Ngiriapu v Oli [2023] SBHC 118; HCSI-CC 499 of 2018 (10 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ngiriapu v Oli
Citation:
Date of decision:	10 November 2023
Parties:	Nattan Ngiriapu v Moses Oli and Norman Mehare
Date of hearing:	18 October 2023
Court file number(s):	499 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Claim is struck out. 2. The Claimants are to pay the costs of the Defendants on an indemnity basis for the hearings on 18 October 2023, 14 July 2023, 9 June 2023 and 17 May 2023. 3. The Claimant is to pay the costs of the Defendant on the rest of the proceedings on the standard basis.
Representation:	No appearance for the Claimant Mr L Kwana for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (civil Procedure) Rule 2007, r9.75 (a) and (b), r 15.3.18
Cases cited:	Talasasa v Bea [2016] SBCA 16

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 499 of 2018

BETWEEN

NATTAN NGIRIAPU
Claimant

AND:

MOSES OLI ANDN NORMAN MEHARE
Defendant

Date of Hearing: 18 October 2023
Date of Ruling: 10 November 2023

No Appearance for the Claimant
Mr L Kwana for the Defendant

RULING

1. On 20 December 2018 the Claimant filed the claim in this matter. There had been a hearing in the Bauro Local Court in April 1988. That hearing concerned Bweana customary land in Makira. There was a further decision of the Bauro Council of Chiefs perfected on 30 July 2018. That decision identified the boundaries between Beana customary land and Hunagaihau customary land. It is understood that Beana customary land is the name land as that described as Bweana in the 1988 decision.
2. The Claim seeks a declaration that the decision of the Bauro Council of Chiefs date 30 July 2018 be set aside on the basis of res judicata. Secondly the claim seeks a declaration that the decision of Bauro Local Court in 1988 is binding on the parties.
3. The Defendants filed an application to dismiss the claim on 28 March 2019. On 7 May 2019 Counsel for the Defendant sought a date to have the application heard. Counsel for the Claimants sought more time to put further evidence before the Court. After filing two sworn statements on 17 May 2019 the Claimant appear to have done little to advance this case.
4. The case was called for mention on 17 May 2023 when the date 25 July 2023 was fixed for hearing the application. A mention date on 9 June 2023 was also set, as there was no appearance for the Claimant.
5. On 9 June 2023 Counsel for the Defendant appeared but there was again no appearance on behalf of the Claimant. A further mention was set for 14 July 2023. Counsel for the Defendants appeared on that date but yet again there was no appearance for the Claimants. The Court again adjourned the matter for seven days making an order that if there was no appearance on behalf of the Claimants on 21 July 2023 the claim may be struck out.
6. On 21 July 2023 Mr Lalase appeared for the Claimants and again Mr Kwana for the Defendants. At the request of Mr Lalase the fixture was vacated and was listed for mention on 29 September to allow Mr Lalase to deal with issues arising from the Local Court decision.
7. On 29 September 2023 both Mr Kwana and Mr Lalase appeared and by agreement the application was listed for hearing at 1:30pm on 18 October 2023.
8. Mr Kwana appeared in support of his application but there was no appearance in opposition. The application relied on rule 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007, that is, that the proceedings are frivolous or vexations, and there is no reasonable cause of action.
9. Mr Kwana points out that the 1988 decision was concerned with payment of royalties for timber and contrary to the statement of case in the claim it did not determine the boundaries of Bweana customary land. It appears that Hunagaihau customary land borders Bweana customary land. As set out in the paragraph 2 the issue before the Chiefs in 2018 was the determination of the boundaries between the two customary lands.
10. The High Court is not the appellate Court for the Chiefs’ decision. If the Claimant considered the Chiefs had no jurisdiction to hear the claim then this claim is in reality an application for judicial review. Whether the Court can consider such a claim is dependent on rule 15.3.18. Paragraph (d) of that rule prevents the Court hearing the claim if there is another remedy that resolves the matter fully and directly.
11. The Claimants clearly had the option of challenging the decision of the Chiefs in the Local Court so this Court could not entertain a claim for judicial review.
12. Even if the Claim was not a judicial review, the claim must fail as on the material put forward by the Claimants the 1988 decision does not determine the boundaries between the two customary lands. The Claim of res judicata could not possibly succeed. So far as the second declaration sought is concerned, that is effectively dependent on the Court making a finding in favour of the Claimant on the first order sought.
13. The law regarding res judicata is clear and have been the subject of clarification by both this Court and the Court of Appeal. In Talasasa v Bea [2016] 16 the Court of Appeal said at paragraph [9]: “Said many times before, res judicata is a principle applicable where there is an existing decision on the same issue between the same parties which is binding.” At paragraph 12 the Court went on to say: “Res judicata dose no only cover issues litigated but also issues which should have been litigated by the parties when the matter come before the earlier tribunal.”
14. In the 1988 decision it was not necessary to consider the boundaries and no ruling was made on them. Counsel had referred to another claim brought before this Court by the Claimants being civil case 114 of 2022. Counsel submits that the some issues are raised in that case. That case is not before me so no further comment will be made of that.
15. In this proceeding the Claimant has not opposed the application. Secondly, the issue of res judicata patently did not apply to the chiefs hearing of the issue of the boundary between that two customary lands. Thirdly, as a judicial review the matter could not be heard as the requirements of rule 15.3.18 were not met. It follows that the claim must be struck out as it is both frivolous and vexatious.
16. The conduct of the Claimant in this case is most concerning. When a case is listed for mention, counsel or the party are expected to be present. As set out at the start of this ruling the claimant repeatedly failed to appear. There was no appearance at the hearing and accordingly no opposition to the application to dismiss the proceedings. That has resulted in a significant waste of time of the Court and for other counsel.

Orders

1. The Claim is struck out.
2. The Claimants are to pay the costs of the Defendants on an indemnity basis for the hearings on 18 October 2023, 14 July 2023, 9 June 2023 and 17 May 2023.
3. The Claimant is to pay the costs of the Defendant on the rest of the proceedings on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge