Kitu v Pitu [2010] SBHC 69; HCSI-CC 90 of 2010 (13 July 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Goldsbrough J)

Civil Case No. 90 of 2010

BETWEEN:

RONALD KITU AND NELSON HUTI... (Representing the Saikile tribe of South New Georgia)
(Claimant)

AND:

ARNOLD PITU, JOHN KILATU, RUPASI MURRAY, LEMECK BILE, KELRICK ROY, PENI HARO, CHIEF DILENTY VULA, ARNOLD MINU, MASURU VUDERE AND HARRY FINAU (Representing the Kalena Tribe)
1st Defendants

AND:

FRANK DIA, ROBERT PENTANI, MANGROSS NGORO AND JACK KEGHU (Representing Soloso Tribe)
2nd Defendants

AND:

ATTORNEY GENERAL (Representing the Western Customary Land Appeal Court)
3rd Defendant

AND:

OMEX INDUSTRY LIMITED (SI)
4th Defendant

AND:

ATTORNEY GENERAL (Representing the Western Provincial Executive)
5th Defendant

AND:

ATTORNEY GENERAL (Representing the Commissioner of Forests)
6th Defendant

Date of Hearing: 6 July 2010
Date of Ruling: 13 July 2010

Ipo M for the Claimants
Tegavota P for the 1st & 2nd Defendants
Sullivan/Kama for the 4th Defendant
Damilea D for the 3rd, 5th & 6th Defendants

Application to Vary Interim Relief

Goldsbrough J:

1. This is an application for variation of an interim injunction made 19 May 2010. That order restrained logging and included other ancillary orders. It was made inter partes when the 4th defendant was differently represented.
   
2. The application to vary contains two distinct parts. The court at the hearing heard submissions on that part which addresses factual issues that the applicants say cannot prove successful in any eventual hearing, which in terms of interim relief suggests that there is no arguable case to be tried. The court has not, as yet, heard full argument on the remaining part which goes to jurisdiction. The argument was not heard since counsel for the respondent claimants had not had a sufficient opportunity to prepare submissions on the particular issue and all counsel involved submitted that the issue was of too significant import to be dealt with without thorough argument.
   
3. The claimant respondents submit that the decision complained about, which was made in the CLAC, is liable to challenge for having failed to apply the doctrine of res judicata when determining the matter before it. They point to a decision in 1957 which they submit determined land ownership in their favour and which raised that very legal issue.
   
4. On behalf of the 4th defendants it is submitted and is the central theme of the application to vary that the 1957 decision of the Roviana Local Court has no such impact. A one page exhibit included now in several sworn statements contains the decision which clearly is not a decision determinative of substantial land ownership rights and barely describes the area boundaries in question in a way which can be demonstrated as unambiguous.
   
5. In that regard the application of the 4th defendants has shown that the material presented to the court at the first inter partes hearing will not be sufficient to make out the res judicata issue. However, a careful reading of the text of the exhibited judgment reveals that the matter did not rely upon that particular exhibited decision. The text shows that ownership 'has already been discussed" in the Native Court and "has been settled and proved" and so whilst the actual decision exhibited lacks sufficient authority to say it is determinative of ownership and between whom, it illustrate that previous decisions of the Native Court have determined those issues.
   
6. It is those previous decisions that may be capable of supporting the present claim, and the respondent claimants need to produce evidence of those earlier decisions if they are to be in any way successful in demonstrating that res judicata may apply. Presently there is not enough material to support that.
   
7. It cannot be the case that the respondent claimants can be permitted an unlimited amount of time to produce such evidence. But I am not yet persuaded that the time should be drawn to a close and no further time allowed.
   
8. The issue of a later Land Adjudication process within which a determination of ownership appears to have been made against the interests of the respondent claimants is equally uncertain. There is material to support a finding that the Land Adjudication process initially found in favour of others, but there is equally material suggesting that there was an appeal against that decision, a fact which appears to be contested and therefore a live issue.
   
9. Of concern to me during the application although not determinative of it was the production of a genealogy by Arnold Pitu in a sworn statement filed 14 June 2010 in contrast to the genealogy he produced in his sworn statement filed for the first hearing. They are different, and they differ in how they illustrate an ancestor called Vudere. Co-incidentally, Vudere is the only name referred to in the 1957 decision and is missing from the 2nd genealogy prepared by Mr. Pitu, although is very clearly shown in the first exhibit. As indicated this is not determinative of this application but it should not go without remark.
   
10. Turning to the test which must be applied to determine whether an interim injunction should be imposed or remain in force, it appears to this court that there is presently sufficient primary material to show that a claim may succeed, in that should the respondent claimants produce sufficient further material from the Native Court prior to the 1957 decision then they may have good grounds for raising res judicata.
    
11. In those circumstances this application fails in that part. As earlier indicated the court has not yet heard full argument on jurisdiction and should the parties so wish the court is prepared to hear that aspect as part of this application or is equally prepared to postpone that part to the full hearing. To the extent that it matters the Court prefers the former option but in any event will not proceed to that hearing until all counsel are fully prepared and able to make submissions on the point.
    
12. I therefore call on counsel to indicate which route they now choose to follow before making final orders in respect of this application.
    

Dated this 13th day of July 2010

GOLDSBROUGH J