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Kobaka v Batava House of Chiefs [2012] SBHC 57; HCSI-CC 446 of 2011 (16 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 446 of 2011

BETWEEN

CHIEF COLLIN KOBAKA
Claimant

And

BATAVA HOUSE OF CHIEFS
First Defendants

And

AMOS KAVAKU
Second Defendant

Mr Kaboke for the Claimant
Ms Bird for the First and Second Defendants

Date of Hearing: 14th May 2012

Date of Judgment: 16th July 2012

Decision on application to strike out

1. The Claimant filed a claim on 3rd November 2011. He wants the court to quash a determination made by the Batava House of Chiefs. The claim encompasses some 11 pages and 47 paragraphs. What it all boils down to is there is a dispute between the Claimant and some members of the Kekepoqo tribe, including the Second Defendant, who do not want him as their chief. The matter has come to a head because the Second Defendant went to the chiefs and asked them to make a decision about who was the chief of Kekepoqo tribe. A copy of proceedings before the First Defendants and what they decided is exhibited as annexure CK12 to the sworn statement of the Claimant filed on 23rd January 2012.

2. The defendants have made an application to strike out the claim on the basis this court has no jurisdiction to entertain it or that it is vexatious and/or frivolous. The defendants say this is not a matter for the High Court; it is something that should be referred to the Local Court.

3. This is an issue which has been considered by the Court of Appeal recently. The court handed down a judgment on 25th November 2011 in the case of Lagobe v. Kidoe Maena and Others CA-CAC 14 of 2011. In that case the Appellant had asked the High Court to make declarations about the "enthronement" of another person as chief. In other cases involving customary land the Appellant had been found to be the owner of Customary Land and those decisions were by and large based on his role as Chief of the Reresare Tribe of Vella la Vella. His claim was struck out by the High Court and he appealed to the Court of Appeal. Their Lordships observed:

"The principal issue in the claimant's case before Chetwynd J was whether res judicata and/or issue estoppel apply to matters of custom such as, in this case, the customary right to tribal chieftainship where, unlike the earlier cases, the ownership of customary land is not itself in issue. If the court found against the claimant on that, it was necessary to consider whether the court had the power still to grant declaratory or injunctive relief as sought in the claim. If it did not so find, then the court needed to consider whether that rendered the case liable to be struck out as a result."

Later the court said:

"On the authority of Simbe v East Choiseul Area Council and ors [1999] SBCA 9, he [the judge of first instance] accepted that the High Court has jurisdiction to grant injunctions in customary land disputes but considered that, if he was to grant such relief, he would need authority of a previous court decision in which the appellant's right to the chieftainship was the sole issue and that the existence of current and viable proceedings in the Local Court was an essential precondition to the High Court's jurisdiction to grant injunctive relief; Veno and ors v Jino and ors [2004] CA 2/04. There were no such proceedings in the present case.

We accept there is weight in Mr Sullivan's argument that the customary courts have considered the appellant's right to be Chief of Reresare Tribe in the previous land disputes but we consider that there is a difference between establishing chieftainship sufficiently to prove ownership of land at the time of a dispute and establishing all matters necessary to prove an overall right to the chieftainship as the declarations and injunction he seeks require.

In order to establish res judicata, it must be clear that the issue is the same as in the earlier cases. Whilst it is clear that those cases have repeatedly confirmed his status at the time of the various land disputes, the purpose of this application to the High Court was to confirm that status "once and for all" (to adopt Mr Sullivans, perhaps, in view of the previous court history, rather optimistic phrase). Such confirmation must now require more than a finding of res judicata in the previous cases."

4. The present case is slightly different because it is said there have been previous cases which, apparently, have decided the Claimant's status as chief. However, what is clear from the chief's reasoning is they did not think there had been any such decision as between the Claimant and the Second Defendant. The chiefs had considered a long letter from lawyers acting for the "defendant" and had also heard detailed submissions from those lawyers and others before coming to any decision about that issue. Following those submissions and after some consideration the chiefs, according to the minutes of the chiefs hearing, ^[1]concluded:

"The second point that Kekepoqo land has gone through the courts........the plaintiff (Amos Kavaku) has never been a party to the case"

5. In those circumstances it is necessary to consider what the Court of Appeal said was required:

"With that challenge to face, confirmation of his right to chieftainship involves consideration of more than his right to land. It requires evidence of the proper customary requirements for confirmation of the right to be a Chief and its manifestation in the enthronement ceremony as well as an examination of the validity of its use in both the appellant's and the second respondent's enthronements or purported enthronement. Such consideration of custom is not a matter for the High Court.

The issues raised in the present case, as a result of the elaborately staged enthronement of the second respondent, present a novel new dimension to the earlier repeatedly unsuccessful attacks on the appellant's position.

As a result, the issues in the present case would not appear sufficiently similar to the earlier decisions to amount to res judicata. It also appears clear that a final decision on that question requires an answer to the question of whether the respondents' challenge mounted by the ceremony on 27 of May 2009 has any validity in Vella or Reresare custom. That is not a matter this Court is competent to decide."

The court considered the proper venue for deciding that kind of issue was the Local Court. They suggested that to counsel in the Lagobe case.

6. That is what should happen in this case. The evidence that I am being presented with is 90% about custom. Counsel should know by now that the High Court is not the venue for dealing with issues of custom, they are properly the sole preserve of the custom tribunals, the chiefs, the Local Courts and the Customary Land Appeal Courts. The Claimant suggests the Local Courts cannot hear matters which involve questions of law other than customary law, and that questions of res judicata and/or bias are beyond their jurisdiction. That perception is totally misconceived. What the Local Court should do in such circumstances was set out by the Court of Appeal:

"There was some discussion whether the local Court could or should decide whether the earlier matters gave rise to res judicata. We do not consider it appropriate in a case of this nature to require the local Court to import such a complex legal concept into its consideration of what is otherwise entirely a matter of custom. What is required is a clear statement of the appellant's and the second respondent's positions in Vella custom. The local court's decision and that of the CLAC, should it be appealed, may then provide clear guidance if the present application for declarations is pursued in the High Court. We feel that, should consideration of res judicata still be required, the High Court will be informed."

7. In this case the Local Court will need to carry out a similar exercise. It is not a question of the Local Court deciding whether res judicata applies, the justices will be deciding if the Batava Chiefs came to a decision which accorded with custom. They may certainly refer to earlier decisions if they feel they are relevant, they may consider whether the Batava chiefs were correct in finding the Second Defendant had not been involved in previous cases. That, I suggest, will be a question involving genealogies and custom; an area which is the preserve of the custom tribunals.

8. As regards those previous cases, there is a good deal of confusion surrounding them. For example, what is the Senqa Peace Making Group? Is this a chief's tribunal? As for the Local Court case in 1994 (see Exhibits CK2 and CK3) this is clearly a dispute about land. The finding of the court (CK3) is interesting in that the court decided;

"So the court conclude that the claim of Mr Qoqonokana of Solomo land was turn down and court agreed that Mr Collin Kobaka stand. So the case was won by Collin Kobaka the spokesman of Kekepoqo tribe"

It does not appear to be a decision about who was chief. Then there is the chiefs hearing in 1995. There is no explanation why the Claimant waited 14 years for a decision. He clearly is unhappy about what the chiefs have to say 14 years later but made no attempt to refer the matter to the Local Court. Seven years prior to that he had gone to the chiefs in any event. The matter was heard by the Ririo chiefs in August 2002. There is a copy of a translated judgment but no details of the evidence. As between the "Plaintiff" Collin Kobaka and the "Defendant" Magellan Zare the translated judgment suggests the chiefs felt the former's inherited title of chief was better than the latter's claim. There is no evidence Magellan Zare referred the dispute to the Local Court. Finally we have the decision the subject matter of the case. The chiefs decided they had the right to hear the case for the reasons they gave. They also rejected arguments the parties had been involved in previous cases about who was the rightful chief of Kekepoqo. In his claim in this court the Claimant refers to matters of custom (Vaikodoko) but makes only a passing reference to the Senqa Peace Making Group and a declaration from Mr Qoqonokana that he represented the Second Defendants relatives.

9. This is undoubtedly a matter which should be dealt with the Local Court. That can be done in one of two ways. If the Claimant does not find the decision wholly acceptable he should sign an unaccepted settlement form and commence his case in the Local Court. This case can then be adjourned pending a decision of the Local Court. Alternatively this court, as is set out by the Court of Appeal, can refer questions to the Local Court. If the Claimant commences a case in the Local Court he will have more flexibility as to what areas of custom he wants that court to adjudicate on. If this court refers questions to the Local Court they will only be required to answer those questions. It is for the Claimant to decide which route he wants to take. If he adopts the question route then then questions to be sent to the Local Court should be agreed and drafted by the parties. If no agreement is possible or if this court feels the questions go beyond what is required to be answered by the Local Court, then they will be set out by this court.

10. The parties should consider this question further. They should then write to the Registrar of the High Court to fix a hearing date for a mention or further directions. The application to strike out is adjourned as is the application for summary judgment. The question of costs is reserved. The way they eventually fall to be dealt with will depend on the answers given or the decision made by the Local Court.

Chetwynd J

^[1] Exhibit CK12 to the sworn statement of Collin Kobaka filed 23^rd January 2012