dated 6^th January 2003 in CC 208 of 2002. It is unfortunate those appeals were not prepared in time for the last Court of Appeal sitting in August 2003. It simply means that parties will have to be patient and await the next Court of Appeal sitting, which I think will sometime be in February 2004, subject of-course to the availability of funds! The orders of stay will remain in force until that time.

It is somewhat unfortunate that quite a number of issues raised and agitated before this court so far regarding this case have been dealt with on a piecemeal basis. Unfortunately that has been how they have been raised and brought to the attention of this court. In the circumstances, the orders sought cannot be granted by this court. The first Plaintiff is to have his costs against the first Defendant.

ORDERS OF THE COURT:

1. Refuse application of the first Defendant as contained in his Notice of Motion filed 8^th April 2003 with costs.

The Court.

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^[1] Land Case Number 1 of 1994, 20^th August 1994
^[2] Selwyn Dika and Casper Bana v. David Lenga Somana and Others CC 208/03, 6^th January 2003
^[3] Isabel CLAC Case No. 4 of 1989, 28^th March 1990