Kepo v Nalegolomo [2025] SBHC 80; HCSI-CC 660 of 2020 (6 May 2025)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kepo v Nalegolomo
Citation:
Date of decision:	6 May 2025
Parties:	Calwin Kepo and Simmy Vazarabatu v Lazarus Nalegolomo
Date of hearing:	6 May 2025
Court file number(s):	660 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Claimants are entitled to a declaratory order that customary land ownership of Duadua Customary Land had been determined by the Choiseul Local Court in 1968 in favour of the Claimants’ ancestor namely Peter Tavoto. 2. The Claimants are entitled to a declaratory order that the case number 9 of 2009 before the Western Customary Land Appeal Court in 2019 is not applicable to them as neither the Claimants nor their clan were a party to those proceedings. 3. The Defendant and his family, relatives, clan members, agents, servants or persons acting under his instructions are permanently restrained from harassing, intimidating and threatening to evict the Claimants and their family and clan members from Duadua Customary Land. 4. The Defendant is to return to the Claimant, Simmy Vazarabatu the sawn timbers that were removed from the area of Simmy Vazarabatu’s house on or about 22 November 2021 within 7 days of this order. 5. The Defendant is to pay the costs of the Claimants on the standard basis. There is no order for costs in respect of the contempt proceedings. Each party is to bear their own costs in respect of the contempt proceedings.
Representation:	Mr B Dalipanda for the Claimants Ms L Ramo for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Court (Civil Procedure) Rule 2007, r23.6, 23.3 and 23.11
Cases cited:	Majoria v Jino [2007] SBCA 20, Panisi v Matezama [2019] SBCA 22, Talasasa v Paia [1980] SBHC 2

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 660 of 2020

BETWEEN:

CALWIN KEPO and SIMMY VAZARABATU
(Representing the Tavoto Clan of Choiseul Province)
Claimants

AND:

LAZARUS NALEGOLOMO
Defendant

Date of Hearing: 14 and 15 April and 8 May 2025
Date of Decision: 6 May 2025

Mr B Dalipanda for the Claimants
Ms L Ramo for the Defendant

Lawry; PJ

JUDGMENT

1. This is a case concerning Duadua customary land in Choiseul. Both the Claimants and the Defendant claim to be from the Duadua tribe which has several clans.
2. In 1968 there was a dispute heard in the Lauru Local Court concerning the ownership of Duadua customary land. That is case No 4 of 1968. The parties were Mark Qilavae and Peter Tavoto. The decision of the court was recorded as:
   • “the Peter Tavoto will be owner the land of Duadua”
3. The Claimants are the descendants of Peter Tavoto. They have complained that the Defendant in the present proceedings:
   • (i) has intimidated and harassed them;
   • (ii) has permitted others to steal timber from the house of one of the Claimants; and
   • (iii) is trying to chase the Claimants out of Duadua customary land.
4. For nearly forty years after the decision in case 4 of 1968 there appears to have been no problem concerning the ownership of Duadua customary land. However, in the last twenty years there has been a series of customary cases concerning that land or issues relating to chieftainship within Duadua tribe. A principal issue is whether the Defendant is bound by case number 4 of 1968 and who is bound by the cases concerning Duadua land following the decision in 4 of 1968.
5. The Defendant has deposed that he is the chief of Duadua tribe. He says he is of the Takara clan of the Duadua tribe. He has claimed he is not bound by the decision in case number 4 of 1968. It must be kept in mind that case number 4 of 1968 was a dispute concerning the ownership of Duadua customary land between Mark Qilavae of the Retoreto tribe and Peter Tavoto of the Duadua tribe. It was not a dispute between the clans of Duadua tribe. It follows that of those of Duadua tribe can rely on the case number 4 of 1968 in disputes with those of Retoreto tribe.
6. In the claim three orders are sought:
   • (a) A declaratory order that customary land ownership of Duadua Customary Land had been determined by the Choiseul Local Court in 1968 in favour of the Claimants’ ancestor namely Peter Tavoto; and
   • (b) A declaratory order that the 2019 case before the Western Customary Land Appeal Court is not applicable to the Claimants given that the Claimants were not a party to the proceeding: and
   • (c) Consequential to orders 1 and 2 above, an order that the Defendant and his family, relatives, clan members, agents, servants or persons acting under his instructions be permanently restrained from harassing, intimidating and threatening to evict the Claimants and their family and clan members from Duadua Customary Land.
7. The Defendant denies that the Claimants are entitled to the relief sought. The parties have both called evidence and have set out agreed facts and issues as follows:
   • “Agreed Facts
   • (a) The Claimants Calwin Kepo and Simmy Vazarabatu represent the Tavoto Clan of Duadua tribe, Northwest Choiseul, Choiseul Province.
   • (b) The Defendant Lazarus Nalegolomo represents Tagara clan of Duadua tribe, Northwest Choiseul.
   • (c) The Lauru Local Court civil case No 4 of 1968 dealt with the issue of ownership of Duadua customary land between Mark Qilavae of Retoreto Tribe and Peter Tavoto of Duadua Tribe. The case was decided in favour of Peter Tavoto of Duadua Tribe.
   • (d) That civil case No 4 of 1968, is in favour of the Claimants’ grandfather Peter Tavoto of the Tavoto Clan. That decision has judicially determined the genealogy, land, boundary, history, chief and ownership of Duadua land. The said 1968 local court decision has not been appealed further.
   • (e) On the 28th June 2019 the Local Court ruled that’s the decision of the Tavula/South Batava Council Chiefs panel be dismissed for being biased and non-procedural. This local matter emanates from the 2008 House of Chiefs decision that was subsequently referred to Lauru Local court in 2019.
   • (f) The 2005 Varisi Council of Chiefs was between Ivan Sarevaka (plaintiff) vs Lazarus Nalegolomo (defendant).
   • (g) The issue/charge before the 2014 Varisi Council of Chiefs is on “Defying of Duadua true genealogy and trespassing into boundary of workplace.”

Issues

1. Whether or not the Claimants were a party to the 2005 Varisi Council of Chief between Ivan Sarevaka and Lazarus Nalegolomo, a matter that was convened purposely to determine the issue of Chieftaincy as it relates to Ivan Sarevaka and Lazarus Nalegolomo, rather than ownership over Duadua land.
2. Whether or not the Claimants were a party to the 2008 Tavula/South Batava Council of Chiefs case regarding Duadua customary land.
3. Whether or not the Claimants were a party to the Lauru Local Court decision in 2019, a decision that does not disagree with the 1968 Lauru Local Court decision in favour of the Claimants’ grandfather Tavoto.
4. Whether or not the version of the Lauru Local Court decision 2019 marked “LN–2” as appended to the Defendant’s sworn statement is the true and authenticate decision of the Lauru Local Court.
5. Whether or not the claimant were a party to the 2014 Varisi House of Chiefs, a chief’s decision that is also contradictory to the ruling of the Local Court Civil Case No 4/68 regarding the change of genealogy in the Local Court Civil Case No 4/68.
6. Whether or not, the Claimants were a party to the Western Customary Land Appeal Court (WCLAC) decision of 2019 relied on by the defendant in this case, a decision that is contrary to the decision of the Lauru Local Court civil case number 4/68 by furthering the contradiction of the Lauru Local Court Civil Case No 4/68 decision
7. Whether or not the Defendant is a member of Duadua tribe through his Tagara clan.
8. If the answer to 5 above is yes, whether or not the Local Court decision in Civil Case No 4/68 binds the Defendant.
9. If the answer to 5 above is No, whether or not, the Local Court decision in Civil Case No 4/68 prevails over the 2005 Varisi House of Chiefs, 2008 Tavula/South Batava Council of Chiefs; 2014 Varisi Council of Chiefs, 2019 Lauru Local Court regarding Duadua customary land.”
8. The descendants of Peter Tavoto are asserting that Duadua land has been proven to belong to the descendants of Peter Tavoto because of the finding in case number 4 of 1968. They, as grandsons of Peter Tavoto submit that they are the owners of Duadua customary land, inherited from their grandfather. Similarly, the Defendant seems to rely on the 2019 WCLAC case to claim that the Tavoto descendants are not entitled to be on Duadua land.
9. Peter Tavoto was clearly of the Duadua tribe. The evidence of the Defendant to the contrary was clearly a deliberate lie. I found that little weight at all could be placed on his evidence. He gave contradictory evidence. He impressed as someone who was trying to manipulate the system and to re-write history. He had no credibility at all. His evidence that Peter Tavoto was not of the Duadua tribe conflicts with his own defence and more particularly with the agreed facts. At paragraph 1 of the Claimants statement of case the following is recorded:
   • “The Claimants are all adults and members of the Tavoto Clan of Duadua tribe of Choiseul Province and are capable of suing in their personal capacities as representatives of the Tavoto Tribe.”
10. The Defendant is taken to accept that which he does not deny. His response at paragraph 2 of his defence was as follows:
    • “Admits paragraph 1 of the statement of case in so far as it alleges that claimants are members of the Tavoto clan.”
11. There can be no denial that Tavoto clan is a clan of Duadua tribe. The first agreed fact is that the Claimants represent the Tavoto clan of Duadua tribe, Northwest Choiseul, Choiseul Province. The third agreed fact concerned case number 4 of 1968 and recorded that it dealt with the issue of ownership of Duadua customary land between Mark Qilavae of Retoreto Tribe and Peter Tavoto of Duadua Tribe.
12. The evidence from the Defendant that Peter Tavoto was not of Duadua tribe is rejected. It is clear that there is discord within Duadua tribe. It is also clear that the Defendant has embarked on a course to claim Duadua land for his Tagara clan.
13. The issues in the present case relate to the principle ‘res judicata’. In a ruling in the present case delivered on 7 June 2022 this Court said:
    • “The principle of res judicata was considered in Majoria v Jino [2007] SBCA 20. The Court adopted what had been said in Talasasa v Paia [1980] SBHC 2 concerning the essential elements of the principle:
    • “(i) an earlier case in which the cause of action or point in dispute was really the same;
    • (ii) a final determination by a court of that cause of action or point on its merits; and
    • (iii) the raising of the same cause of action or the same point which has been distinctly put in issue by a party who has had the action or point solemnly and with certainty decided against him.”
    • 4. The Court then went on to apply those principles saying:
      “On behalf of the First Respondent it was submitted that the Appellant is related to the plaintiffs in Veno and hence is bound by the judgment against them. No evidence was produced either at the trial or before us to substantiate this claim. At all events, much would depend on the precise nature of the relationship, if any. As we have already mentioned, the plaintiffs in that case did not purport to represent the Appellant or, for that matter, any members of his tribe. To the contrary, their whole case was that they were not members of the Kadiki tribe. It is not possible to accept that it is just that the Appellant or his tribe should by bound by the action of a litigant whose case depended on the repudiation of any connexion with them. Moreover, the issues in Veno were not those sought to be litigated by the Appellant in the present litigation, as appears from the above discussion of that case.”
14. I now address the issues raised by counsel. The first matter to acknowledge what is outlined in agreed fact (d) concerning case number 4 of 1968:
    • “That decision has judicially determined the genealogy, land, boundary, history, chief and ownership of Duadua land. The said 1968 local court decision has not been appealed further.”

Issue 1 - Whether or not the Claimants were a party to the 2005 Varisi Council of Chief between Ivan Sarevaka and Lazarus Nalegolomo, a matter that was convened purposely to determine the issue of Chieftaincy as it relates to Ivan Sarevaka and Lazarus Nalegolomo, rather than ownership over Duadua land.

15. The question posed is not helpful to resolving the relevant matters to consider in determining whether the Claimants are entitled to any of the three reliefs sought in the claim. However, the decision, albeit a chiefs’ decision determined that the chief of Duadua tribe was Kelosi. The Defendant points to a comment by the chiefs that both the Tavoto clan and the Tagara are from the same tribe. Being a Chiefs’ decision, any finding that is inconsistent with case number 4 of 1968 does not change the finding in case 4 of 1968. If the Defendant is correct that Ivan Sarevaka represented the Tavoto clan at the hearing in 2005 and that the Defendant represented the Tagara clan then the Defendant is bound by the finding that they are both of Duadua tribe. His assertion that Peter Tavoto had been the spokesman of Kelosi on behalf of the Duadua tribe in case 4 of 1968 must be viewed with some care as that is not apparent from the decision in case number 4 of 1968 and appears to be raised for the first time 38 years after the decision in 1968.
16. If the parties to the 2005 Varisi Council of Chief between Ivan Sarevaka and Lazarus Nalegolomo were each representing their clans then each clan in subsequent litigation may be bound by the finding that in 2005 the chief of Duadua land was Kelosi. If that decision is inconsistent with case number 4 of 1968 on the issue of Chieftainship, because of the finding that Peter Tavoto will be (or is) the owner of Duadua land, then case number 4 of 1968 to the extent that Peter Tavoto represented Duadua tribe would bind subsequent members of Duadua tribe.

Issue 2 - Whether or not the Claimants were a party to the 2008 Tavula/South Batava Council of Chiefs case regarding Duadua customary land.

17. It is unclear why this is an issue. The parties are set out on the face of the decision. The case was brought by Nehemiah of Kuaka clan. The Defendants are identified as Ben Sarevaka (Tavoto clan) and Lazarus Nalegolomo (Tagara clan). Although the Claimants in the present case are of the same clan as the First Defendant, they were not parties to the proceedings. If they had been I would have expected them to have been named as such. The Defendant was a party to that decision. As it is a chiefs’ decision it does not take precedence over the Local Court decision on any points where the two may be inconsistent. An effect of the decision though is that if Ivan Sarevaka represented the Tavoto clan then the Defendant cannot subsequently argue that the Tavoto clan are not part of the Duadua tribe, as he has done in these proceedings.
18. The answer to the issue posed is that the claimants were not a party to the 2008 Tavula/South Batava Council of Chiefs case regarding Duadua customary land.

Issues 3 and 4 - Whether or not the Claimants were a party to the Lauru Local Court decision in 2019, a decision that does not disagree with the 1968 Lauru Local Court decision in favour of the Claimants’ grandfather Tavoto.
Whether or not the version of the Lauru Local Court decision 2019 marked “LN–2” as appended to the Defendant’s sworn statement is the true and authenticate decision of the Lauru Local Court.

19. These issues are inter-related. The version of the decision marked LN-2 was created in 2023. I accept the evidence of Dayson William Boso that the decision was re-typed to include information that was not on the original copy of the decision. I accept the evidence that it was created using information from the Defendant as to who the parties were. There were the true copies of the decision held at Taro and at Gizo. They were the same in form and appear at Annexure CK-3 in the sworn statement of Calwin Kepo filed on 15 January 2021, and at CK-9 annexed to the sworn statement of Calwin Kepo filed on 15 November 2024. The version annexed to the sworn statement at annexure LN-2 sets out names of persons said to be parties. That information is incorrect in that it lists Simmy Vazarabatu as the Third Respondent. I do not accept he was a party to the proceedings. I accept that he was never served with the proceedings. The evidence of Rochester Zutu confirms that he was not a party to the proceedings. The decision itself makes it clear he was not a party to the proceedings. It records that the Appellant at issue 2 had relied on case number 4 of 1968. That paragraph records the position of Lazarus Nalegolomo before the Lauru Local Court in 2019 as:
    • “Duadua land and its chief have been dealt with since 1968 civil case no 4/68. Confirming their genealogy, land, boundary, history and their chief. This has been supported by Varese Council of Chiefs in 2005 upheld the same decision Civil Case no 04/68. This has been confirmed by the documents submitted to the panel by the appellants”
20. Case number 3 of 2009 being a decision of the Lauru Local Court delivered on 28 June 2019 was an appeal brought by Lazarus Nalegolomo against Nehemiah Poloso and David Poloso of the Kuaka clan. The Court recorded the position of the Defendants as follows:
    • “The Defendant parties submitted their statement confirming they are the right people of Duadua through the Kuaka clan; they have also submitted their genealogy, land boundary and history. They have submitted that Jack Ere has been a chief of Duadua appointed by chief Tava...”
21. Clearly the Claimants in the present case could not be claiming their entitlement through Kuaka clan nor their right through Jack Ere who after all did not arrive at Duadua land until 1983. In addition, when decision was delivered it included “The panel upheld the decision of the Local Court Civil Case No 4/68. This has confirmed that Kelosi’s descendant is the chief of Duadua tribe.” This is odd as civil case number 4 of 1968 did not confirm that Kelosi’s descendant is the chief of Duadua tribe.
22. Nehemiah Poloso and David Poloso then appealed that decision to the Western Customary Land Appeal Court. Only two respondents are named as a party to the proceedings. Lazarus Nalegolomo and the Choiseul Local Court. Had the Claimants in the present proceedings been a party to the Lauru Local Court case 3 of 2009 in 2019 I would have expected them to have been named as respondents in the Western Customary Land Appeal Court.
23. It is clear that the Claimants were not a party to case number 3 of 2009 being a decision of the Lauru Local Court delivered on 28 June 2019.

Issue 5 - Whether or not the claimant were a party to the 2014 Varisi House of Chiefs, a chiefs’ decision that is also contradictory to the ruling of the Local Court Civil Case No 4/68 regarding the change of genealogy in the Local Court Civil Case No 4/68.

24. The 2014 Varisi House of Chiefs’ decision was a hearing into a charge of defying of Duadua true genealogy and trespassing into boundary of work place. Necessarily it involved issues of Duadua land. What did come out of it was that both the Defendant in the present proceedings and Simmy Vazarabatu originated from Nabolo, contrary to what the Defendant said on oath before me. The order of the Court was for both sides to resolve themselves and establish peace and unity between themselves, since they both reside and developed within the land of Duadua.
25. In 2014 the decision was as set out in the agreed facts at paragraph (g):
    • “The issue/charge before the 2014 Varisi Council of Chiefs is on “Defying of Duadua true genealogy and trespassing into boundary of workplace.”
26. The question asked is whether the Claimant was a party to that case. The Claimant Simmy Vazarabatu was a party as was the Defendant Lazarus Nalegolomo. It made no determination about the ownership of Duadua land and contrary to the evidence of the Defendant was not a finding in his favour.

Issue 6 - Whether or not, the Claimants were a party to the Western Customary Land Appeal Court (WCLAC) decision of 2019 relied on by the defendant in this case, a decision that is contrary to the decision of the Lauru Local Court civil case number 4/68 by furthering the contradiction of the Lauru Local Court Civil Case No 4/68 decision

27. The Claimants were not named as a party to the proceedings in 2019 before the Western Customary Land Appeal Court. Had they been a party to those proceedings their names would have appeared in the intituling. It does not. Even had they been a party to the decision in the Lauru Local Court in 2019 that would not make them a party to the appeal filed by Nehemiah Poloso and David Poloso. I accept the evidence that they had no notice of any such appeal and were not parties to that decision.
28. Counsel for the Defendant submitted that they could have applied to join in the appeal. That does not make them a party. If the question intended to be posed was whether they are bound by the decision of the WCLAC, the answer is that not even their clan was a party to the proceedings. On the principles of res judicata they could not be said to be bound by WCLAC 9 of 2019.

Issues 7 and 8 - Whether or not the Defendant is a member of Duadua tribe through his Tagara clan.

If the answer to 5 above is yes, whether or not the Local Court decision in Civil Case No 4/68 binds the Defendant.

29. Both parties agree that the Defendant is a member of Duadua tribe. If the Defendant is correct and that Peter Tavoto was a spokesman for the chief of Duadua then it could be said that as a member of the tribe he is bound by the decision in case number 4 of 1968. However, the res judicata principles have other requirements than just whether he is of the tribe who is a party to the proceedings. As a member of the Duadua tribe he certainly could not assert that the Claimants are not entitled to be on Duadua land.
30. The letter he wrote on 26 April 2020 annexed as SV-2 to the sworn statement of Simmy Vazarabatu filed on 11 July 2024 is contrary to all the evidence placed before me and demonstrates a disregard for the Courts of Custom by the Defendant just as his attitude has shown contempt for the orders of this Court, which required him to return timbers removed from the premises of the Claimant Simmy Vazarabatu. Even those who came to support him in Court reacted to some of his evidence in Court that was clearly untrue. They are entitled to expect better from someone of their clan in a position of leadership.
31. The decision in case number 4 of 1968 has stood the test of time and has been relied on by the Defendant in other proceedings placed before this Court. It was clearly accepted by the members of Duadua tribe for 38 years. For the Defendant to now assert that the Claimants are not of the Duadua tribe is not only contradictory to the Defendant’s stated position, it is an affront to the elders of his tribe who have now passed on and to the decisions of the Courts of custom that have followed.
32. The Claimants are entitled to the relief that they seek. It is clear that they are entitled to a declaratory order that customary land ownership of Duadua Customary Land had been determined by the Choiseul Local Court in 1968 in favour of the Claimants’ ancestor namely Peter Tavoto.
33. The Claimants are entitled to a declaratory order that the case number 9 of 2009 before the Western Customary Land Appeal Court in 2019 is not applicable to the Claimants as neither the Claimants nor their clan were a party to those proceedings.
34. The Defendant and his family, relatives, clan members, agents, servants or persons acting under his instructions are permanently restrained from harassing, intimidating and threatening to evict the Claimants and their family and clan members from Duadua Customary Land. It is a criminal offence to intimidate the Claimants.
35. On 3 September 2024 the Court made the following interim orders:
    1. “An Interim Order that the Defendant together with his family members, tribal members, agents, associates or person acting under his purported authority are restrained from intimidating, threatening, approaching, assaulting, disturbing, or attacking the Claimants and their family members, immediate and extended, associates and agents within Duadua tribal customary land and outside of Duadua customary land in Choiseul Province.
    2. An Interim Order that the Defendant together with his family members, tribal members, agents, associates or persons acting under his purported authority are restrained from entering and removing any properties of the Claimants from their residences (within and surrounding).
    3. An Interim Order that the Defendant’s agent Police Officer Waldor Nowak return to (Simmy Vazarabatu, the Claimant) sawn timbers belonging to him (about 300 plus pieces of various sizes) removed from Mr Vazarabatu’s compound on or about the 22^nd November 2021.
    4. An Interim Order that the Defendant together with his families, tribal members, employees, agents, associates or person acting under his purported authority are restrained from damaging, vandalising or caused damage, destroy, remove any properties belonging to the Claimants within and around Duadua customary land in Choiseul Province.
    5. An Interim Order that a Penal Notice be attached and any breach of this order, amounts to a contempt of Court and liable to be prosecuted, and if found guilty to the payment of a fine and or imprisonment.
    6. The Royal Solomon Islands Police (RSIPF) or Taro RSIPF to facilitate the execution and service of the Order, and to deal with both parties to comply with these Orders.”
36. I am satisfied that orders 1, 2, 4, 5 and 6 should now be made permanent orders. Order 3 was made in the form sought by the Claimants. I am satisfied that the sawn timbers were removed by the Defendant’s clan. The timbers were taken with the Defendant’s knowledge if not at his direction. In place of order 3, I now order that the Defendant return to the Claimant, Simmy Vazarabatu the sawn timbers that were removed from the area of Simmy Vazarabatu’s house on or about 22 November 2021 within 7 days of this order.

Contempt

37. The Claimants applied for the Court to find that the Defendant and his relatives were in contempt of the injunctive orders made by the Court. The application is in the following terms:
    • “The Applicant/Claimants apply for the following orders under Rules 23.2, 23.5 and 23.6 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). The application is couched under Rules 23.3 and 23.11 CPR.
    • An Order that unless the defendant deposed within the next seven days from date the defendant is served, through a Sworn statement and served on the Applicant/Claimant the reason/s as to why they have not complied with the Interim Order issued by the Court on 3 September 2024 against the defendant and his relatives, supporters and agents and in particular in regards to Order 3, specifically for the return of Simmy Vazarabatu’s sawn timber, the following persons shall be committed to prison.
      • (i) Lazarus Nalegolomolo
      • (ii) Waldor Nowak, a Royal Solomon Islands Police Officer and a Tagara clan member.
      • (iii) Sebastian Vilaka of Rabakela Village and a Tagara Clan member.
38. An Order that Lazarus Nalegolomo, Waldor Nowak and Sebastian Vilaka once committed to prison, shall not be released from prison unless they, or the defendant have purged their contempt by taking the following action:
    1. By returning the sawn timbers removed from Simmy Vazarabatu’s residence and returned to the second named Claimant within the next seven days from date of the contempt order.
    2. Cease from intimidation and harassment of the Claimant and their relatives directly or indirectly, residing on Duadua land, Northwest Choiseul or elsewhere.”
39. The application was served on counsel for the Defendant and on each of the Respondents. At the hearing of the application for contempt the Court received confirmation that the application and evidence in support had been personally served on each of the Respondents. The Court then explained to each Respondent how it was alleged that they were in contempt of the Court orders. Each of them chose to give evidence and were cross examined.
40. Since the hearing the trial has proceeded and the Court has heard addresses from counsel and further addresses specifically on the issue of the application for contempt. The cross examination and the submissions concentrated on the failure to return the timbers taken from the Claimant’s residence. The main submission on behalf of the Respondents was an allegation that the timber had been taken from land that did not belong to the Claimant. That issue is irrelevant as the Court had made it clear that the timber was to be returned. However, order 3 which was relied on by the Claimants and was in the form sought by the Claimants required the timbers to be returned by Waldor Nowak. He deposed that he had not been present when any timbers were removed and did not know where they were. He gave evidence and was cross examined on that issue. Before the Court finds someone in contempt the Court must be satisfied beyond reasonable doubt that the failure to comply with the Court order was intentional or deliberate. This is clear from the Court of Appeal decision Panisi v Matezama [2019] SBCA 22.
41. There is no doubt that the Defendant knew that the Court intended to that the order be understood to mean that the timbers were required to be returned to the Claimant. However, I am not satisfied to the required standard that Waldor Nowak knew the whereabouts of the timber. He could have easily found them if he chose to make enquiries with the Defendant and his clan. I find myself in the position that he is entitled to the benefit of the doubt. There is no doubt that there has been continued intimidation by the Defendant’s clan. They have been very entrenched in their views about the ownership of Duadua land. That is at the heart of what the trial was about. As the intimidation was not the principal focus of the contempt proceedings, I am not minded to make orders against the Defendant or his clan. The application for contempt is therefore dismissed. The Defendant’s explanation that the Claimants should not have brought the application for contempt is however rejected. As a leader of the clan it was his responsibility to ensure the timbers were returned and he deliberately failed to ensure that the timber was returned. The fact that the Defendant considered that the order was contrary to his version of who was the owner of the timber is not relevant.

Order

1. The Claimants are entitled to a declaratory order that customary land ownership of Duadua Customary Land had been determined by the Choiseul Local Court in 1968 in favour of the Claimants’ ancestor namely Peter Tavoto.
2. The Claimants are entitled to a declaratory order that the case number 9 of 2009 before the Western Customary Land Appeal Court in 2019 is not applicable to them as neither the Claimants nor their clan were a party to those proceedings.
3. The Defendant and his family, relatives, clan members, agents, servants or persons acting under his instructions are permanently restrained from harassing, intimidating and threatening to evict the Claimants and their family and clan members from Duadua Customary Land.
4. The Defendant is to return to the Claimant, Simmy Vazarabatu the sawn timbers that were removed from the area of Simmy Vazarabatu’s house on or about 22 November 2021 within 7 days of this order.
5. The Defendant is to pay the costs of the Claimants on the standard basis. There is no order for costs in respect of the contempt proceedings. Each party is to bear their own costs in respect of the contempt proceedings.

By the Court
Hon. Justice Howard Lawry
Puisne Judge