Kena v Unutee [2022] SBHC 130; HCSI-CC 406 of 2019 (20 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kena v Unutee
Citation:
Date of decision:	20 May 2022
Parties:	Kenly Kena v John Unutee
Date of hearing:	22 April 2022
Court file number(s):	406 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	The claimant and their spokesman should be aware that the matter was finally determined in the High Court of the Western Pacific and that the issue is res judicata thus if they had properly considered this, they should have realised that there is no prospect of their claim succeeding and should resist bringing this claim. For this reason I will award cost to the defendant on indemnity basis to be tax if not agreed.
Representation:	Mr Samani D for Claimant/Respondent Mr Toito’ona S for the Defendant/Applicant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Regulation 1959 S 138 (6), Land and Titles Ordinance [cap 56] S 138
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 406 of 2019

BETWEEN

KENLY KENA
Claimant

AND:

JOHN UNUTEE
Respondent

Date of Hearing: 22 April 2024
Date of Judgment: 20 May 2022

Mr Samani D for the Claimant
Mr Toito’ona S for the Respondent

RULING ON APPLICATION TO STRIKE OUT A CLAIM

Kouhota PJ:
Background

The dispute over Gwailalamua Customary Land between Doragwata and Binali as plaintiffs and B. Baura as defendant, case No 32 of 1969 was heard by the Malaita Native Court on 19^th June 1969. B Baura appealed the Native Court decision to the High Court of Western Pacific. The appeal was registered as Native Land Appeal Case No.3 of 1970. The High Court decreed dated 3^rd June 1970 stated;

(1) The decision of the Native Court in civil case No.32 of 1969 held at Lalibaola on 19^th June 1969 is set aside.
(2) The respondent, Doragwata or any members of his line, has no beneficial interest in customary ownership of any part of the land situated on the Kwaibaita River, East Kwaraáe, Malaita known as Gwailalamua.
(3) The Respondent, Binali or any members of his line has no beneficial interest in customary ownership of any part of the land situated on the Kwaibaita river, East Kwaraáe, Malaita

The claimant and defendant in the present case are direct descendants/close relatives of the plaintiff and defendant in the Malaita Native Court Case No 32 of 1969 and Native Appeal Case No.3 of 1970

The claimant in the present case is a close relative of Doragwata and Binali’s party. He file a category (C) claim on 17^th July 2019 and seek the following orders;

(1) The matter be reverted to the Chiefs of East Kwara’ae for proper determination of ownership, boundaries and entitlements of members of tribes, clan or families of these customary land namely; Kwarutasi, Gwailalamua, Orii and Ngaliffau Customary Lands.
(2) That the East Kwara’ae Native Court exceeded its jurisdiction when it presided over the dispute between Doragwata & Binali v B. Baura in 1969.
(3) The claimant pleads that the value of the land is in excess of 100 pound. Thus the Native Court breached paragraph (4) (b) of the warrant of its establishment. He says that paragraph 4(b) (i) give the Native Court jurisdiction to hear only disputes where the value of the land is less than 100 pounds.
(4) Further that the claimant avers that since the Native Court had exceeded its jurisdiction its decision is null and void. Consequently the decision of the High Court of the Western Pacific on appeal from the Native Court is also null and void. On this ground the claimant relied on the case of Ghemu v Clerk to Marovo Local Court-HC C 93/95 as authority in support of his claim.
(5) Thus the matter of ownership of the land should be reverted to the chiefs for a hearing de nevo.

The application to strike out the claim

On 26^th August 2019, Counsel for the defendant Mr Toito’ona file an application to strike out the claim. At the hearing of the application Counsel Toito’ona submitted;

(1) The Native Court did not breach its warrant of establishment (warrant) when it heard the dispute between Doragwata and Binali v B.Baura in 1969.
(2) On the date of hearing, the warrant was no longer in its 1954 (original) form. Since paragraph 4(b) (i) of the warrant has been repealed some years previously by section 138 (6) of the Lands and Title Regulation 1959 (later to be renamed the Land and Title Ordinance (Cap.56) (“the ordinance”). The ordinance was repealed by section 138 of the Lands and Title Regulation 1959.

There is merit in Counsel Toito’ona’s submission because section 138(6) of the Lands and Titles Regulation states” the provisions of this section shall have effect notwithstanding anything contained in any other law or in any warrant establishing any native court”

Mr Samani on behalf of the claimant submitted that this is a customary land and it should be reverted to the chiefs to deal with it. He submit that section 138 of the Lands and Title Act Regulation 1959 is defective that is the reason why it has been removed from the present legislation. Mr Samani also submitted to hold that the case of Baura v Doragwata and Binali Land Appeal case No. 3 of 1970 in the Western Pacific is res judicata shall have effect of a flagrant breach of section (8) (a) (b) (c) (i) & (ii) unconstitutional and breach of Human rights of the claimant. I see no logic in in this submission.

The customary land dispute between the parties were dealt with under the law existing at that point in time and there is nothing illegal about Native Court hearing the dispute. The Constitution which Mr Samani referred does not exist or even contemplated at that time the court dealt with the dispute. I also can’t see how section 138 of the Lands and Title Regulation is defective. We may now have improve the legislative regimes for dealing with customary land disputes but that does not make the old and repealed legislations defective.

Having considered the material before the Court I find that the land dispute which is the subject of this claim is res judicata thus this claim is frivolous and vexatious and must be strike out.

The claimant and their spokesman should be aware that the matter was finally determined in the High Court of the Western Pacific and that the issue is res judicata thus if they had properly considered this, they should have realised that there is no prospect of their claim succeeding and should resist bringing this claim. For this reason I will award cost to the defendant on indemnity basis to be tax if not agreed.

THE COURT
JUSTICE EMMANUEL KOUHOTA
PUISNE JUDGE