IN THE SOLOMON ISLANDS COURT
OF APPEAL
Civil Case Appeal No.6 of 1997
JOHN SORI
v
TOATA GAGAME & OTHERS
Respondents
Appeal from a judgment e
High Court of SolomSolomon Islands
(Civil No. 243 of 1995)
Before: Sam Lungole-Awich J.
Date of Hearing: 22nd
July 1998
Date of Judgment: 21st
January 1999
A. Nori For the Appellant
C. Ashley For the Respondent
JUDGMENT OF THE COURT
KEY WORDS
Res Judicata - proper
application of principles to decisions of Tribunals dealing with customary
Issues in connection
with land.
John Sori (hereinareferred
to as the Appellant) and his uncle, Donga Usga Usuli, filed a writ of summons in
the High Court
against Toata Gagame, Molea Gagagame, Kaluage Gagagame, Kale
Gagagame, Ka’abe Molea, Solomon Loea Kia and John Loea Kia (hereinafter
referred to as the Respondents) and claim that they own the land known as
“Lesser Aenagogo” in North Malaita, Malaita
Province. They claim that the
respondents are trespassing on their land and they have removed and sold
gravel from the
said land. They claim damages for trespass and compensation
for removal and sale of gravel from the land.
lass="Mso="MsoNormal" style="margin-right: .2pt; margin-top: 1; margin-bottom: 1">
The appellant’s cause of action
is based on customary ownership of the land decided by the Malaita Customary
Land Appeal
Court (hereinafter referred to as the MCLAC) dated 6th
October 1982.
On the other hand, the first
five respondents claim that the leferred to by the appellantllant in his
statement of claim
as “Lesser Aenagogo” is in fact the same piece of
land consisting of two plots of land known by the names
“Anakwalekwale” and “Tafuita.” They claim that their customary ownership
of
this land was decided by the High Court in Native Land Appeal Case No. 4 of
1972 (hereinafter referred to as the 1972
(HC) decision).
The sixth and the seventh
respondente their customary claim on m on their own right. The parties filed
affidavits and
called evidence before the High Court setting out their
respective claims to the land under custom.
The High Councluded that
the land claimed by the appellant is thes the same land consisting of two plots
of land known
as “Anakwalekwale” and “Tafuita.” It further concluded that
the ownership of this land was determined by the 1972 (HC) decision.
The
Court was unable to accept any of the maps that were presented before it on
the boundaries of the land but accepted
that the boundaries of the land are
contained in the description of the land in the 1972 (HC) decision as
follows:
“The land in this dispute
consists of two adjoining plots called respectively Anokwalekwale and
Tafuita. They lie on the
main road running from Malu’u to the head road and
abut on to a small area of swamp fed by a stream called Kafoa Kobe.
The area of the land is not extensive and forms part of a much large area
called generally Guounsoro.”
Consequently, the Court ruled
that the appt has no beneficial interesterest in the land and dismissed the
claim.
Turt further held that if
the first five respondents have established homes and gardenardens beyond the
boundaries of
“Anokwalekwale” and “Tafuita”, they must vacate and surrender
those homes and gardens to the appellant. The implication of
this ruling is
that the land outside “Anokwalekwale” and “Tafuita” belongs to the
appellant.
The Court concluded that while
the description of the boundaries of the land are clear there is no map or
any marks on
the said land to indicate the true boundaries of
“Anokwalekwale” and “Tafuita”. In the circumstances the Court directed that
the issue of the proper boundaries should be referred to the Local Court for
determination based on the description given
by the 1972 (HC) decision.
The appellas appealed
against this decision on the following grng grounds:
“3. (a) the findings by the
learned trial judge thae that the decision of the High Court in Native Land
Appeal Case No.
4 of 1972 was the final decision affecting the land in
dispute amounted to a misapplication of the doctrine of res judicata
and
lacked any evidence since the Appellant was not a party to that case.
p class=lass="MsoNormal" style="margin-left: 72.0pt; margin-right: .2pt; margin-top: 1; margin-bottom: 1">
(b) the learned trial judge
ased his judgement on irrelirrelevant facts.
4. The Appellant seeks the
following judgement in lieu of that apat appealed from.
(a) that the appellant is
the rightwner of that area of land kand known as Lesser Aenagono (“the
Land”).
(b) that the First to the
Fifth Defendants (‘Respondents’) pay damages for trespass;
(c) the Respondents
provide an account of all payments rnts received for gravel removed and sold from
the Land; and
(d) that the Respondents evicted from the Land.Land.”
The main ground of appeal
rs to the effect given by the trial judge to the 1972 (HC) dHC) decision.
Counsel for the appellant
submits that the trial judge fell into error
because the appellant was not a party to the proceedings in 1972 and
therefore
he is not bound by that decision.
On the other hand, counsel for
the respondents submitt the trial judge was correcorrect and that the
ownership of the
land was decided by the 1972 (HC) decision.
Before us, the parties did not
fully argue the proper principles of res judicata which are
applicable. The principles are well established in common law and may be
briefly stated; a right or cause of
action claimed or put in suit which has
in the former proceeding passed into judgement and all issues of law and
fact
decided in the former cannot afterwards be raised again between the
same parties or their privies in a subsequent action (see
Blair v Curren
& Others [1939] 62 CLR 646).
In prle, we agree with
counsel for the appellant that the trial judge erred in applying thng the
principles of res judicata in respect of the 1972 (HC)
decision. The appellant was not a party nor was a member of his land owning
group to the dispute
in 1972.
However, we consider that the
iples of res judicata would be applicable to the proe proceedings
before the MCLAC in 1982. The parties contested the ownership of the land in
that tribunal and they would be bound by the rulings made in that tribunal.
Therefore, we should now examine those proceedings.
The parties came before MCLAC
onppeal from a decision of the Local Court. The dispute beforbefore the
Local Court was
brought by the appellant’s uncle, Donga Usuli. At the Local
Court hearing on 27th July 1981, the nature of the claim by Mr.
Usuli was recorded:
“There claim Gagame of
Funufou about Aenagono parcel of land, because he had told liars and stole
my place that is why
I claim him before the court today.”
It is clear from this record
and the nature of evidence cabefore the Local Court that that Donga Usuli
was claiming a
much bigger area of land and the two plots of land known as
“Anokwalekwale” and “Tafuita” are within the area claimed. In so
far as it
is relevant to the appeal before us, the Local Court on 31st July
1981 held:
“9. Court finds that Gagame
Tofasi did ndid not own whole of Aenagono customary
land by genealogy point of view but takes possession over Tafuita
Anokwalekwale, Isifai and Lae pieces of land within the parcel
of land given
to his devils by a reward.”
The Local Court finally
concluded:
“DECISION.
“Gagame Tofasi to be the
owner of this disputedputed area starting near Sulione market place goes up hill
to Isifai piece
of land to a group of Ngali trees namely Ngali Malifu and
ngalifonu trees goes across Isifai valley to Fatamouri hill down
hill to
Anonidautoa goes down hill along the Lae Valley
to the main road to Manahao point near the seashore. Donga Usuli to own
Aenagono customary land outside of this disputed area
with birth
right owners of Aenagono land of which might be still living today.”
It is not clear from the
evidence whether this iption relates to thto the two plots of land
known as “Anokwalekwale” and “Tafuita” or whether it includes “Isifai” and
“Lae” pieces
of land. We cannot find any evidence in the record
which clarifies this.
Donga Usuli appealed to MCLAC.
In its decision MCLAC clearly defined the land in dispute:
“The land in dispute between
the parties has been called Aenagono land by them and is delineated by a red
line on Plan
‘A’ produced by Gagame in this Appeal and agreed between the
parties at the outset of proceedings as defining the land in dispute.
One
clear fact that emerges from these proceedings is that it is somewhat
misleading to define the disputed land as Aenagono
land because the disputed
area only forms part of a greater area of land called Aenagono land, within
which greater area
are situated sacrifice places including the principal
place called Aenagono itself. For the purposes of clarifying these
proceedings the land in dispute between the parties will be called Lesser
Aenagono land and this clarification is necessary
because we are dealing
only with part of larger area called Aenagono land. Lesser Aenagano land is
thus the area delineated
by a red line on Plan ‘A’.”
The Plan ‘A’ referred to in
passage is annexure “JS2” in the affidavit of John Sori swoi sworn 21st
August 1995. This sketch shows that the land known as “Lesser Aenagono” is
separate and a bigger area of land compared
to “Anakwalekwale” and “Tafuita.”
The evidence shows that this sketch was produced by Gagame at the hearing
before MCLAC.
This has not been disputed by the respondents. The
significance of this is that the land marked on this sketch as
“Anokwalekwale”
and “Tafuita” are two small plots of land beside the land in
dispute. The land in dispute according to the sketch relate to
areas
designated as “Gardening Areas” where Gagame and sons have a coconut
plantation extending down past the main road
where Gagame and sons have
built homes. This disputed area is not the same as “Anokwlaekwale” and “Tafuita.”
MCLAC considered the 1972 (HC)
decision which held that “Anokwlaekwalekwale” and “Tafuita” belongs to Gagame.
Consistent
with this, the MCLAC found:
“The court finds in custom
that Gagame is e is entitled by reason of custom gift to the two parcels of land
known as ANOKWALEKWALE
and TAFUITA within Lesser Aenagono land. The court
also finds that the custom gift to GAGAME did not include any other land
within Lesser Aenagono land.”
It is allehat the
boundaries of these two pieces of land were sere subsequently marked out to be
part of the 1972 (HC)
decision but it was not produced. In view of this,
MCLAC concluded:
“This court cannot define or
or
take further the exact boundaries of ANOKWLAEKWALE and TAFUITA and in the
event of future
dispute the question of definition will need to be referred
to the local court.”
The nature of the dispute now
before us relate to the proper boundaries of the two plots of land
“Anokwalekwale” and “Tafuita” in relation to the land known as
“Lesser Aenagono.” We set out below the relevant determinations by MCLAC in
so far as they
are binding on the parties in accordance with the principles
of res judicata.
“Aenagono” land.
2. &nbssp;&nnbsp;&nsp;&nsp;&nbp; Located withe
greatereater “Aenagono” land, is “Lesser Aenagono” land. This land belongs
to
Donga Usuli and his line.
3. ; Ldcatehiwithe
the
“ “Lesser Aenagono” land, are two smaller plots of land known as
“Anokwalekwale” and
“Tafuita.” The Gagame famils theo plo
d.
4sp; nbsp; Tha Gagame f
has plas planted trees outside “Anokwalekwale” and “Tafuita” without the
permission of the
owners of “Lesser Aenagono” land. The members of Gagame
family are entitled to enjoy the fruits of these trees as long as they
are
productive. Nevertheless they do no have any right to the land and are not
entitled to plant any more new crops on
the land outside “Anokwalekwale” and
“Tafuita.”
It is clear the two plots
of land, “Anokwalekwale” and “Tafuita,” ta,” are different and not the same as
the disputed
land. The ownership of these plots of land by the Gagame family
is very clear. This land is not to be confused with the disputed
land. The
disputed land is the land which has been referred to by the appellant as the
“Lesser Aenagono” land. The MCLAC
found that this land is the “Lesser
Aenagono” land and it belongs to the appellant and his family. The Court
further
held that the Gagame family had planted trees on “Lesser Aenagono”
land without the consent of the owners and in respect of
the trees, granted
rights to enjoy the fruit as long as the trees are productive but they have
no right to plant any
more new trees. This effectively means that they can
enjoy the fruit of the trees but have no right to deal with the land in
any
way.
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It is clear to us that parties
are bound by the fgs of MCLAC as set out abov above and the appellant and
his family are
clearly owners of the disputed land known as “Lesser Aenagono”
land.
<
We find that the trial judge
fell into ern reaching the conclusion bion based on the 1972 (HC) decision
that the first
five respondents own the disputed land.
Any determination of the
boundaries of the land in question must proceed on the basis of the sketch
submitted by Gagame
and the general findings made by MCLAC. The sketch forms
the general indication of “Aenagono” land, “Lesser Aenagono” land
and the
two plots of land, “Anokwalekwale” and “Tafuita.” As to the exact
boundaries, the parties need to call evidence
and actually walk and mark the
boundaries in accordance with custom.
The trial judge directed that
the question of the boundaries should be referred to the Local Court for
determination.
At the hearing before us both counsel agreed that this
question should be referred to the Local Court as suggested by the trial
judge.
We cor that a referral to
the Local Court in this way can only result in the delay of the the final
determination of
the cause of action. In our view, this begs the question;
why does the High Court have to refer this issue to the Local Court?
We
suspect that the rationale for this referral is based on s. 231 (1) of the
Lands and Titles Act which provides that the Local Court has
exclusive jurisdiction to determine customary issues in connection with
land.
We do not wish to make any conclusive determination of this and other
related issues in view of the fact that we did not have
the benefit of full
argument from counsel. However, we wish to observe that the exclusive
jurisdiction of the Local Court
under this provision must be read subject to
the jurisdiction of the High Court under s.77(1) of the Constitution
(see Fugui & Another v. Solmac Construction Company Ltd & Others
[1982] SILR 100). The related question which arises is this; Does the High
Court have any discretion to refer a customary issue in connection
with
land? We consider that these are important questions which should be raised
and fully argued before the trial judge.
We direct that these issues should
be raised before the trial judge for his determination.
For the reasons we have given,
the appeal should be allowed, decisiocision of the trial judge quashed and the
matter remitted
back to the High Court. The boundaries of the different
pieces of land should be determined on the findings made by MCLAC with
further evidence to fix exact boundaries of “Anokwalekwale” and “Tafuita”
within the “Lesser Aenagono” land. Whether
or not this determination should
be undertaken by the High Court or referred to the Local Court is an issue
which should
be argued before the High Court.
We furtrder that the
respondents pay the appellants costs of and incidentals to the appeal aeal and
the costs of proceedings
in the Court below.
A(g) President
Sir Maurice Casey/p>
Justice of Appeal
Mr Justice Frank Kabui
Justice of Appeal
