Mae v Koete [2012] SBHC 74; HCSI-CC 486 of 2011 (2 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 486 of 2011

BETWEEN:

PATTESON MAE
(Representing the Sisili Ghaubata Clan)
Claimant

AND:

JOHN MARK KOETE, MICHAEL KOUNA, HUBERT HEVO,
JAMES TAKOSI, WILLIAM KIBOGIMAE, ROBERTBORU,
GEORGE MELA AND VILI
Defendants

Date of Hearing: 22 March 2012
Date of Ruling: 2 July 2012

D Menipo for Claimant
S Balea for Defendants

RULING

MWANESALUA J:

[1] This is an application filed on 9 December 2011 by the Claimant for the following orders:

(1) An order to restrain the Defendants, their agents, employees, servants, relatives, family members, dependents, invitees or others claiming by or through the Defendents, from the Sisili Gisu Land that covers Hanipana, Kura Pile, Kura Sule, Siro Poposo, Taotao ta Rangea, Malei Tagaha, Kulunagore, Gisu, Seleule; Turavotua, Taotao ta Rosia ("the Land") situated at Sandfly Island, Ngella, Central Province;

(2) An order restraining the Defendants, their agents, employees, Servants, relatives, family members, dependents, invitees or others claiming by or through the Dependents from making any threats, intimidation, entering, using, planting, cutting root crops, trees or otherwise occupying the said Land therefrom;

(3) Declaration that the Claimant is the rightful custom owner and custodian over the said Land;

(4) Costs of and incidental to this application;

(5) Such further or other orders as this Honourable Court shall deem fit to make.

[2) The Claimant says that Koete I, Koete 2 and himself are from the Ghauata Koisairi Clan who are the rightful owners of the Land. He is the current trustee, custodian and owner of the Land, through his Great Grand Father, Koete 1 and Koete 2 after their respective deaths.

[3] Koete 1 and Koete 2 won court cases over the Land in the past. One of such case is Civil Appeal by Cecil Koete against the decision of the Ngella Local Court in Civil Case No. 2 of 1987 to the Ngella Customary Land Appeal Court. The Customary Land Appeal Court gave decision to Koete2 as the appellant. The Court found that Sisili Land was not sold but remained as Ghaubata Land. Stephen Dunao was the respondent in that case.

[4] The Claimant says that the boundary of the Land begins at Toravotua through Tabahole, Tatao Ta Rosia, Taotao Ta Rangea, Siro Poposo and ended at Haipana. (See map marked PM1 annexed to the Claimant's Sworn Statement filed on 19 March 2012.

[5] Since the decision of the Customary land Appeal Court on 22 January 1992, Koete 2 and the Claimant have written several times to Stephen Dunao and his group to stop planting crops and fruit trees and vacate the Land but they refused to do so to date.

[6] Mr Robert Pule says that he owns Hanipana Land. It was part of a plantation declared Customary Land by the Commissioner of Lands. He said it was wrongly added as part of the Land own by the Claimant.

[7] An issue has been raised on whether the principle of res judicator applies to the Defendants. The Defendants in this case have not been parties to the Local Court and the Customary Land Appeal case in the Appeal in Local Court No. 2 of 1987. The principle of res judicata or issue estopol would not apply to them. Robert Boru was merely a witness for Koete 2 in the Ngella Local Court of No. 2 of 1987. My view is that the principle of res judicata does not apply to a witness like him. See Talasasa –v- Paia and another – Customary land Appeal Case No. 2 of 1980).

[8] The Claimant has serious issues to be tried in this case. He is likely to be successful. Some of the issues may have to be heard by Chiefs and subsequently by the Local Court and Customary Land Appeal Court. I note that Hanipana Customary Land is part of a previous plantation. The Court notes Mr Robert Pule's explanations about that Land. I think for the mean time, Mr Pule should be excluded from these current orders. There are serious issues to be tried. The Claimant in this case has prospect of success in some of his claims. He cannot carry out development if people stay without his authority on the land.

[9] Order:

1. Grant orders 1, 2 and 4.

2. Refuse to grant Order 3.

3. Case for mention at 9.30 am on 19 July 2012.

THE COURT