Waleoi v Ne'e [2024] SBHC 5; HCSI-CC 494 of 2023 (6 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Waleoi v Ne’e
Citation:
Date of decision:	6 February 2024
Parties:	Moses Waleoi v Francis Tafea Ne’e
Date of hearing:	30 January 2024
Court file number(s):	494 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	(1) The application to strike out the claim pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted. (2) In consequence hereof, the claim filed on 10th October 2023 is struck out pursuant to rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. (3) The application to determine the preliminary question or issues of law filed by claimant on 25th January 2024 is dismissed. (4) Cost of this application is to be paid by the claimant on standard basis.
Representation:	Mr J Iroga for the Claimant Mr J To’ofilu for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 64 (b)
Cases cited:	Lilo v Panda, Lilo v Ghotokera [1981] SBHC 12, Noro v Saki [2016] SBCA 16, Simbe v East Choiseul Area Council [1999] SBCA 9

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 494 of 2023

BETWEEN

MOSES WALEOI
(Representing himself and members of the Oirii clan of Malaita Province)
Claimant

AND:

FRANCIS TAFEA NE’E
Defendant

Date of Hearing: 30 January 2024
Date of Ruling: 6 February 2024

Mr J Iroga for the Claimant
Mr J To’ofilu for the Defendant

Ruling

Commissioner Aulanga

1. Two applications for the court to determine. First, the defendant’s application to strike out the claim pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007. The other is the claimant’s application on a question of law to determine whether the decision of the High Court of Western Pacific dated 23^rd July 1971 over Sinasu’u customary land supersedes the acquisition determination in 1996 relied on by the defendant as evidence of ownership of the said Sinasu’u land.
2. Other declaratory orders sought in that second application are to nullify reliance on the acquisition determination; that the claimant’s clan is the true owner of the Sinasu’u customary land and finally, to restrain the defendant, his agents, associates and members of his group from trespassing into the Sinasu’u customary land or from undertaking any unlawful or criminal activities against the claimant.
3. The claimant filed a category A claim on 10^th October 2023, seeking these reliefs:
   • (1) An order declaring that his Oirii clan is the owners of the Sinasu’u customary land pursuant to the High Court of the Western Pacific decision of 23^rd July 1971.
   • (2) An order declaring that the defendant trespassed into the Sinasu’u customary land.
   • (3) An order that the claimant entitles to possession of the portion of Sinasu’u customary land currently occupied by the defendant including any permanent building and structures built thereon.
   • (4) An order that the defendant together with his family members, relatives, servants and or associates are evicted from the land.
   • (5) An order that the defendant together with his family members, relatives, servants and or associates are restrained from re-entering into or otherwise trespassing on the land.
   • (6) Damage for trespass to be assessed.
   • (7) Cost on indemnity basis.
4. From the claim, it is obvious that the claimant’s case is to seek declaratory orders that his line or party owns the Sinasu’u customary land. The claimant also seeks to repossess the land currently occupied by the defendant. Further, the claimant also seeks other injunctive orders to restrain the defendant from trespassing into that customary land and from undertaking any criminal activities against the claimant.

Brief facts

5. The brief background facts of this case uncovered that the Sinasu’u customary land is located in Central Kwara’ae region. It has gone through customary ownership dispute in the past. That dispute was between the claimant’s line represented by Frank Oirii, and Jack Sipisoa, a member of another group unrelated to the defendant.
6. By the decision of the High Court of Western Pacific of 23^rd July 1971 (“1971 case”), it decided in favour of the claimant. That decision remains unchanged until to this date. It is important to state here that the defendant is not a party to this case. Further, at the time of filing this claim, there is no referral of any dispute between the claimant and the defendant regarding the ownership of this customary land to the chiefs or any of the courts established under the Local Court Act.
7. In 1996, a portion of land of Sinasu’u was acquired for the South Seas Evangelical Church. Three groups or parties claimed ownership of that portion of acquired land. They were; the claimant’s party, George Tarisia’s party and the defendant’s party represented by Alwin Indukelema and Peter Tafea Nee. Submissions were presented to determine the trustees to lease that land. There was a dispute about the ownership of Sinasu’u and whether that acquired land was inside the Sinasu’u customary land.
8. The determination was made in favour of the defendant’s party. The portion of the land was then registered PE 171-002-36 in the name of Wilson Nee, an immediate family member of the defendant.
9. The claimant aggrieved with the determination and appealed to the Magistrates Court in Auki. That appeal was struck out for excessive or inordinate delay. The claimant appealed that decision to the High Court in HCSI CC 464 of 2018. On 3^rd July 2020, the appeal was struck out by Justice Higgins. The claimant did not file any application to set aside that Strike Out order or any appeal against that order to the Court of Appeal. The 1996 determination therefore remained unaltered.
10. In 2021, the claimant filed another High Court case in HCSI CC 395 of 2021 against the defendant and the Attorney General representing the two Acquisition Officers^[1] purportedly for that 1996 determination and the Commissioner of Lands. That claim, inter alia, was for orders to nullify the 1996 acquisition determination. The claimant pleaded and relied on the 1971 case as the basis of the claim. The matter then progressed. Thereafter, the defendant, Francis Tafea Nee (present defendant) filed an application to strike out the claim.
11. On 9^th October 2023 while awaiting ruling on the said application, the claimant discontinued the entire proceeding by filing of a Notice of Discontinuance. The matter then was closed.
12. Without applying for leave to reinstate the proceeding in HCSI CC 395 of 2021, the claimant decided to file this present proceeding. As alluded to, due to the claimant’s unsuccessful attempts to overturn the 1996 determination at both the Magistrate and the High Court, the 1996 determination now becomes binding on the parties in so far as it relates to the trusteeship of the acquired portion of land.
13. The defendant says the failure to set aside the 1996 determination through the unsuccessful appeals means the claim is res judicata. The defendant argues that the claimant is estopped from relitigating the matter. Therefore, there is no cause of action in the present claim. The defendant also says that the serial litigation of this case has amounted to an abuse of the court’s process.
14. On 25^th January 2024, when the matter was already listed for hearing of the interlocutory application, the claimant filed the application on a question or issues of law as described in paragraph 1 above.
15. I prefer to deal first with the application to strike out since it will determine the survival of the second application. The application was supported by two sworn statements of the defendant, Francis Tafea Nee, respectively filed on 13^th November 2023 and 20^th December 2023.

Defendant’s application to strike out claim

16. The evidence of the defendant from the two sworn statements is patently clear and reveals a number of important considerations, in support of the application to strike out the claim.
17. Firstly, in his first sworn statement^[2], it evidences that when the 1996 determination was made in favour of his line as the rightful persons to lease the land, that determination already considered the 1971 decision when it rejected the claimant’s claim. It also found that the defendant was not a party to that 1971 case and they were not bound by that decision. That determination remains unaltered and unchanged after the unsuccessful appeals by the claimant to the Magistrate and the High Court.
18. In the subsequent High Court proceeding^[3], the claimant also relied on the 1971 case and provided evidence in support of their claim of ownership of the Sinasu’u customary land. Because of this, it is not opened for the claimant to file a claim that seeks to revisit the matters already been struck out in the appeal proceedings against the 1996 determination and discontinued in another High Court proceeding. Because the 1996 determination was not overturned, the claimant should be bound by that decision.
19. Secondly, the defendant was not a party to the 1971 case. Therefore, they were not privy or bound by that decision. The defendant argues that the claimant’s reliance on this decision as the basis to seek the reliefs in the claim is flawed and erroneous.
20. Thirdly, the land that the defendant and his family are residing in which the claim seeks eviction, possession and injunctive orders against the defendant is a registered land PE 171-002-36 registered in the name of his immediate family member, Wilson Nee.^[4] Thus, the claimant should first seek rectification of tile to necessitate the reliefs pleaded in the claim. By failing to do, there is no cause of action disclosed in the claim. Hence, it ought to be struck out pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.

Claimant’s response to the application to strike out claim

21. In response, the claimant clarifies that the dispute has nothing to do with the registered land. This, in my view, condenses and settles the issues for me to decide.
22. The claim, as said by the claimant, is, inter alia, for declaratory orders that the claimant’s Oirií line is the landowner of the Sinasu’u customary land to the exclusion of the defendant. The claim was supported by a sworn statement of the claimant filed on 10^th October 2023 that asserted his claimed ownership of the land from the 1971 case, together with its purported demarcated boundaries.
23. The claimant also disputes the argument of res judicata advanced by the defendant that the issues and the cause of action in the current matter are different to the matters previously litigated by the same parties to this case. The acquisition determination was incomplete since it was yet to be implemented. Even if the boundary between the Sinasu’u and the registered land is disputed, that, as stated by the claimant at paragraph 8 of the claimant’s sworn statement filed on 25the January 2024, can be rectified in due course by filing of a separate claim in another proceeding. If not, that can be argued during the trial of this matter.
24. The claimant further argues that despite the HCSI CC 395 of 2021 was discontinued, it is still considered a continuing case. The decision to discontinue the case was based on change of instruction between the claimant and his former legal counsel. This argument somehow is misleading since by discontinuing the matter with a notice filed pursuant to rule 9.68 (a), the claim therefore ceases of any existence before the court. It can only be reinstated or revived by leave of the court.
25. Counsel for the claimant also confirms that there was no referral of the dispute to the chiefs or to any court established under the Local Court Act, and says that it is the responsibility of the defendant to do so.
26. The claimant therefore asked the court to dismiss the application to strike out the claim based on their claim of ownership of the Sinasu’u customary land.

Court’s findings

27. Both parties through respective counsels have gone at some length to address the court on the issue of res judicata of the matter as a result of the 1996 determination that identified the defendant’s party as the trustees over the PE 171-002-36. Both counsels have also made submissions on the effect on the validity of the current claim in the light of the previous discontinued High Court matter and the eminent abuse of the court’s process for filing of the claim for restraining orders over a registered land without pleading rectification of title in the claim.
28. For this case, based on the evidence from the sworn statement of the defendant^[5] and the evidence from the 1996 determination that found the defendant was not a party to the 1971 case, I hold that the 1971 case relied on by the claimant is not binding on the defendant. This finding is based on the accepted evidence that the defendant is not a party to that case. For this reason, the defendant and his line’s right for the use of the Sinasu’u customary land is not extinguished or excluded by that 1971 case. I also accept that at the filing of this matter, none of the parties herein have referred the matter to any customary courts established under the Local Court Act to determine the competing claims of ownership of the Sinasu’u customary land. This must mean, as prescribed by the Court of Appeal in Simbe v East Choiseul Area Council^[6], that this court therefore lacks jurisdiction to issue injunctive orders over the Sinasu’u customary land.
29. In view of the reliefs sought in the claim, the ultimate question is whether this court has the jurisdiction to make a declaration that the claimant’s Oirií line, and not the defendant and or his line, is the true owner of the Sinasu’u customary land. That is despite the defendant is not a party to the 1971 case. Put another way, what the clamant is asking in the claim, inter alia, is for this court to skip or bypass the customary courts and award him ownership of the Sinasu’u customary land over the defendant by way of court declaration.
30. The law is clear that the task of determining the ownership of a customary land is not the role of the High Court. It is for the courts established under the Local Court Act to make that finding. In this case, there is no referral as yet to the appropriate court to determine the competing ownership claims between the claimant and the defendant over the Sinasu’u customary land. So how can this court should overtake their statutory functions? The chiefs and the other courts established under the Local Court Act are the proper courts empowered by statute to deal with the dispute and award the ownership of the Sinasu’u customary land. The High Court is therefore not the appropriate court to perform that function.
31. The issue of res judicata of the 1996 acquisition determination raised by the defendant as a result of the multiple unsuccessful litigations by the claimant cannot be relied on as well. This is based on the legal notion that the said decision is only confined to identification of the trusteeship to lease the land under section 64 (b) of the Land and Titles Act. For the role of the acquisition officer is confined only to identification of the vendors of the land and not the true customary owners of the land as stated in Lilo v Panda; Lilo v Ghotokera^[7]. The task of finding the true landowners of a customary land is for the courts established under the Local Court Act as the decision of the acquisition officer can be displaced by the customary courts. The 1996 determination is only relevant to the registered land PE 171-002-36 and not as a decision on the ownership of the Sinasu’u customary land between the parties herein.
32. The other troubling issue is in relation to the claim for eviction of the defendant, his family, relatives and servants from the land they currently occupied. However, that cannot be maintained for two reasons. First, the land that the defendant is residing on is a registered land. The claimant failed to plead rectification of title in the claim to necessitate that cause of action. Without pleading of sort, there is certainly no basis for the court to litigate the matter. Second, as clarified by the claimant, the dispute here is in relation to the Sinasu’u customary land. I have accepted the evidence that the defendant is not a party to the 1971 case. This therefore means that the rights of the defendant and his family to use and roam the Sinasu’u customary land is not extinguished or excluded by that case. The case to restrain the defendant and or his family and relatives from the Sinasu’u customary land in the light of that finding, and coupled with no referral of the dispute to the customary courts must mean that there is no cause of action in the claim.
33. In Noro v Saki^[8], the Court of Appeal stated the test to be followed in an application to strike out:
    • “The Judge identified the test on an application to strike out as the Court looks only at the claim and considers the facts asserted in the statement of the case and then decides whether, assuming that the asserted facts are true, there is a viable cause of action against the defendants for the relief sought.”^[9]
34. The court continued:
    • “As the Judge identified, on an application to strike out based on an allegation that the claim revealed no cause of action, the Judge must assume the claim can be proved. The Judge must then ask – assuming that Claimant can prove all these allegations, does the claimant have a sustainable cause of action? With these facts proved could the claimant succeed? If the answer is yes, the claim cannot be struck out.”^[10]
35. I have looked at the claim filed for this matter and ask myself the question of whether, the claimant has a cause of action that can be sustained? With the facts in support of the claim, can the claim succeed? With the explanations earlier provided, I answer all these questions in the negative. The claim in effect is to ask for reliefs to declare ownership of the Sinasu’u customary land in favour of the claimant as against the defendant despite they were not party to any previous land case before the chiefs, Local Court or the Customary Land Appeal Court regarding the Sinasu’u customary land. That cannot be so. The claimant cannot bypass or skip the customary courts and come directly to this court to make that finding. This is an abuse of the court’s process which is a ground for dismissal of the proceeding under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
    1. I have also noted the defendant is currently residing on a registered land which unless the claim is for rectification of title, the injunctive orders and eviction orders cannot be sustained. Even if the issue is one of boundary, the land demarcated to be registered was done with certainty and upon the inaction of the claimant to dislodge the strike out order of the High Court in 2020, I do not think that can change the finding in the 1996 determination. Further, the restraining orders are for the Sinasu’u customary land. Due to no evidence of referral of the dispute to the chiefs, the claim lacks a cause of action in the light of the Court of Appeal case of Simbe v East Choiseul Area Council^[11]referred to earlier.
36. On those reasons, even if leave to amend the claim is granted, it will not cure that inherent defectiveness discovered.
37. The application to strike out the claim is granted with cost to be paid to the defendant on standard basis.
38. Having reached this finding, it is needless for me to consider the remaining application on the point or issues of law since the outcome of this application therefore nullifies the existence or survival of that application. This second application is dismissed as well.

Orders of the court

(1) The application to strike out the claim pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted.
(2) In consequence hereof, the claim filed on 10^th October 2023 is struck out pursuant to rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
(3) The application to determine the preliminary question or issues of law filed by claimant on 25^th January 2024 is dismissed.
(4) Cost of this application is to be paid by the claimant on standard basis.

Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] Penrose Palmer and David Totorea.
^[2] Filed on 13^th November 2023.
^[3] HCSI CC 395 of 2021.
^[4] See exhibit “FTN2” of further sworn statement of Francis Tafea Nee filed on 20^th December 2023.
^[5] Filed on 13^th November 2023.
^[6] [1999] SBCA 9; CA-CAC 8 of 1997.
^[7] [1981] SBHC 12.
^[8] [2016] SBCA 16.
^[9] At paragraph 6.
^[10] Paragraph 10.
^[11] See footnote 6.