Talasasa v Bea [2013] SBHC 57; HCSI-CC 277 of 2012 (24 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 277 of 2012

BETWEEN:

RONALD BEI TALASASA (Jr), TERRY
SAGEHABU TALASASA, HENRY TALASASA
AND RONALD BEI TALASASA (Snr)
[Representing themselves and Member of their
clan or tribe]
Claimants

AND:

MARY BEA, ZIE KERRY, HUKATA BEA,
TETILEVE AND TUMI BEN
[Representing themselves and Members of their
Clan or Tribe]
Defendants

Hearing : 21 March 2013
Ruling : 24 May 2013

Mr. Laurere for Claimants
Mr. Pitabelama for Defendants

RULING

1. This is an application filed on 18 February 2013 by the Claimants for the following orders: (1) An Order that summary judgment is entered for the Claimants in this action having considered the defence filed against the Claimants, the Claimants believe that the Defendants do not have any real prospect of defending the Claimants' claim; (2) An order that the relief prayed for in the claim be granted; (3) Any other orders the court thinks fit; and costs against the Defendants.
   
2. The Claim was filed by the Claimants on 24 August 2012. They seek the following relief: (a) A declaration that the Defendants are bound by the decision of the Native Land Appeal Court No. 9 of 1971; (b) A declaration that the issue of Customary land ownership over Kazukuru (left hand) Customary Land is res judicative as between the parties and members of their line; (c) A declaration that an order made by the Magistrates Court, Western Province on the 19 July 2012, in so far as it allows or orders the parties to return to the Chiefs on the issue of Customary Land ownership was made ultra vires its jurisdiction and is quashed; (d) A permanent injunction restraining the Defendants, members of their Clan or tribe, servants or agents from entering Kazukuru (left hand) customary land (within which Boroboro land is part of) for the purpose of gardening, building houses or for any other development save with prior consent of the Claimants; (e ) Damages for trespass limited to $50,000.00; and costs.
   
3. The Claimants filed their application for summary judgment pursuant to rule 9.59 – 9.60 of the Solomon Islands Courts (Civil Procedure) Rules 2007. They contend that having considered the defence filed, they believe that the Defendants do not have any real prospect of defending the claim by the Claimants. Further, the Claimants contend that their customary ownership of Kazukuru (left hand) was established by the decision of the High Court (in its Appellate Jurisdiction) in Native Land case No. 9 of 1971. The decision in that case relevantly states that – the Appellant Zinihite and his line are the controllers in native custom of the land in dispute. All cultivations, plantings or buildings already made or constructed on the disputed land of whatever kind by the Respondent Edwin Biku or members of his line remain, as is the custom, the property of the person who carried out the cultivation, make the plantings or constructed the buildings as the case may be. But if the Respondent or members of his line wish to make further use of the land disputed they must seek the consent of the proper persons of the Appellant's line".
   
4. The Defendants in this case, claim ownership of customary land called Boroboro portion of customary land located within Loka Customary land, within Kazukuru mother tribal customary land. That they were not party to Civil Case No. 9 of 1971. This means that the principles of res judicata and ensue estapol do not arise in this case. It has not been raised that the Defendants in this case are related to the Respondent in that civil case.
   
5. Although the customary ownership of Kazukuru (left hand) was made in the Native land case No. 9 of 1971 in relation to the Appellant and the Respondent in that case, the First Defendant raised an issue regarding the Deed of Gift executed by the three donors therein. This issue was not fully addressed during submissions and the hearing of this application. That would be an issue to be properly addressed and decided during the full hearing of the claim. The court is not certain whether the deed is connected to the ownership of the land in dispute. This would be one of the issues to be considered during the full hearing on this claim.
   
6. This court would accordingly refuse the application. Each party to bear their own costs. The case is to be mentioned in court at 9:30am on 11 July 2013.
   

THE COURT