Bako v Motui [2023] SBHC 17; HCSI-CC 132 of 2021 (13 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bako v Motui
Citation:
Date of decision:	13 March 2023
Parties:	Nelson Bako v Ambrose Motui , Ben Tivo and John Tanisapa, Isabel Timber Company Limited, Mas Pacific International Limited
Date of hearing:	2 March 2023
Court file number(s):	132 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	The Claim of the Claimant is hereby struck out on the basis of the principle of res judicata. All interlocutory orders previously made by this court are set aside. Cost against the Claimants on indemnity basis. I order cost on an indemnity basis because the Claimant should have known or ought to have known about all previous court decisions touching on the issue of res judicata.
Representation:	Maito’o Hauirae for the Claimant/Respondent Mr Lionel Puhimana for the First Defendants/Applicants Allan Hou for the 2nd Defendant/Applicant James Apaniai for the 3rd Defendant/Applicant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands(Civil Procedure) Rule 2007,r2.9 and 7.5
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 132 of 2021

BETWEEN

NELSON BAKO
(Representing the Etieti Tribe of Isabel Province)
Claimant

AND:

AMBROSE MOTUI, BEN TIVO AND JOHN TANISAPA
(Representing the Etingi Tribe of Isabel Province)
First Defendant

AND:

ISABEL TIMBER COMPANY LIMITED
Second Defendant

AND:

MAS PACIFIC INTERNATIONAL LIMITED
Third Defendant

Date of Hearing: 2 March 2023
Date of Judgment: 13 March 2023

Mr Maito’o Hauirae for the Claimant/Applicant
Mr Lionel Puhimana for the first Defendants/Applicants
Mr Allan Hou for the 2^nd Defendant/Applicant
Mr James Apaniai for the 3^rd Defendant/Applicant

Bird; PJ

RULING ON APPLICATION TO STRIKE OUT

Background

1. A Category A claim was filed by the Claimant on the 8^th April 2021. As I can understand it, the basis of the claim by the Claimant is founded on trespass into the boundaries of Fufuana customary land and also known as LR674 in Santa Isabel. Consequently, damages is also part of the Claimant’s claim. The Claimant alleges that his Eti Eti tribe owns the land in issue.
2. In paragraph 12 of his statement of case, the Claimant had asserted ownership of the disputed land upon the following basis:
   1. 1924 – NS Hefferman Customary Land Boundary Report;
   2. 1972 – Lands Department Office’s Acquisition Determination;
   100. 1991 – Timber Right Agreement;
   4. 1995 – Declaration by Paramount Chief of Isabel Province Rt. Rev. Sir Duddley Tuti OBE;
   5. 1997 – Isabel Local Court’
   6. 2020 – Declaration by Paramount Chief of Isabel Province Rt. Rev. Sir James P Mason. OBE
3. Apart from filing the category A claim, the Claimant also filed application for interlocutory orders. The Court had granted the interlocutory orders on the 8^th April 2021. Amongst other orders, the three defendants/applicants were restrained from carrying out logging operations on Fufuana customary land. By consent of all parties to this proceeding, consent orders were filed on the 3^rd May 2021 and the 16^th July 2021, varying the interim orders of the 8^th April 2021. It was agreed amongst other things that the Third Defendant was allowed to continue with logging operations on the disputed land but that all royalty proceeds be made payable to a joint solicitors trust account .
4. In relation to the claim by the Claimant, an application to strike out that claim was filed by Mr Apaniai on behalf of the 3^rd Defendant/Applicant on the 26^th April 2021. A sworn statement in response by Ambrose Motui was also filed on the 27^th April 2021. For reasons not known to myself, that application was left in abeyance till 2023. On file, I can gather that Mr Puhimana counsel for the 1^st Defendants/Applicants filed his submission on the 17^th May 2021 and Mr Apaniai filed his client’s written submissions on the 16^th September 2021. Mr Hou for the 2^nd Defendant/Applicant did not file any written submission and Mr Hauirae had never filed submissions in response. Mr Hauirae, lawyer for the claimant/respondent, only filed his written submission on the date of hearing following my direction orders of the 23^rd February 2023.

The application

5. In his application to strike out, Mr Apaniai relied upon rules 2.9 and 7.5 of the Solomon Islands Courts Civil Procedure Rules 2007. The ground of the application is that the Claimant’s claim does not disclose any cause of action and/ or is otherwise frivolous and vexatious and/or it is an abuse of the court process. I set out rules 2.9 and 7.5 of the CPR.
   • r. 2.9 The application must;
   • (a) be signed by the person or the person’s legal practitioner; and
   • (b) name as defendant anyone whose interest are affected by the order sought.
   • r. 7.5 A written application must:
   • (a) state what the applicant applies for; and
   • (b) have with it a sworn statement by the applicant setting out the facts that support the making of the orders sought, unless:
     • (i) there are no questions of fact that need to be decided in making the orders sought; or
     • (ii) the facts relied on in the application are already known to the court.
6. The documents read in support of the application by the Third Defendant/Applicant are the Claim filed on the 29^th March 2021, the application to strike out filed on the 26^th April 2021 and the sworn statement of Ambrose Motui filed on the 27^th April 2021. The main issue in respect of the application involves the principle of res judicata. The sworn statement of Ambrose Motui referred to above is to the effect that the issue of ownership over Fufuana customary land or LR 674 as between the Claimant party and the First Defendants party have been determined through the land courts system and up to the Court of Appeal. The issue therefore between them is res judicata and cannot and should not be litigated again.

The arguments

7. Mr Apaniai has referred me to paragraph 3.1.3 of the sworn statement of Ambrose Motui filed on the 27^th April 2021 in which the history of litigation in respect of Fufuana customary land or LR 674 between the parties was discussed. According to the evidence in the said sworn statement, the dispute emerged in 1985 over bait fish royalty between Somana (also known as “Lenga’) of the Claimant’s Eti Eti Clan and Dika of the Mamara Clan. In 1994, Dika of the Mamara Clan, Lote of the Bulau Clan and Bana of the Etingi Clan commenced a dispute against Somana of the Eti Eti Clan before the Maringe House of Chiefs regarding the ownership of Karata Bait Fish Ground. Mr Somana did not attend the hearing and the said House of Chiefs awarded ownership to the Mamara, Bulau and Etingi Clans.
8. In the same year, the three wining parties further referred the said dispute to the Isabel Local Court in Case No. 4/94. Mr Somana of the Eti Eti Clan only attended on the first day of the hearing before the Isabel Local Court. The Isabel Local decided as follows:
   1. The Bulau Clan owns the Rakata bait-fish ground from Rakata River to Zuzuao Point. From Rakata River mouth extended northerly directly to Tagili Reef. From Tagili Reef easterly direction to Repana island and southerly direction to Zuzuao Point, including Papatur Farm, Papatur Ite including small islands and reefs within the boundary.
   2. Mamara Clan owns the west bank of Rakata River to east side of Fufuana River, across to Gufuna which share boundary with Etingi.
   100. Etingi Clan owns land from the west end of Fufuana River, Varagia River across to Gufuna which share the boundary with Mamara Clan. The Local Court further ordered that the adopted daughter of Margaret Made, Helen Kalahi shall take care of the Mamara Clan until the Mamara Clan originating from Margaret Made returns to Rakata land. In the event that Helen Kalahi dies then her son Selwyn Dika may take charge. Mr Somana of the Eti Eti Clan did not appeal against the decision of the Isabel Local Court.
9. In 2001, in Civil Case No. 256 of 2001, Mr Dika of the Mamara Clan commenced a case against Somana of the Eti Eti Clan questioning whether the Isabel Local Court decision in Case No. 4/94 had determined both the sea and inland boundaries of the Rakata bait-fish ground. The High Court ruled that the Isabel Local Court had determined both the sea and inland boundaries of Rakata bait-fish ground and that the Eti Eti Clan is bound by that decision.
10. In 2003, Somana of the Eti Eti Clan sought an order in Civil Case No. 208 of 2002 that the issue of the boundary between LR 674 and LR 675 be referred to the Local Court. The High Court rejected that application by the Eti Eti Clan. Being aggrieved by the decision of the High Court. Mr Somana appealed to the Court of Appeal. Mr Dika also appealed against an earlier decision of the High Court in CC 208/02 whereby the court expressed some doubts whether the inland boundaries of the Rakata bait-fish ground was determined by the Isabel Local Court decision in Case No. 4/94.
11. The Court of Appeal rejected both appeals and determined:
    • (a) The Isabel Local Court decision of the 28/05/01 had made a binding decision on the Rakata inland boundaries;
    • (b) The issue of Eti Clan’s rights to use part of Rakata land was finally determined in the Local Court decision 4/94 and dated 21/08/94;
12. The sworn statement of Ambrose Motui went on to say that the combined effect of the Maringe House of Chiefs decision, the Isabel Local Court decision, the High Court decision in CC 256/01, the High Court decision in CC208/02 and the Court of Appeal judgment in CAC 003/03 is that:
    1. LR 674 or Fufuana land is owned by the Etingi Clan. The boundary of LR 674 is from west end of Fufuana River to Varagia River and across to Gufuna which share boundary with Mamara Clan.
    2. LR675 or Mamara land is owned by the Mamara Clan. The boundary of LR 675 is from west bank Rakata River to east side of Fufuana River across to Gufuna which share boundary with Etingi. Eti Eti Clan has rights of usage in Mamara land.
    100. LR 676 or Bulau land is owned by the Bulau Clan. The boundary of Bulau land is from Rakata River mouth extended northerly direction to Tagili Reef. From Tagili Reef easterly direction to Repana Island southerly direction to Zuzuao Point, including Papatura Farm and Papatura Ite including small islands and reefs within the boundary.
13. Notwithstanding the above court decisions, members of the Eti Eti Clan had attempted to register Rakata or LR 675 and Fufuana or LR 674 land through an acquisition process in 2017. The acquisition Officer rejected the Eti Eti Clan’s application and confirmed that the lands were owned by the Etingi, Mamara and Bulau Clans. An appeal by the Eti Eti Clan against the Acquisition Officer’s determination was also rejected by the Magistrates Court on the 3^rd May 2019.
14. Taking into account the above evidence in the various court decisions, it is submitted by Mr Apaniai of counsel that the Etingi Clan owns the Fufuana land also known as LR 674. The Eti Eti Clan does not own that land and further that they are not entitled to assert any ownership over the said land because it is now res judicata between them. The principle of res judicata applies where there is privy of parties or that the parties are the same, that the subject matter of the dispute is the same and that there is a final judgment on the subject matter.
15. In the case at hand, the chain of cases discussed above are clear. The parties to the dispute on the ownership of Fufuana land or LR 674 are the Etingi Clan and the Eti Eti Clan. In paragraph 8 of the Claimant’s statement of case, he stated that he represents his Eti Eti landholding group over Fufuana customary land also known as LR 674. In paragraph 9, the claimant further stated that the First Defendants are the landholding trustees of Etingi Clan whom he further alleges own a different area of land. In paragraph 3 of the Claimant’s sworn statement filed on the 25^th March 2021, the Claimant stated that his Eti Eti Clan owns Fufuana customary land or LR 674. It is therefore absolutely clear that the parties to the land disputes to the Maringe House of Chiefs, the Isabel Local Court, the High Court in Civil Case Nos. 256/01 and 208/02 and Civil Appeal Case No. 003 of 2003 were the Eti Eti Clan and the Etingi Clan. It is also absolutely clear that the subject matter of the dispute between the Eti Eti Clan and the Etingi Clan in those cases related to the ownership of Fufuana customary land which is also known as LR 674. There is also evidence that there is finality of decision in this case. The Court of Appeal in CAC 003 of 2003 determined inter alia that the Isabel Local made a binding decision on the ownership of Rakata inland boundaries in its decision of the 28/05/01 and the issue of Eti Eti Clan’s right to use part of Rakata land was finally determined in the Local Court decision 4/94 dated 21/08/94. That right in short is the right of usage in Mamara land only.
16. Owing to the above discussion, it is submitted by Mr Apaniai that the claim of the Claimant should be struck out as it is frivolous and vexatious on the basis of the principle of res judicata.
17. Mr Lionel Puhimana for the 1^st Defendants/Applicants supports the application of the 3^rd Defendant/Applicant. He also relied upon the sworn statement of Ambrose Motui, the first named 1^st Defendant. In his written submission of the 17^th May 2021, Mr Puhimana discussed in detail the basis of the Claimant’s alleged ownership over the disputed land. Mr Puhimana said that in paragraph 12 of the Claimant’s statement of case, the Claimant relied upon the following:
    1. 1924 – H.S Heffernan Customary Land Boundary;
    2. 1971 – Lands Department Office’s Acquisition Determination;
    100. 1991 – Timber Rights Agreement;
    4. 1995 – Declaration by Paramount Chief of Isabel Province, Rt Rev Sir Duddley Tutu OBE;
    5. 1997 – Isabel Local Court
    6. 2020 – Declaration by Paramount Chief of Isabel Province, Rt Rev Sir James P Mason OBE.
18. It is nonetheless submitted by Mr Puhimana that the various documents relied upon by the Claimant as stated above have no binding effect in law. The 1997 Isabel Local Court decision under sub paragraph (e) above was declared ultra vires and void by the High Court in Civil Case No. 256 of 2001. The crux of Mr Puhimana’s submission is in line with submission of counsel for the Third Defendant. He reiterated that the parties to all prior cases alluded in the sworn statement of Ambrose Motui were between the Eti Eti Clan and the Etingi Clan and there is privy of parties. The subject matter of the dispute between the two clans was the ownership of Fufuana customary land or LR 674 and a final determination was made by the Court of Appeal in CAC 003/03. The issue of ownership of Fufuana customary land or LR 674, as between the Claimant’s clan and the First Defendant’s Clan could not therefore be re-litigated. That issue is res judicata and the Claimant party is estopped from further litigating that issue ever again.
19. Mr Hou for the Second Defendant/Applicant supports the application of the Third Defendant. No written submission was filed but his client’s position is similar to the First and Third Defendants/Applicants.

Argument in response

20. On behalf of the Claimant/Respondent, Mr Hauirae of counsel had argued that his client’s claim is not frivolous or vexatious. There are triable issues the triable issues he said related to the documents that his client is relying upon as an assertion of his clan’s ownership of the disputed land. He said other triable issues is that of trespass and damages. He further relied in the case of Tikani v Motui – HCC 291/01 in support of his contention. In that case, it was held that if the claim shows some cause of action and raises questions that are fit for trial, the mere fact that it is weak and not likely to succeed is no ground for striking out.
21. On the issue of res judicata, Mr Hauirae had conceded that the principles of res judicata included the same parties, same issue and final determination by a court of law. Mr Hauirae argued that his client was not a party to the hearing by the Maringe House of Chiefs. His client was also not a party to the hearing of the Isabel Local Court and as such, he argued that the principle of res judicata does not apply to his client and this case at hand.

Discussion

22. I have had the opportunity to peruse the claim of the Claimant, the sworn statements filed on behalf of all the parties to this case, the submissions filed and the case authorities cited in the application to strike out. I must say that the application does not attack the pleading in the claim per se but is based on the legal principle of res judicata. I must therefore ask myself whether or not the issue of ownership over Fufuana customary land or LR 674 had been subject to previous litigation by the claimant party and the First Defendant party? Further is whether or not there was a final determination of ownership by a court of law over that issue. As I have previously discussed above, the litigation between the Claimant party and the First Defendant party together with others was commenced through the Maringe House of Chiefs. The Isabel Local Court further rule on the issue and made a substantive ruling to the dispute. The case was heard on the 19^th August 1994. The Claimant party was a party to that case. He appeared on the first day of hearing but failed to further appear in subsequent days of the hearing. A decision was made in his absence. There was no appeal by the Claimant party to the Customary Land Appeal Court. Associated issues were raised in CC 256/01 and 208/02. The Court of Appeal in CAC 003/03 further dealt with issues connected to the 1994 Isabel Local Court decision in their judgment.
23. I can therefore say that the legal effect of all of the previous court decisions in relation to this case are that the parties to the dispute are the Claimant’s Eti Eti Clan and the First Defendant’s Etingi clan. The disputed land is Fufuana customary land or LR 674. The decision gave the Eti Eti Clan right of usage in Mamara land only. There is nothing to say that the Eti Eti Clan has any right of usage in Etingi land. The Frist Defendant’s Etingi Clan owns Fufuana customary land or LR 674. Those various decision are very clear and not ambiguous. I can therefore conclude that the issue of ownership of Fufuana customary land or LR 674 as between the Claimant’s Eti Eti Clan and the First Defendant’s Etingi Clan is res judicata. The Claimant is therefore estopped from asserting any claim of ownership over Fufuana customary land or LR 674. The Claim of the Claimant is hereby struck out on the basis of the principle of res judicata. All interlocutory orders previously made by this court are set aside. Cost against the Claimants on indemnity basis. I order cost on an indemnity basis because the Claimant should have known or ought to have known about all previous court decisions touching on the issue of res judicata.

I order accordingly.

Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge