Misiava v Tukinava [2020] SBHC 92; HCSI-CC 688 of 2019 (21 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Misiava v Tukinava
Citation:
Date of decision:	21 August 2020
Parties:	Michael Misiava v Michael Tukinava, Bulacan Integrated Wood Industries (SI) Company Limited
Date of hearing:	29 July 2020
Court file number(s):	688 of 2019
Jurisdiction:	Civil
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I will strike out this claim on the ground of res judicata. Interim injunction orders will also dismantle. Order accordingly. Cost against claimant.
Representation:	Ms. L. Ramo fo the Claimant/Respondent Mr. B. Kaehuna for the 1st and Defendants/Applicants
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007, Rule 9.76, Rule 9.75 (c)
Cases cited:	Talasasa v Bea [2016] SBCA 16,Eagon Resources Development Company (SI) Ltd v Virivolomo [2015] SBCA 24, Sekovolomo v Eagon and others cc 218 of 1992

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 688 of 2019

BETWEEN

MICHAEL MISIAVA
(Representing the Mavara Tribe of Choisuel Province)
Claimant

AND:

MICHAEL TUKINAVA
First Defendant

BULACAN INTEGRATED WOOD INDUSTRIES (SI) COMPANY LIMITED
Second Defendant

Date of Hearing: 29 July 2020
Date of Ruling: 21 August 2020

Ms. L. Ramo for the Claimant/Respondent
Mr. B. Kaehuna for the 1^st and 2^nd Defendants/Applicants

RULING ON APPLICATION TO STRIKE A CLAIM

1. In the Category A claim filed 6/12/2019, chief Misiava representing his Mavara tribe, of Choiseul Province, assert ownership of Lengadao, Vanakalu, Buturu Volagama and Buturu Bolugaragara lands, commonly known as Vanakalu portion of the land also known as (“a.k.a”) South Mavara land – subject land in dispute. Claimant allege that defendants logging activities have trespassed into these four customary lands. And seek the reliefs of damages and permanent restraining orders against defendants. At paragraph 4 of the Statement of Case, claimant’s ownership of these four lands was said to be premised on a Local Court decision in 1993, in a case between Stephen Sekovolomo^[1] as Plaintiff representing Koqoatovo tribe and Bernard Kasi^[2], as defendant representing the Mavara tribe.
2. The Local court decision referred in the Statement of Case was made in 1994, not 1993. The actual date was 7^th April 1994. Claimant asserts that the said Local Court decision found ownership of South Mavara land, in favour of claimant’s Mavara tribe. Claimant continued to assert in pleadings that the ownership finding stands final and conclusive having gone through and exhausted all customary land dispute settlement avenues provided by the relevant laws of Solomon Islands.
3. On a careful reading of the materials, I can say that this is not true. The opposite is actually the truth. That is to say, the 1994 Local Court decision found ownership of South Mavara Land (“SML”) in favour of Stephen Sekovolomo, as the Plaintiff and his Koqoatovo tribe. And that SML is part of Koqoatovo land belonging to Mr Sekovolomo’s Koqoatovo tribe (will return to this later).
4. First and second defendants (defendants) have applied to strike out the claim saying the ownership and boundary of SML have been fully adjudicated in the relevant land courts in favour of 1^st defendant's Koqoatovo tribe. And so the dispute over Koqoatovo land a.k.a SML is caught by res judicata and not open to this Court to re-litigate. Res judicata means a matter that has been adjudicated by a competent court, may not be pursued further by the same parties (Oxford language).
5. For me to apply res judicata, I must be satisfied with the following tests for res judicata: (i). Same parties, (ii). Same issues and (iii). Same cause of action, as have been previously decided by a competent court^[3]. I had to consider the pleading (former position) and evidence (current position) under the new Civil Procedure Rules 2007 - Rule 9.76 – in application to strike. On contemplating the pleadings and the sworn statement evidence, let me answer the three (3) relevant tests for res judicata outlined herein.

(i) Same parties and (ii) Same issues? – Dispute over Koqoatovo or SML had been fully exhausted between claimant’s Mavara tribe and 1^st defendant’s Koqoatovo tribe – starting from Chiefs to Local Court to Customary Lands Appeal Court (CLAC) and to High Court. Claimant and 1^st defendant herein are related to the parties that came through from Chiefs right to the High Court^[4]. From the Chiefs to High Court, the result was always in favour of 1^st defendant’s Koqoatovo tribe. And in the land courts, the land in dispute was always referred to as Koqoatovo land a.k.a SML. In other words, SML is part of Koqoatovo land, belonging to Koqoatovo tribe. In High Court case Stephen Sekovolomo^[5] v Eagon & Others cc 218 of 1992, Justice Palmer, as he was then, relevantly found:-

• “Plaintiff sues in his representative capacity as chief of landholding tribe, the Koqoatovo tribe. In the statement of claim, the plaintiff claims the KOQOATOVO TRIBE is the rightful owner in custom of KOQOATOVO LAND. The 1^st to 5^th defendants, in contrast, describe this land in their joint defence as SOUTH MAVARA LAND and claim it was owned by the Mavara tribe, of which, the 2^nd to 4^th defendants were either chiefs or representatives...One of the serious issues to identify by court, between the parties, was the question of rightful ownership in custom over Koqoatovo land. Fortunately for the parties, they had been able to pursue that matter before the appropriate courts to conclusion; starting off with a chief’s hearing at Voza village between 7^th May 1992. The Chief's decision was not accepted by the plaintiff and so the matter was continued before the Local Court. The said court gave judgment in favour of the plaintiff on 7^th April 1994...This was not accepted by the defendants and the matter taken further on appeal to the Customary Land Appeal Court and finally to the High Court. On each occasion, the appeals were dismissed...The issue of ownership and boundaries of Koqoatovo land between the plaintiff and the 2^nd to 4^th defendants^[6], accordingly had been finally determined in favour of the Plaintiff...”

6. High Court Justice Palmer, on the basis of Land Courts decisions found that Plaintiff’s Koqoatovo tribe is the owner in custom of Koqoatovo land. In a second case between Kasi^[7] v Sekovolomo^[8], cc 123/1998, Land Appeal Case No. 10 of 1996, Justice Palmer, as he then was, dismissed an appeal by Mavara tribe (Kasi – Appellant) and held that Sekovolomo’s Koqoatovo tribe (Respondent), on the basis of land tribunal decisions, is the ownwer in custom of Koqoatovo land. Justice Palmer relevantly stated:-
   • “The parties to this case had disputed the question of ownership of the boundaries of KOQOATOVO LAND and gone through the normal court processes through the chiefs committee hearings, Local Court and Customary Land Appeal Court (CLAC). I do not have the decision of the chiefs committee hearing, but the Local Court decision went in favour of the Respondent, Stephen Sekovolomo on behalf of his tribe, the Koqoatovo tribe.”
7. In the same Sekovolomo v Eagon and others – cc 218 of 1992 decision on assessment of damages awarded to Sekovolomo Koqoatovo tribe in 2014, Justice Apaniai, as he then was relevantly stated:-
   • “Mr Pitakaka’s argument, as I understand it, is based on a claim against the Koqoatovo tribe, by Mavara tribe, through Mr. Bernard Kasi, in Land Appeal Case, No 10 of 1996 (“cc10/96”), which relates to the land claimed, by Mavara tribe, to be South Mavara Land. This is the land, in which the said 583 logs were felled. The Mavara tribe lost that case to the Koqoatovo tribe starting at the chiefs hearing and right up to the High Court. That land which, the Mavara tribe claims as South Mavara, is not South Mavara, but Koqoatovo land, owned by Koqoatovo tribe.”
8. Justice Apaniai accepted the above as credible conclusion based on materials before him, especially the land tribunals decisions. His Lordship Apaniai’s decision was upheld on appeal to the Solomon Islands Court of Appeal^[9]. So, on the first two issues or tests: (i) Same parties and (ii) Same issues? The dispute over KOQOATOVO LAND (trespass, ownership and boundary issues), commencing from Chiefs to High Court was between KOQOATOVO TRIBE and MAVARA TRIBE. Claimant here is directly related to and from the same Mavara tribe, previously represented by Bernard Kasi^[10], or Ozobaba, Teburukana and Rerebatu^[11]. First defendant here, is directly related to and from the same Koqoatovo tribe, previously represented by Stephen Sekovolomo. So parties are the same (in terms of tribal connections and representations). And so the previous land court decisions will bind claimant’s Mavara tribe and 1^st defendant’s Koqoatovo tribe. Neither claimant nor 1^st defendant deny that they are related to these two previous competing parties to KOQOATOVO LAND a.k.a SML. So 1^st defendant’s Koqoatovo tribe is the owner in custom of Koqoatovo land a.k.a SML. The customary land disputed is the same (i.e. Koqoatovo land a.k.a SML).
9. Third res judicata test:

(iii). Same cause of action? Here the same cause of action is trespass, ownership and boundary of Koqoatovo land a.k.a. SML. That same cause of action between the same parties/tribes had already been settled by the land courts going up as far as High Court. The 1994 Local court decision would assist here. And so I will relevantly quote from the said decision:-

• “Koqoatovo is a customary land owned by the Koqoatovo tribe whom Stephen Sekovolomo represented. The boundary of Koqoatovo land is as per the attached sketch plan. From the evidence and what we actually viewed during site visit, we now come to the conclusion and confirm that this land in dispute is called Koqoatovo land and not Mavara land.”

10. That same Local Court decision of 1994, remained unchanged on appeal right through to the High Court. So the same land disputed herein has already been finally adjudicated in favour of 1^st defendant’s Koqoatovo tribe. And the issue already adjudicated is trespass, ownership and boundary of Koqoatovo land a.k.a SML. And, so I am satisfied on balance of probability that the claim herein must not be further entertained. For this claim is caught by res judicata principle. What the court has already closed cannot be re-opened. It is abuse of Court process to do so, under Rule 9.75 (c).
11. Counsel for claimant submitted that the claimant is seeking damages for trespass to Lengadao, Vanakalu, Buturu Volagama and Buturu Bolugaragara (a.k.a SML). And submits, that his client is armed with a 1993 Choiseul Local Court decision which determined they are the owners of the said land. I read that Local Court decision and what claimant submits does not sit well on the said decision findings. The decision like I found above, concluded that 1^st defendant’s Koqoatovo tribe is the owner in custom of Koqoatovo land and these portions (Lengadao, Vanakalu, Buturu Volagama and Buturu Bolugaragara a.k.a SML) are all situated inside Koqoatovo land. But Local court decision found that claimant’s tribe had properties on these plots within Koqoatovo land OR these may just be properties owned by Mr. Kasi’s Mavara tribe people located inside Koqoatovo land a.k.a SML. In the Local Court decision, court found that Mavara tribe shared no boundary land with Koqoatovo land (See paragraphs 14, 15 and 16 of the 1994 Local Court decision^[12]). That Koqoatovo customary land a.k.a SML owned by 1^st defendant’s Koqoatovo tribe is the subject of a valid felling license obtained by 2^nd defendant^[13].
12. In view of the foregoing, I will strike out this claim on the ground of res judicata. Interim injunction orders will also dismantle. Order accordingly. Cost against claimant.

THE COURT
JUSTICE JOHN A. KENIAPISIA
PUISNE JUDGE

---

^[1] 1^st defendant here comes from Mr. Sekovolomo’s Koqoatovo tribe – not disputed on the materials and in oral submission.
^[2] Claimant here comes from Mr. Kasi’s Mavara tribe – not disputed on the materials and in oral submission.
^[3] Talasasa v Bea [2016] SBCA 16; SICOA-CAC 03 of 2016 (14^th October 2016).
^[4] See uncontested statement evidence of Mr Russel Korokini filed 20/05/2020, on tribal relationship.
^[5] Plaintiff Mr. Sekovolomo in cc 218/1992 is related to 1^st defendant for and on behalf of 1^st defendant’s Koqoatovo tribe.
^[6] 2^nd to 4^th defendants in cc 218/1992 (Mr. Ozobaba, Mr. Teburukana and Mr. Rerebatu) are related to and comes from claimant’s Mavara tribe.
^[7] Mr. Kasi is from claimant’s tribe.
^[8] Mr. Sekovolomo from 1^st defendant’s tribe.
^[9] Eagon Resources Development Company (SI) Ltd v Virivolomo [2015] SBCA 24; SICOA-CAC 15 of 2014 (9^th October 2015).
^[10] Mr. Kasi as defendant (on behalf of Mavara tribe) in the 1994 Local Court decision and Appellant in cc 123/1998, Land Appeal Case No. 10 of 1996.
^[11] Mr. Ozobaba, Mr. Teburukana and Mr. Rerebatu as defendants 2 – 4 in cc 218/1992.
^[12] See Exhibit CB 1 of sworn statement by Mr. Base filed 20/12/2019.
^[13] See Exhibit CB 10 of same Base statement.