Batalofo v Kwalagau [2024] SBHC 51; HCSI-CC 510 of 2023 (22 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Batalofo v Kwalagau
Citation:
Date of decision:	22 May 2024
Parties:	Jackson Batalofo, Douglass Lui, Festus Niurara and Francis Sa’au v Chaniel Kwalagau
Date of hearing:	24 April 2024
Court file number(s):	510 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
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 19th October 2023 is dismissed pursuant to rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. 3. The application filed by the Claimants on 14th March 2024 for summary judgment is dismissed. 4. Cost of this hearing is to be paid by the Claimants to the Defendant on standard basis, to be taxed if not agreed.
Representation:	Mr S. L. D. K Getu for the Claimants Mr D Lidimani for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Umai v Kwalangau Malaita Local Court No. 5 of 1987, Batalofo v Saleúlia Malaita Native Court in 1964, Mae’afu v Batalofo Malaita Local Court No. 5 of 1967, Batalofo v Saleulia Native Land Appeal Case No. 2 of 1968, Dioko v Batalofo Malaita Native Court No. 8 of 1968, Dioko v Batalofo Native Land Appeal No.3 of 1969 and Batalofo v Oloni High Court of Solomon Islands CC No. 6 1980, Waleoi v Ne’e [2024] SBHC 5,
Cases cited:	Limitation Act [cap 18], Local Act [cap 19]

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 510 of 2023

BETWEEN

JACKSON BATALOFO, DOUGLAS LUI, FESTUS NIURARA
AND FRANCIS SA’AU
Claimants

AND:
CHANIEL KWALAGAU
(Representing himself and Anotafa tribe)
Defendant

Date of Hearing: 24 April 2024
Date of Ruling: 22 May 2024

Mr S.L.DK. Getu for the Claimants
Mr. D Lidimani for the Defendant

RULING

Aulanga PJ

1. There are two applications for me to consider. One filed by the Defendant to strike out the claim or alternatively, for summary judgment, and the other, is an application by the Claimants for summary judgment.
2. Both applications strive to achieve the same end result, that is, to prematurely end or terminate the proceeding without the trial.
3. I decide to first deal with the Defendant’s application since its outcome will determine the survival of the other application of the Claimants.
4. The claim is for declaratory orders or reliefs that the Claimants are the owners of the Fera’anabuanaoe customary land as against the Defendant and also to nullify or invalidate a 1987 land boundary case between Fera’anabuanaoe and Adeliua customary land on the ground of lack of jurisdiction of the Local Court to adjudicate over the dispute since it involves a registered land.
5. To set the scene, the Claimants assert they are the owners of Fera’abuanaoe customary land in West Kwaraáe in the Malaita Province. Their claim of ownership is based on six court decisions namely; Batalofo v Saleúlia Malaita Native Court in 1964, Mae’afu v Batalofo Malaita Local Court No. 5 of 1967, Batalofo v Saleulia Native Land Appeal Case No. 2 of 1968, Dioko v Batalofo Malaita Native Court No. 8 of 1968, Dioko v Batalofo Native Land Appeal No.3 of 1969 and Batalofo v Oloni High Court of Solomon Islands CC No. 6 1980.
6. The Defendant is from Anotafa tribe, a different tribe from the Claimants. The Defendant however is not a party in those land dispute cases but only as a witness through one of his members in the Mae’afu v Batalofo Malaita Local Court No. 5 of 1967 case.
7. The Claimants principal assertion is, as a result of the Defendant being a witness for the Claimants in the 1967 case, his line or tribe of Anotafa is bound by that decision that awarded the ownership of the Fera’abuanaoe customary land on the principle of res judicata. The other argument raised by the Claimants is, the case between Umai v Kwalangau Malaita Local Court No. 5 of 1987 that involves a boundary dispute between the Fera’abuanaoe and Adeliua decided in favour of the Defendant should be nullified. This is because it involved a registered land that the Local Court does not have jurisdiction to adjudicate.
8. Having in mind the background of the case, let me clarify that the claim filed by the Claimants herein is not a judicial review case. It is a Category A claim. Hence, for one of the reliefs sought by the Claimants, that is, to nullify the Umai v Kwalangau Malaita Local Court No. 5 of 1987, in my view, it is inappropriate for this Court to invoke its powers to review, quash or nullify that case on the obvious ground that the claim herein is not for judicial review. Even if the claim is for judicial review for example, the six months statutory time to file such claim calculated from the date of the decision sought to be reviewed has long gone pursuant to rule 15.3.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007. By the lapse of 37 year of time and without an application for leave to file the claim out of time, I do not think any High Court of this jurisdiction can entertain such claim to review a decision that was given way back in 1987 or so. Certainly, it will run afoul of the Limitation Act (Cap 18) as well.
9. This brings me to the next critical issue of whether this Court can make a declaratory order that the Claimants are the owners of the Fera’abuanaoe customary land as against the Defendant’s Anotafa tribe.
10. Let me begin on the premise that unlike a registered land, the task of awarding ownership of a customary land to a party or tribe is the function of the customary courts and not the High Court. A claim that runs afoul of this will certainly suffer the fate of dismissal of proceeding.
11. The unchallenged evidence I accept uncovered the Defendant is from the Anotafa tribe, a different tribe to the Claimants. Except for the Umai v Kwalangau Malaita Local Court No. 5 of 1987 case, his tribe has never been a party to the land dispute court decisions relied on by the Claimants. There is no evidence adduced by the Claimants to show the Defendant is related by blood to the losing parties to those decisions. The Defendant’s tribe’s involvement is only a witness for the Claimants (not the losing party) in the Mae’afu v Batalofo Malaita Local Court No. 5 of 1967.
12. Having said that, there are three obvious conclusions can be deduced based on the available evidence.
13. First, the Defendant’s tribe is not a party to the court decisions relied on by the Claimants. Hence, it must follow that the Defendant’s tribe is not bound by those decisions. Those decisions are only applicable and binding on the parties to the disputes. The only way to bind the Defendant’s customary rights to the said land is to commence proceeding before the courts established under the Local Courts Act (Cap 19) and not the High Court. Even if they are parties to a previous dispute such as in the Umai v Kwalangau Malaita Local Court No. 5 of 1987 case, due to the lack of instituting a judicial review case or filing of an appeal against that 1987 case to the Customary Land Appeal Court, the decision reached by that Court in relation to their rights to the said Fera’abuanaoe customary land will remain unchanged and will not be altered by this Court.
14. Second, it is an accepted evidence that a member of the Defendant’s tribe gave evidence in the 1967 case as witness for the Claimants. This means, his tribe gave evidence in their capacity only as a witness and not as a party to the dispute. There is no connection whatsoever by evidence to show the Defendant and the Claimants are one party. This point is made clearer in Maekiria v Lafisi HCSI CC 152 of 2006 referred to by counsel for the Defendant. In that case, Lafisi is a witness at the Local Court hearing for Alongolia who lost the ownership of Oterade land in Maekiria v Alongolia LAC No. 10 of 1989. Lafisi is of Radeni tribe while Alongolia is of Uúla tribe. Being the unsuccessful party, Maekiria claimed ownership of the entire Oterade the boundaries of which covers other lands including Radeni. Aggrieved by the decision, Lafisi, the former witness instituted a new case known as Radeni land case against Maekiria for the ownership of Radeni. The Radeni case was brought before the High Court upon appeal from the Malaita CLAC. At the appeal hearing, Maekiria argued res judicata on the basis of Lafisi status as a witness of Alongolia the losing party in the Oterade land case. Palmer CJ when dismissing the appeal explained the application of res judicata to that case as follows at [2]:
    • “Jack Alongolia bases his claim from the Malasata tribe while the Respondent from the Ailafa tribe. There doesn’t appear to be any connection between the two tribes. Also, Jack Alongolia bases his genealogy from Kwanadoe while the Respondent from Ialofo.”
15. His Lordship then concluded:
    • “...the distinction in the two claims is patently obvious and any suggestions that the two claims are one and the same and or that the parties are one and the same without basis and must be dismissed.”
16. The law of res judicata in so far as it relates to a land dispute case only applies to the disputing parties and not to a witness from a different tribe. As the evidence has established, the Defendant is from Anotafa tribe, different to the tribe of the Claimants. Unless there is evidence showing the Defendant is of the same tribe to the disputing parties, res judicata is inapplicable. Therefore, it is incorrect to say that the Defendant is bound by the decision of 1967 and by implication, the rights of the Anotafa tribe to the Fera’abuanaoe customary land has been defeated or extinguished.
17. Third and finally, the Defendant’s tribe is a witness for the Claimants in that 1967 case. The Claimants are the winning party in that case. In other words, the Defendant is not a witness for the losing party. Therefore, if anything to go by, the Claimants and the Defendant’s tribes are inseparable or partnered in their interests to win the case at that occasion. As such, I do not see any logic why the Claimants should come to this Court and ask to award ownership of the Fera’abuanaoe customary land against their own witness without resorting to the relevant customary courts. The only way to do so is, as stated earlier, to commence proceedings against the Defendants before the customary courts and not the High Court. Without resorting to the appropriate customary courts established under the Local Court Act (Cap 19) to make that finding, it does not make any legal sense for this Court to entertain such claim.
18. It is clear the Claimants commenced this claim for declaratory order or relief to award the ownership of the Fera’abuanaoe customary land to their favour against the Defendant’s Anotafa tribe. The Claimants decided to bypass the customary courts such as the House of Chiefs, the Local Court and the Customary Land Appeal Court and come directly to this Court to grant that relief. The law does not permit such controversial legal pathway. In Waleoi v Ne’e [2024] SBHC 5, at [35], this Court when dealing with a similar case made these statements equally applicable to this case:
    • “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.”
19. Based on those reasons, I agree and uphold the submission by the Defendant that by commencing the claim at this Court for the relief or order in awarding the ownership of the Fera’abuanaoe customary land in favour of the Claimants without referring the dispute to the courts established under the Local Court Act (Cap 19), and without adducing any evidence to show the connection of the Defendant’s tribe to the losing parties in the cases relied on by the Claimants, the claim obviously has no tenable cause of action and is an abuse of the Court’s process.
20. The application to strike out the claim under rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted. Consequently, I order that the claim filed on 19^th October 2023 is dismissed under rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. In the light of the findings, the alternative relief sought by the Defendant for summary judgment is not necessary to consider and must be abandoned.
21. Having reached this finding, it is needless for me to consider the remaining application, that is, the Claimants’ application for summary judgment as it now naturally dies as a result of the decision reached by the Court herein. Hence, it must be dismissed forthwith.
22. Cost of this hearing is to be paid by the Claimants to the Defendant on standard basis, to be taxed, if not agreed.

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 19^th October 2023 is dismissed pursuant to rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
3. The application filed by the Claimants on 14^th March 2024 for summary judgment is dismissed.
4. Cost of this hearing is to be paid by the Claimants to the Defendant on standard basis, to be taxed if not agreed.

THE COURT
Augustine Sylver Aulanga
PUISNE JUDGE