Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Buka v Rove [2016] SBHC 104; HCSI-CC 150 of 2013 (14 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 150 of 2013

BETWEEN:

MRS MASEOLO BUKA, MR VOENASI SILAS AND MR JOSIAH DAVID.
Claimant
(Representing themselves and Members of Duagula Clan of the Vuruvasu Tribe)

AND:

GAGO ROVE, MRS MARGARET TIGULU, MR KENNETH MAMU AND
MR HAMLET WARREN.
Defendants
(Representing themselves and Members of Veala Tribe)

Date of Hearing: 2^nd June 2016.
Date of Judgment: 14^th July 2016.

Mr. N. Laurere for the Claimants.
No appearance for the Defendants.

KENIAPISIA; PJ:

JUDGMENT

1. At commencement of trial, defendants were not in Court, either in person or through their legal representative. Counsel Laurere for the claimants submitted, he was ready to proceed with trial. Mr. Laurere had no knowledge about his friend’s non-attendance in Court. Martha Manaka is counsel on record for the defendants. Her absence is without prior notice.
   
2. I asked Mr. Laurere to check with his clients, if the defendants are in Court personally. After checking, Mr. Laurere informed the Court, that the defendants are not in Court. Mr. Laurere also relayed to me that his clients are aware the defendants have come over to Honiara to attend trial.
   
3. Being satisfied that the defendants are not in Court personally, I commenced to hear submissions from Mr. Laurere. I granted leave to proceed with trial under Rule^[1] 12.24 (b), even though the defendants are not in Court. Rule 12. 24 (b) reads:
   

“If a defendant does not attend when a trial starts...:-

(b). the claimant, with leave of the Court, may call evidence to establish that the claimant is entitled to judgment against the defendant and the Court may, after hearing the claimant and considering any Court book and any sworn statements, give judgment for the claimant.”

4. Mr. Laurere introduced his only witness; Mrs. Maseolo Buka, to confirm her evidence in chief as per sworn statement (ss) in the Trial Book (TB), at page 26. Having gone through the ss, Court admitted the ss to be used in the proceeding. There are other ss in the TB, including the defendants’, which I also considered.
5. Mr. Laurere then made submissions on the three issues agreed for trial at page 8 of TB. The first issue is (i). “Whether claimants have customary ownership over “Pekopezo” customary land also known as “Patubolibolivi” area? Claimants rely on the 2012 Kubokota Chiefs decision. The said Chiefs’ decision did conclude in favour of the claimants, regarding ownership of the disputed land. The defendants’ defence as gathered from the TB is that, the disputed land has already gone through a previous Court case, where the Court found in favour of the defendants’ tribe, then represented by one named Rove Ghere. And therefore under the principle of Res judicata, the Kubokota Chief’s Court of 2012 or this Court, does not have power to hear the same dispute between the same parties again. The defendants’ witnesses are not in Court to be cross-examined on this. Therefore the Court does not know whether the parties in the present case are the same parties in the 1974 case, relied on by the defendants. Claimants deny the position taken by defendants.
6. On plain reading of the 1974 decision in the TB, the parties are not the same, the issues are not the same and I am not sure if the land in dispute is the same. The 1974 case is between Rove Ghere and a Cattle Company operated by one named Tauku – Nole Ukena Development Company. At a relevant paragraph of the 1974 decision, this is what the then High Court said: -
   

“Before going on any further, it is necessary to note that the case has throughout being misconceived. The defendant, B. Tauku has at no stage been personally a party to the action; he is appearing only in his capacity as Manager of a Company called the Nole Ukena Development Company. Records show that it is not a registered company, but a registered partnership.”^[2]

7. Therefore, I conclude that the essential grounds to precede a finding on res judicata as per authorities decided in this Court are not present in this case, as between the claimants’ tribe and the defendants’ tribe. The grounds precedents for res judicata are: that the earlier judgment relied on was a final judgment, and that between the former and the present litigation, there is identity of parties and of subject matter or cause of action^[3].
   
8. I have read the previous land cases that are in the TB; at pages 9, 10 and 14. I agree with Mr. Laurere that those cases are different, and cannot be used as res judi cata by the defendants’ tribe. There is no identity of parties and subject matter. Therefore on the third issue; I conclude that (iii). “the land under dispute is not caught by res judicate in favour of the defendants”.
9. The only land case, that is now left binding, as between claimants’ tribe and defendants’ tribe, is the 2012 Chiefs’ decision by Kubokota Council of Chiefs dated 27/12/2012 (“KCC 2012”); at page 31 of TB. That decision shows that the claimants’ tribe are the owners in custom of the disputed block of land, belonging to deceased Duagula, her children and grand-children. Claimants are the current descendants of deceased Duagula. Witness Mrs. Maseolo Buka confirmed this in her oral evidence.
   
10. On the materials before me, having considered the TB and submissions by Mr. Laurere, I am satisfied on the balance of probability, that the claimants are the owners in custom of Pekopezo customary land, Ranogga Island, Western Province. That land according to the KCC 2012, is the block of land, upon which the defendants have cut down a ngali nut tree and have partly built a house. Map of Pekopezo land, presented by claimants’ tribe, before KCC 2012 is at page 42 of TB (coloured yellow). I am satisfied that the chiefs had made a survey and certified the map presented by claimants^[4]. I am satisfied on the second issue (ii) “that defendants had tress passed onto claimants land and liable in damages” to be separately assessed.
    
11. Accordingly, claimants succeeded on their claim. The orders of the Court are:-
    

11.1 Defendants, their families, tribe members, relatives, servants and agents are permanently restrained from entering and occupying Pekopezo block of land, Patubolibolivi area, on Ranogga Island, Western Province.

11.2 Damages to be assessed separately.

11.3 Costs awarded to claimants.

THE COURT

----------------------------
JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Rule means Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] See pages 10 and 11, TB for the 1974, High Court decision.
^[3] Majoria –v- Jino (2007) SBCA 20; CA – CAC 36 of 2006 (1^st November 2007).
^[4] See KCC 2012, read and reconciled with oral evidence by Mrs. Maseolo Buka.