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

Poloso v Poloso [2020] SBHC 117; HCSI-CC 224 of 2020 (16 November 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 224 of 2020

BETWEEN

RUSSEL POLOSO, DONALD PITABOE, TEDDY QOQONO, CARTER POLOSOBOE AND SHEPHARD LAPO
Claimant

AND:

SAMUEL POLOSO, JAMES VODA. PAUL PAGARA, MARTIN LUTHER KIMASARU AND ASA KEQA
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Choiseul Local Court)
Second Defendant

Date of Hearing: 9 November 2020
Date of Ruling: 16 November 2020

Mr. M. Pitakaka for the Applicants/First Defendant
Mr. L. Kwaiga for the Respondents/Claimant
Ms. F. Fakarii and Ms. P. Rofeta for the Second Defendant /Supports Applicant

RULING ON APPLICATION TO STRIKE

1. This is a category “A” claim. Claimants’ Kapi Tribe of Choiseul Province seeks declaratory reliefs for ownership of and consequential orders in respect of Sulolo and Lopa Customary Lands against first defendants Puibangara tribe of Choiseul Province.
2. Claimants alleged that their tribe is the owner in custom over Sulolo and Lopa Customary Lands. Ownership has been established in past Court decisions starting with the 1946 decision by Western Solomon Deputy Commissioner.
3. Then again in 1974, the High Court of the Western Pacific decided Sulolo Land in a Native Land Appeal Case Number 6 of 1970, in favour of claimants’ tribe, then represented by one named Levi Talavai. Claimants alleged that the 1946 and or 1974 Court cases concerning ownership of Sulolo and Lopa Customary Lands were between parties who are blood related to the claimants and the first defendants’ tribes herein. And so claimants and first defendants are bound by the two decisions. And further that the dispute over Sulolo and Lopa Customary Lands are res judicata as between the claimants and first defendants’ respective tribes herein.
4. Consequently, the dispute between these two tribes over these two lands (Sulolo and Lopa) is caught by res judicata. And not opened to second defendant to enquire into by operation of estoppel principle. A referral is currently pending before Local Court (second defendant), between claimants and first defendants. First defendants made the said referral from a 2011 Batava Council of Chief’s unaccepted settlement. The written statement accompanying the referral made reference to the 1946 case. Paragraph 1.1.3 of statement of case of the said written statement pleads that Qogono and Lapo, parties in the 1946 decision were both from Kapi tribe, not Puibangara. And so the 1946 decision does not bind Kapi and Puibangara tribes (claimants and first defendant tribes herein).
5. For this Court to grant the relief sought (declarations of ownership on the basis of res judicata), it must enquire into genealogy, blood relationships and identification of the two lands under dispute in the 2 past Court decisions (Sulolo and Lopa). I will have to enquire into whether or not the current claimants and first defendants are related to the parties in the 1946 and 1974 cases before the Western Solomon Deputy Commissioner and High Court of the Western Pacific respectively. Once I start doing that then I will start to enquire into and conclude on facts on genealogy, tribes and blood relationships between these two tribal groups. This is where I will run into problem because I do not have jurisdiction to enquire into and conclude on matters of fact in custom.
6. Matters of fact in custom like (i) genealogy, (ii) blood relationships and (iii) identification of the two lands in question are best left for Chiefs, Local Court and Customary Lands Appeal Court (CLAC) to deal with, not the High Court. It would have been proper if these 3 matters have been exhausted as far as the CLAC. And then claimants can come here to seek declaratory orders, after the relevant land courts have settled parties’ connections herein to the parties in the 1946 and 1974 decisions. The land courts will settle genealogy, tribal and blood relationships and identification of Sulolo and Lopa customary lands, as between the claimants and first defendants. Those matters once settled can give way to apply res judicata. Because in res judicata the relevant questions are – Are issues the same? Are parties the same? Are cause of action the same? Facts to answer these questions on res judicata are matters of custom. To be settled by land courts not High Court. High Court will settle res judicata after these matters of custom are settled by the relevant land courts.
7. Mr. Kwaiga submitted that this Court can make the declarations sought in regards to ownership of Sulolo and Lopa on the basis of the 1946 and 1974 cases. Those declarations are sought in reliefs 1 and 2. But for me to do that I say above I have to enquire into factual matters of custom (refer paragraphs 5 and 6). Yet I do not have jurisdiction. Cases like Majoria that Mr. Kwaiga relied on is different because factual matters of custom were settled in the land courts. And High Court and Court of Appeal were only making declarations on factual matters in custom already settled in the land courts.
8. For those reasons this Court lacked jurisdiction to hear this claim. Therefore, the claim will be struck out with cost. Cost set at $2,000.00. Parties should go back to Local Court and may be CLAC before coming here. And for that purpose materials do show that a referral is currently pending before the relevant Local Court.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE