Paza v Lanupio [2023] SBHC 86; HCSI-CC 14 of 2022 (25 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Paza v Lanupio
Citation:
Date of decision:	25 August 2023
Parties:	Johnson Paza and Milton Sale v Aleilana Lanupio and Gordon Zebo
Date of hearing:	15 March 2023
Court file number(s):	14 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1 The appeal is allowed. 2 The WCLAC decision delivered on 12th November 2021 is hereby quashed and set aside. 3 The decision of New Georgia Local Court delivered on 16th March 2021 upheld. 4 Cost of this appeal be paid by the Respondents to the Appellants on standard basis if not agreed upon.
Representation:	Mr S Lalase for the Appellant Mr R Dive for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act S 12 (1) (a)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 14 of 2022

BETWEEN

JOHNSON PAZA AND MILTON SALE
Appellant

AND

ALEILANA LANUPIO AND GORDON ZEBO
Respondent

Date of Hearing: 15 March 2023
Date of Judgment: 25 August 2023

Mr. S. Lalase for the Appellant
Mr. R. Dive for the Respondent

JUDGMENT ON APPEAL FROM CLAC

Faukona DCJ: A notice of appeal was filed on 10^th February 2022, later was amended on 2^nd August 2022.

1. The grounds of appeal are:
   1. The Wester Province Customary Land Appeal Court (WCLAC) erred to consider that this matter is a referral from the High Court and hence misguided itself in holding a full hearing of custom and ownership over the raduvu customary land. Instead of conducting a proper hearing based on the High Court directives they proceed to hear the whole issue on ownership.
   2. The WCLAC erred in its decision for failure to consider the directive referral matter from the High Court to the lower Courts. The High Court referred the matter for lower Courts directed as follows;
      • (a) Whether in custom the parties in Raduvu dispute are the same as in the Moka/Kasu dispute before the High Court.
   3. The WCLAC erred in fact and law:-
      • (a) When it recognized raduvu as a tribe within the same genealogy that was present on another matter being settled by law in CLAC case No. 10 of 2015, judgment dated 21^st October 2016 as Bubule and Muzikolo tribe.
      • (b) When it fail to consider that Raduvu tribe are the same individuals from the line of Muzikolo and Bubule tribe in the Moka/Kasu dispute over moka land determined by the following ... courts:-
      • (i) Rendova Council of Chiefs on 4^th April 2011.
      • (ii) New Georgia Local Court on 10^th June 2015.
      • (iii) Western CLAC decision on 21^st October 2016, now claimed themselves to be Raduvu tribe.
   4. The WCLAC erred in law and custom to recognize that the issue in disputes is the same between the moka tribe and the line of Bubule and Muzikolo in the Moka/Kasu dispute.
   5. The WCLAC erred in fact and law when it acknowledge.
      • (a) Raduvu as a different tribe from Mazikolo and Bubule tribe, when the very same persons are the parties, witnesses and litigants.
      • (b) Accepted the decision of Rendova Council of Chiefs which was conducted at Munda, and not at Ughele or within the Rendova Island which has jurisdiction.
   6. The relief sought:-
      • (a) Appeal be allowed.
      • (b) WCLAC verbal decision on 12^th November 2021, with written form delivered on 21^st January 2023, be set aside.
      • (c) New Georgia Local Court decision delivered 16^th March 2021 be upheld.
3. Before I deal with the grounds of appeal, it is of very significant to deal with one legal point which must not be by passed. It is an issue of procedure set out in the Local Court Act.
4. I noted in the Council of Chiefs hearing and determination of moka customary land dated 4^th April 2011, the parties were complainants, Mr. Milton Sale and Mr. Johnson Paza, and they represented Moka tribe.
5. The Defendants were Leeray Darcy, Gordon Darcy and Lara Lilo and they represented Uhele tribe, according to Chiefs records.
6. Those are extracts from the Chiefs record of judgment and Form 1 unaccepted settlement Form. And the subject customary land is “Moka Land”.
7. In that Chiefs hearing Kasu tribe was not involved or not a party. However, in the Local Court hearing of 10^th June 2015, a new party “Kasu Tribe” emerged represented by Mr. William Lianga as the 1^st Plaintiff.
8. Let me emphasize section 12 (1) (a) of the Local Court Act which reads:-
   • “Notwithstanding anything contained in this Act or in any other law, no local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that”;
   1. the parties to the dispute had referred the dispute to the Chiefs.
9. From the materials available, Kasu tribe represented by Mr. Lianga had never referred their claim to the appropriate chiefs, nor were they one of the parties in the Chiefs hearing on 4^th April 2011.’
10. So why would they jumped over or deviated or avoided the Chiefs hearing and be entertained in the Local Court. That is absolutely contravening S. 12 (1) (a) of the Local Court Act. There is no short cut in the Court process. The law must be fully complied with and no excuses.
11. The Local Court was wrong to entertain Kasu party in the Local Court which had never been to the Chief’s hearing concerning moka customary land, with other two parties.
12. Therefore Kasu tribe, represented by Mr. Lianga, which participated in the Local Court hearing on 10^th June 2015 and in the WCLAC on 21^st October 2016 was unlawful.
13. Legally the only two tribes involved in the litigation of moka customary land from Chiefs to Local Court to CLAC were the descendants of Bubuli and Muzikolo represented by Mr. Leroy Darcy, Gordon Darcy and Lala Lilo. And witnessed by Silas Zebo and Alekan Lampio. The Moka tribe was represented by Johnson Paza and Mr Milton Zale. Those were the only two parties participated and recognized in law, no one else.
14. Therefore the legal question to ask now is; were those Court cases merely between Moka tribe and Kasu tribe; the simple answer is no. Kasu tribe was not legally participated in the Local Court and the CLAC. It has disqualified under S. 12(1) (a) of the Local Court Act.
15. The Local Court must be vigilant and cautious about administration of justice. By allowing Kasu tribe to participate in the local Court without going through Chiefs is a grave mistake which must be remedy somehow

The boundaries of moka and raduvu customary lands.

16. The boundaries of moka customary land as litigated in the previous Chiefs, Local Court and CLAC, commenced at kire stream to korara river.
17. The boundaries of raduvu tribal land as first litigated in Rendova Council of Chiefs commenced from bulelavata river to pengui river.
18. In fact about 80% of raduvu land had already been to court as under moka land which had been heard and decisions had already been made.

Ground of appeal 1.

19. The issue in this point is whether upon the direction of the Court dated 31^st August 2018, the Chiefs had engaged in conducting a full hearing of customary land dispute over raduvu customary land, instead of embarking on the issues the High Court directed.
20. I noted the High Court in its record paragraph 15 last sentence stated,
21. “The RCC (Rendova Council of Chief) should dig deeper in to the preliminary issues of RJ (res judicata) and make a decision”.
22. The High Court has directed by providing the issues to consider in paragraph 10 of the ruling. The issues are;
    2. Whether the parties are the same parties in the moka/kasu dispute?
    100. Whether the land in dispute is the same land disputed in moka/kasu dispute?
    4. Whether the issue in dispute is the same issue in dispute in moka/kasu dispute?
23. The claim filed in the High Court in CC No. 65 of 2018, was a judicial review claim.
24. The argument by the Claimants is that when the Chiefs gave their determination previously, it established a land boundary that extended into their raduvu customary land. The boundary established and awarded to the Defendants is from kire stream to begui river.
25. In the chiefs hearing the defendants submitted a preliminary issue of res judicata which Rendova Chiefs declined to hear and referred the issue to the local court. It is an issue of lack of jurisdiction.
26. The Claimants then filed a judicial review claim in the High Court to review and quash that referral decision of Rendova Chiefs on 13^th October 2017. And compel the Chiefs to properly sit to hear the claimants’ case. The Claimants seek quashing order against that decision.
27. However, by the ruling of the High Court, the motive was for the Rendova Chiefs to hear the issue of res-judicata. Digging deep does not mean that a full hearing was required.
28. The preliminary issue of res judicata must first be determined. Very clear from the arguments, the issues of privity of blood, title or interest, and privity of matter or cause of action related to previous cause of action must be determined. This is very significant to decide whether the Respondents can open a new case against a party which had previously won.
29. Of course privity of matter or cause of action relates to the claim of ownership in custom and the boundaries.
30. The questions to ask is has the respondents in the current appeal were parties to an earlier proceeding, or privies of parties to those actions.
31. The second question to ask is has the cause of action or point in dispute in the previous litigation and the current are really the same?
32. Those issues are the ones the High Court had directed for the Rendova Chiefs to hear and determine.
33. Digging deeper means digging deeper into hearing of evidence in custom related to blood relationship to those who have been involved in the previous litigation and whether the land under current litigation is the same or part of it the same. Those are the terms of in regards to the preliminary issue of res-judicata to be determined, and not a full blown hearing of a land dispute.
34. My opinion would be, will the Chiefs able to handle and determine the legal issue of res-judicata successfully? Have they got the knowledge and capability? My answer is no.

Grounds of Appeal 2-6.

35. The rest of the appeal points from 2-6 deals with the prons and cons of what I term as argument whether res-judicata exist in those cases or not.
36. I do not wish to venture in engaging in actual discussion on the principle of res-judicata, because to do so I would trespass beyond what I was called to do. The question I have to deal with is whether the direction to the Chiefs to conduct full hearing or hear customary evidence related to res-judicata is proper.
37. For time being I must say that the Chiefs, Local Court or even Customary Land Appeal Court are not capable of dealing and determining the legal principle of res-judicata. It is a question of law though it may involve customary evidence.
38. What could have been done, evidence to prove or disprove existence of res-judicata can be filed in a form of sworn statements. The matter is within the jurisdiction of the High Court and not the lower courts.
39. I have done 2 cases discussing the law in principle of res-judicata. The two cases I have done are mention below:-
    5. Moffat Maena and Reuben Kona Siaofa V Simon Saeni (Jnr), Eddie Konatole and John Gegeni.
    6. Jack Lagobe and Dalcy Tozaka V Donald Odikana and David Gina and Attorney General.
40. The first case deals with the decision of MCLAC which rule that the principle of res-judicata did not apply to the Appellants. I have succinctly deal with that issue.
41. The second case deals with the judicial review with the issue of res-judicata raised.
42. I understand the review claim which was eventually dismissed by the High Court is seen as difficulties or barrier to a party to file a claim for another review. The issue of res-judicata was definitely raised yet the Court shy away with and revert back to the Chiefs who have no slightest knowledge about the principle of res-judicata and how it applies and in what circumstances.
43. In conclusion, I must answer the simple question by narrating that the direction from the High Court was merely for the Chiefs to dig deep to hear evidence on res-judicata or similarly the three issues the Judge provided.
44. It did not mean the Chiefs have to conduct a full blown Chiefs hearing submissions of claims and maps which is common, but not necessary to hear full evidence by calling of witnesses, cross-examination, surveys etc, final submissions and then determination.
45. At this juncture, I must remind parties, that only two parties are legally involved in the previous land disputes and not three.
46. With those reasons I have narrated, I therefore upheld the appeal and dismissed the decision of WCLAC delivered on 12^th November 2021.

Orders:

1. The appeal is allowed.
2. The WCLAC decision delivered on 12^th November 2021 is hereby quashed and set aside.
3. The decision of New Georgia Local Court delivered on 16^th March 2021 upheld.
4. Cost of this appeal be paid by the Respondents to the Appellants on standard basis if not agreed upon.

The Court.
Justice Rex Faukona.
Deputy Chief Justice.