HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 23 of 2003

Eric Iupwea and Oswel and Wilimae
(representing themselves and the Oha Tribe of Ulawa, Makira/Ulawa Province)

v.

Gabriel Hura’a, Casper Kalangaeli, Abel Ngereiseu, Nathaniel Ha’auriakalo, Reuben Liliu, Maxly Tahisimae, Wulston Hura’a and Lent Hura’a (representing themselves and members of the Talapaina Tribe of Ulawa, Makira/ Ulawa Province)

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 9th September 2003
Date of Judgment: 20th October 2003

D. Tigulu for the Plaintiffs
K. Averre for the Defendants

Palmer J.: The Plaintiffs claim ownership of Oha customary land on behalf of themselves and the Oha tribe of Ulawa Island, Makira/Ulawa Province. They rely primarily on three court decisions, (i) Ezekiel Mudesau v. Eric Iupwea Case No. b/3/21b, June 1980 (“the first Decision”), (ii) Timothy Matawa v. Eric Iupwea Civil Case No. 1/83, April 1983 (“the second Decision”), and (iii) Eric Iupwea and Oswell Wilimae v. Gabriel Hura’a Case Number B/3/21C, 10th June 2002 (“the third Decision”). The Plaintiffs claim those decisions had finally determined issues concerning boundaries and ownership over Oha land as between the parties, that the Defendants are bound by those decisions and estopped from re-asserting any fresh rights or issues of ownership over those lands as they came from the same tribe, the Talapaina tribe, whose claims had been agitated and represented before the courts by Ezekiel Mudesau (“Mudesau”) and Timothy Matawa (“Matawa”). The Plaintiffs claim the Defendants had trespassed into their land areas and seek injunctions to prevent them from continuing with their trespass.

The Defendants on the other hand say that Mudesau and Matawa were not members of the Talapaina tribe and therefore could not have represented their tribe in those cases, although it appeared that both those persons had appeared in those cases on the basis that they were representing the Talapaina tribe. That issue was dealt with by the Local Court in its decision of 10th June 2002 (the third Decision), that Gabriel Hura’a and his father Henry Malau were related to the previous disputants Mudesau and Matawa. That decision is now awaiting an application for mandamus before the High Court which if granted would enable Gabriel Hura’a to file an appeal to the Customary Land Appeal Court against that decision of the Local Court. 

Further the Defendants deny any trespass into the southern portion of Oha land as demarcated in the first Decision, but in so far as any new houses may have been constructed and recent activities conducted, they say these were done by those defendants who were members in any event of the Plaintiffs tribe and therefore have equal rights of usage over the said land.

By order of this Court dated 9th May 2003 (“the Consent Order”) obtained by consent of the parties, it was agreed that the action in Civil Case No. 23 of 2003 (“CC 23/03”) be stayed pending determination of the issues raised in Civil Case No. 92 of 2003 (“CC 92/03”). The reasoning behind the issue of the consent order for stay was that if the application in CC 92/03 were successful, this would enable an appeal to be lodged by the Defendants against the third Decision. This in turn would mean that if the appeal was successful, the Defendants would be able to commence proceedings afresh challenging the claims of ownership of the Plaintiffs over Oha land. In turn this would leave in doubt the claims of trespass and injunction raised in this case until final determination of the claims in custom of the Defendants. 

Paragraph 2 of the Consent Order provided that the Defendants were not to build any more houses, mill timbers and destroy any of the Plaintiff’s properties within Oha land as described in paragraph 3 of the Statement of Claim filed in this case, pending determination of the issues in CC 92/03. Unfortunately, the Plaintiffs have had to come back to court for orders to have the stay lifted on the grounds that the order of the court had not been complied with by the Defendants. The Plaintiffs have deposed to breaches which have occurred within their boundary of Oha land. 

I have had time to conduct a careful review of the grounds on which the orders of stay had been obtained by consent from this court. In so doing I have come to the conclusion that the order for stay should be lifted. One of the crucial issues for determination before this court will be the question on the application of the doctrine of res judicata raised by the Plaintiffs in respect of the two earlier decisions. Issues of res judicata are matters which directly fall within the purview of this court. And depending on how the court should rule in respect of such claim, issues of trespass and rights of usage stemming from membership of the Plaintiff’s tribe may in turn also fall within the competence of this court for determination. Of particular relevance is the fact that in taking carriage of those matters that does not detract from the applications currently pending before this court in CC 92/03, or any application that may later be filed. In other words, I am not satisfied that lifting this order for stay will prejudice the action in CC 92/03. It may transpire that the judgement of this court in this case may render any further applications unnecessary. 

Accordingly I am of the view that this action should be allowed to proceed to trial. Costs should be in the cause.

The Court.