Kabolo v Aldo [2022] SBHC 22; HCSI-CC 151 of 2020 (1 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kabolo v Aldo
Citation:
Date of decision:	1 June 2022
Parties:	Robert Kamai Kabolo, Fr. Gabriel Maelasi v Timothy Aldo, Billy Feralao & Willy Gilibit
Date of hearing:	30 July 2021 (Last Written Submission filed)
Court file number(s):	151 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:
Representation:	Mr. Iroga J for the Claimants/Respondent Mr Marahare D for the 2st Defendants/Applicant Mr Laurere N for the 2nd Defendant/Supports Applicant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule, r 12.11, r 12.12, r9.58, r9.75 (a) - (c)
Cases cited:	Talasasa v Bea [2016[ SBCA 16

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 151 of 2020

BETWEEN

ROBERT KAMAI KABOLO & FR. GABRIEL MAELASI
(Representatives of the Duruana Tribe)
Claimant

AND:

TIMOTHY ALDO
(REPRESENTATIVES OF THEIR FOROE TRIBE)
1^st Defendant

AND:

BILLY FERALAO & WILLY GILIBIT
2^nd Defendant

Date of Hearing: 30 July 2021 (Last Written Submission Filed)
Date of Decision: 1 June 2022

Mr Iroga J for the Claimant/Respondent
Mr Marahare D for the 1^st Defendant/Applicant
Mr Laurere N for the 2^nd Defendant/ Supports Applicant

RULING ON APPLICATION FOR - DETERMINATION OF PRELIMINARY QUESTION OF LAW, SUMMARY JUDGMENT AND DISMISSAL OF CLAIM

1. The 1^st defendant filed a combined amended application on 18/6/2021. The combined amended application was brought under Rule 12.11; Rule 12.12; Rule 9.58 and Rule 9.75 (a) - (c). Under Rule 12.11 and 12.12 the Court can determine preliminary issues of law and or fact, which will result, in terminating the proceeding fully or partly and the trial will be partly or substantially reduced or vacated altogether.
2. Under Rule 9.58, the defendant may apply against the claimant for summary judgment, if the defendant filed a defence and believes that there is no real prospect of any part of the claim succeeding. And Rule 9.75 is the more common one, where a claim can be struck out, if the claim is frivolous and vexatious, or claim disclosed no reasonable cause of action or claim is an abuse of court process. The ultimate effect of the 3 combined amended applications is to terminate this proceeding early.

Nature and Scope of the Claim and Reliefs Sought

3. The claim was filed on 7/4/2020. Five reliefs were sought. But the main one is Relief Number 1. The remaining 4 Reliefs depend entirely on whether or not Relief Number 1 succeeds. Relief Number 1 seeks this Court to declare that claimants Duruana Tribe, is the true owners in custom, of Duruana Customary Land, in North East Malaita, Malaita Province.
4. Counsel will appreciate that this Court lacks jurisdiction to enquire direct into matters of custom as they affect ownership of customary land. Matters like, genealogy (male and female descent connections), tribe, custom stories, boundary, tambu sites etc. This Court can only make declarations based on these matters of custom, been synchronised in the land courts, starting with the Chiefs, Local Court and Customary Lands Appeal Court (“CLAC”) - (the appropriate forum). Any appeal will go to the High Court and Court of Appeal on point of law only. What this means is that, someone, who comes to this Court, for declaration of his/her rights, as to ownership of customary land, must come armed with decisions on ownership, from the appropriate forum. This Court will merely take whatever decision the appropriate forum has decided, as evidence. And premised on the appropriate forum’s decision/evidence, this Court can make declarations, or can give out reliefs. That is the bigger picture frame work, that this claim must measure up to. If it does not, then I cannot enquire into this claim. I will be prevented by lack of jurisdiction.
5. The claim wants this Court to declare claimants Duruana Tribe, as the true owners in custom of Duruana Customary Land (“DCL”), in North East Malaita, Malaita Province. Unfortunately, claimants have not come, armed with decision(s) on ownership of DCL from the appropriate forum. And they confess in the claim and evidence, that 1^st defendant has won against them as the male descent with primary rights over DCL, up to CLAC and even in the High Court. I will try and recite claimants’ confessions here: -
   • (i) Claimants acknowledged that 1^st defendant is the owner in custom of DCL by virtue of decisions of Malaita Local Court, Malaita CLAC and High Court (See Statement of Case Number 6 (1) of the Claim filed 7/04/2020).
   • (ii) In 1983, Lawrence Aldo thereafter appeal the Malaita Local Court determination of 1979 to Malaita CLAC. The Malaita CLAC then ruled in favour of Lawrence Aldo as the primary land owner of DCL. There was appeal to High Court which was declined and Malaita CLAC decision of 1983 re-affirmed (See Statement of Case Number 5 (b) and (c) of same claim).
   • (iii) We admit that there were series of court cases pertaining to DCL, after the 1979 decision in our favour. We also admit that the subsequent decisions were from the Malaita Local Court, Malaita CLAC and High Court. Most of the decisions were in favour of the 1^st defendant’s group, which was subsequently being transferred to us by way of the custom ceremony held on 10^th November 2004 (See paragraph 4 of joint sworn statement of claimants filed 31/5/2021).
   • (iv) We say, that the 1^st defendant’s group despite being ruled as owning DCL, fully surrendered and waived their ownership rights by declaration and confirmation during the reconciliation and settlement ceremony reached, dated 10^th November 2004 (See paragraph 5, joint sworn statement of claimants filed 31/5/2021).
6. The pleadings and evidences surmised above points to the gist of claimants’ claim of ownership over DCL. That 1^st defendant had won against claimants in the appropriate forum on the issue of primary rights ownership of DCL. But then 1^st defendant had surrendered those victories and rights in favour of the claimants, during a custom ceremony and agreement, executed around 10^th November 2004. I have contemplated on the pleadings and the evidences both from the claimants and defendants. And can say that claimants premised their ownership claim of DCL on a custom ceremony held on 10^th November 2004.

10th November 2004 Custom Ceremony and Written Agreement

7. Claimants confessed or admitted that 1^st defendant has won against them in the land court decisions from Malaita Local Court to Malaita CLAC and High Court. That 1^st defendant is the primary right owner of DCL (having been born from the male descent). And that in the said land court decisions, it was held that claimants are from the female descent – denoting secondary rights ownership. Claimants aver, all that was not true, as the land courts have concluded. What was true is the effect of the custom ceremony held on 10^th November 2004, here in Honiara.
8. At the said custom ceremony, 1^st defendant confessed to the claimants the truth about what 1^st defendant’s tribe did in the land courts. The truth is that claimants are from the male descendants with primary rights ownership of DCL. And the 1^st defendant’s tribe is from the female descent with secondary rights ownership of DCL. That 1^st defendant’s tribe had concealed this in the land courts.
9. The effect of the 10^th November 2004 ceremony and the agreement executed between claimants and 1^st defendant’s tribes was to turn around the face of the land court decisions. The current face of the land court decisions is; 1^st defendant is the male descent with primary customary land rights ownership of DCL. That face was defaced by the customary ceremony held on 10^th November 2004. Since the 2004 ceremony, claimants have become the male descent, with primary customary land rights ownership of DCL. And the agreement lowered 1^st defendant’s tribe as secondary rights owner coming from the female descent of Duruana Tribe.

Claim and Reliefs sought not tenable or does not have a chance to succeed

10. Claimants are asking the Court to do the impossible. To declare claimants as the true owners of DCL on the basis of an agreement, rather than a land court decision. If I should do that, then I am turning the wheels of justice in a novel, strange and opposite direction. If I do, I will be saying that agreements can have the effect of undermining decisions of the courts. Of course as a matter of logic and common sense, I cannot do that. Decisions of the Courts have the force of law. Agreements also have the force of law. But not where agreements seek to undermine and downgrade court decisions. To the extent that the 2004 custom ceremony and agreement seek to deface the land court decision, the 2004 agreement will become unenforceable. What the land courts have closed, no one else has the power to re-open, not even a subsequent land court. I cannot re-arrange the face of the land court decisions, as the agreement seeks to do. If I do, it will amount to abuse of court process. For what the court(s) with competent jurisdiction have closed, I cannot re-open. I am prevented from doing so, due to abuse of court process^[1]. I am prevented from doing so due to res judicata and estoppel. The same cause of action or subject matter (i.e. DCL ownership) between claimants and 1^st defendant (same parties) has been settled in favour of 1^st defendant. Claimants and 1^st defendant herein are directly related to the parties (same parties), between which, the land courts have already decided on the issue of ownership over DCL (same issue). So on the principle of res judicata^[2] claimants are estopped^[3] from re-litigating the same issues again between principally the same parties on the same subject matter of dispute^[4].
11. What all these mean is that the reliefs claimants sought in this claim cannot be sustained on the face of the pleadings and the evidences now emerging^[5]. The claim does not have any chance of success. Claimants do not come to this court armed with favourable land court decisions. The Court cannot give claimants what they are asking for. The claim failed to disclose a reasonable cause of action. The claim cannot be cured by amendment, because the claim is defective, on the merit, not on the pleadings. For all the land court decisions have pointed otherwise in favour of 1^st defendant. So this claim should also be struck out as disclosing no reasonable cause of action^[6].
12. What else should I say? I should also say, after the 1^st defendant, had filed his defence, it becomes clear from the pleadings and evidences, that the claim for declaration of customary land ownership, premised on an agreement, against the weight of land court decision pronouncements, does not have any real prospect of succeeding on the material fact of this dispute. The material fact being ownership of DCL, between claimants and 1^st defendant. That material fact had been settled in favour of the 1^st defendant against the claimants, in the land court decisions. That material fact settled by the relevant land courts, I cannot interfere with, at trial. So there is nothing for me to investigate further at trial. The crucial evidence 1^st defendant produced in support of application for summary judgment is not contested by the claimants. Like I have covered earlier, claimants admitted the evidence, on land court decisions, in favour of 1^st defendant. So I can confidently enter summary judgment for the 1^st defendant and say that the claim has no real prospect of succeeding^[7]. And there are no further contentious issue(s)^[8], on the material fact of ownership, to investigate at trial.
13. In the final and ultimate analysis, a solid foundation, has been erected for me, from the foregoing, to terminate this proceeding early, on the preliminary issue of law posed. I can answer the preliminary issue of law now and terminate this proceeding prematurely under Rule 12.11 and 12.12 as follows – Claimants cannot enforce, as a matter of law, the agreement and custom ceremony concluded on 10^th November 2004, to defeat and supersede the various judicial pronouncements which are binding on claimants and 1^st defendant and their respective tribes, mentioned in the various decisions.

As against the 2nd defendant

14. Claimants believing that they will succeed on their main relief in this claim seek consequential relief of declaration against the 1^st defendant and 2^nd defendant not to be involved in any further dispute over DCL, before Malaita Local Court. A dispute between these two parties is pending in Malaita Local Court. I have failed claimants on the main relief. I will also fail this consequential relief, for the same reasons, that I fail the main relief – abuse of court process; disclosed no reasonable cause of action; does not have a real prospect of succeeding; no further contentious issues to go to trial on the material fact; res judicata and issue estoppel. I cannot order a stop on the dispute between 1^st and 2^nd defendants, in the land courts. If I do, I will be interfering with the roles of the land courts. That is an abuse of court process. I cannot do it without good cause. Claimants failed to disclose a good cause.

Conclusion and Orders

15. In all that I say, I am satisfied that I should grant the combined amended application filed on 18/6/2021 as follows: -
    • 15.1 Claimants as a matter of law, cannot enforce the agreement executed on or around 10^th November 2004 in a custom ceremony held in Honiara, to defeat or supersede various judicial pronouncements, to which claimants and 1^st defendant and their respective tribes were parties. The agreement may be used for peaceful co-existence purposes only (if desirable).
    • 15.2 Court will enter summary judgment against claimants under Rule 9.58 and 9.66.
    • 15.3 Court will strike out the claim under Rule 9.75 (b) and (c).
    • 15.4 The agreement dated 10^th November 2004 is null and void and of no effect, to the extent that, it seeks to undermine land court decisions.
    • 15.5 Ownership of DCL between claimants and 1^st defendant’s respective tribes are not allowed to be re-litigated on the basis of res judicata and estoppel. Claimants are not permitted to rely on the agreement for purpose of ownership of DCL and to defeat standing land court decisions.
    • 15.6 Claimants to pay 1^st and 2^nd defendants cost on standard basis, to be taxed, if not agreed.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Rule 9.75 (c).
^[2] See paragraph 9 of Talasasa v Bea [2016[SBCA 16; SICOA-CAC 03 of 2016 (14^th October 2016).
^[3] A legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation or denial.
^[4] Talasasa at foot note 2 above – Court of Appeal speaking.
^[5] Rule 9.75 read with 9.76.
^[6] Rule 9.75 (b).
^[7] Rule 9.58.
^[8] Rule 9.66.