Dika v Bana [2004] SBCA 18; CA-CAC 003 of 2003 (11 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Civil Appeal No 3 of 2003
Civil Appeal No 5 of 2002

PARTIES:

SELWYN DIKA
(Representing the Mamara Tribe of Isabel)
(first appellant/first respondent)

CASPER BANA
(Representing the Etingi Tribe of Isabel)
(second appellant/second respondent)

V

DAVID LENGA SOMANA
(Representing himself and his Etieti Clan)
(first respondent/first appellant)

ISABEL TIMBER COMPANY LIMITED
(second respondent/second appellant)

ATTORNEY-GENERAL
(Representing Commissioner of Forests)
(third respondent/third appellant)

CITATION: Dika & Anor v Somana & Ors

DIVISION: Court of Appeal

PROCEEDING: Civil Appeals

ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 11 November 2004
DELIVERED AT: Honiara
HEARING DATE: 5 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JJA

JUDGEMENT OF THE COURT

ORDERS:

1. Appeals dismissed

2. Costs in these appeals are awarded against the respondents in Civil Appeal No 3 of 2003 and the appellants in Civil Appeal No 5 of 2002

COUNSEL:

G Suri for the appellant in Appeal No 3 of 2003
J Apaniai for the respondent in Appeal No 3 of 2003

[1] THE COURT: There are two distinct decisions in this matter, both of which are the subject of an appeal. The parties to these appeals agree that they may conveniently be heard together, and the court so agrees. For the sake of clarity where both parties are appellants and respondents respectively in the remainder of this judgment the parties will be referred to as Dika (that being Selwyn Dika representing the Mamara Tribe of Isabel and Casper Bana representing the Etingi Tribe of Isabel) and Somana (that being David Lenga Somana representing himself and his Etieti Clan, Isabel Timber Company Ltd and the Attorney-General representing the Commissioner of Forests).
[2] In HC-CC 256 of 2001 the court was asked to determine the questions:

"1. Whether the Isabel Local Court decision made in respect of the 1994 Rakata Fish Ground case had declared both the sea and inland boundaries of the Rakata Fish Ground and Land?

2. If the answer to Question 1 is in the negative, whether the Isabel Local Court had the jurisdiction to revisit its own decision made in 1994, in respect of the Rakata Fish Ground case between the parties hereto, and to make clarification and declaration thereto as contained in the Land Case No. 8/99 Lavid Lenga v. Casper Bana and Lidi Bako?
   
3. If the answer to question 2 is in the affirmative, whether the recent decision of the Isabel Local Court in the Land Case No. 8/99 David Lenga v. Casper Bana and Lidi Bako delivered on 29th May 2001 has clarified and declared that the boundary dispute between the parties hereto in the 1994 Rakata Fish Ground dispute also extends to the inland boundaries.”
   

[3] Those questions were determined in a judgement dated 29 June 2002, perfected on 4 October 2002 wherein the following orders were made:

"1. The Isabel Local Court decision in the Rakata Baitfish case had clearly identified both the inland and sea boundaries of the Mamara Clan as stretching from ‘... west bank of Rakata river to east side of Fufuana river, across, to Gufuana which share boundary with Etini’.

2. Consequently, it is declared that Eti Eti Clan is bound by that decision.
   
3. The Isabel Local Court Case No.8/99 between David Lenga Somana v. Casper Bana and Lidi Bako was ultra vires and therefore void.
   
4. In sofar as the timber righst [sic] application of Eastern Development Enterprises Limited over LR 675 is concerned, and that in sofar as the appeal to the ICLAC had been withdrawn by the Appelland (David L. Somana) and a Certificate of No Appeal issued by the Clerk to the ICLAC dated 12th Febrary [sic] 2002, the clan duly identified as being lawfully entitled to grant timber rights over LR 675 is the Mamara Clan.
   
5. The Plaintiff shall have his costs of and incidental to this application.”
   

[4] That is the first decision appealed. It is appealed by Somana in a document dated 3 September 2002. That document erroneously, although perhaps understandably, sought leave to appeal out of time.
[5] In this court counsel for Somana sought and was granted leave to amend that application into a notice of appeal. The grounds of appeal remain as stated in that notice.
[6] In HC CC 208 of 2002 instituted in August 2002 an action for trespass was brought by Dika. That claim was amended on 10 September 2002 as appears at page 95 of book 1 of the appeal record. It was brought against Somana and relied in part on the decision in HC CC 256 of 2001.
[7] In the course of HC CC 208 of 2002 an ex parte order was made and subsequently confirmed inter partes on 10 September 2002 restraining Somana.
[8] By notice of motion dated 27 September 2002 Somana sought the following orders:

"1. Paragraph 1 of the orders of the Court dated 19th June 2002 be varied.

2. In the alternative the said orders be stayed pending the determination of the First Defendant’s appeal pending before the Court of Appeal.
   
3. In the alternative the Eastern Development Enterprises Limited, its contractors, servants or agents be restrained from entering the disputed land for the purpose of carrying out logging operations therein until the determination of the First Defendant’s appeal currently before the Court of Appeal.”
   

[9] On 18 November 2002 the inter partes restraining order was varied by extending the area of land included in the order.
[10] At a hearing on 21 November 2002 Palmer J (as he then was) considered the notice of motion dated 27 September 2002. Judgment was delivered on 6 January 2003. That decision is the subject of the second appeal, brought by Dika.
[11] In the judgment at page 9 the judge notes that the application for variation of the orders made in HC CC 256 of 2001 was withdrawn in the course of the hearing by Somana, it having been conceded that the orders were final orders of the court. The judge then continues to deal with the application for stay and restraining orders. Suffice it to say that Somana did not succeed in his application.
[12] Turning to the appeal by Dika against this decision, this court has difficulty in accepting that the learned judge did indeed interfere with his previous orders in HC CC 256/01.
[13] It is correct to suggest that during the course of the judgment, the learned judge did cast doubt on his previous findings and therefore it is useful that this court has the benefit of that original matter before it on appeal.
[14] The learned judge was equally alert to the danger of variation to final orders made in another case. In particular this is referred to on page 9 in the last paragraph where it is noted that the application to so vary those orders was withdrawn.
[15] In the event even the remaining application for stay was refused on jurisdictional grounds, having been described by the learned judge as “misconceived” (see page 10 of his judgment, first paragraph). No doubt his comments contained in the following paragraph prompted the subsequent application heard on 2 May 2003.
[16] Because the substance of the second appeal raised the issues of the first appeal, albeit on different procedural grounds, this court has before it all of the matters remaining in dispute between the parties. No additional submissions were filed by either party.
[17] In his judgment of 19 June 2002 the learned judge found in favour of Dika from the Mamara Clan. The issues which in his appeal Somana says were not dealt with correctly were put in the HC CC 208 of 2002, which caused the learned judge to doubt his own earlier findings.
[18] These doubts are summarised in the judgment dated 6 January 2003. They can shortly be set out as follows:-

1. What was meant by the phrase “Eti Eti clan have the right to use this part of the land”.
2. Whether the inland area boundaries of the Mamara clan had been identified at the same time as the baitfishing boundaries.
3. Whether Somana had taken the appropriate steps following the decision in Selwyn Dika v David Lenga Somana & Attorney General CC 276 of 1999.

[19] These “serious issues” that so concerned the learned judge in 208/2002 form the substance of the first appeal, and fall to be determined by this court.
[20] The “Will”
In 1974, Margaret Madi was approached by members of the Eti Eti clan and as a result of that approach a document sometimes referred to as a “will” came into existence. Accounts of the circumstances surrounding the production of this document vary. It remains, though, the basis on which Somana claims ownership of Mamara land. It is interesting and pertinent to note that Somana therefore by implication accedes to the suggestion that the area did at some stage belong to the Mamara tribe since to deny the same would have the effect of defeating his own claim.
[21] Before the Isabel Local Court (hereinafter referred to as “the ILC”) in case 4 of 1994 Dika maintained that the resultant document was not voluntarily effected and therefore invalid. There is evidence to the effect that Margaret Madi refused to accept food brought by the Eti Eti tribe for the purpose of a customary feast. There is also reference by Dika to permitting the Eti Eti to remain in occupation of the land provided they did not question ownership of the land, and that once the ownership question arose, they would question the Eti Eti presence on the land.
[22] Helen Kalahi was the adopted daughter of Margaret Madi. She gave evidence before the local court with regard to her mother’s words to her about the passing of the land on her death. Within that evidence there is reference to the “will” given to Somana – suggesting that she (Margaret) could not give her “will” to Somana.
[23] Having heard the evidence, it is apparent from the judgment (beginning at page 8 of the appeal book) that the ILC made a determination on the validity in custom of the document referred to as a “will”.
[24] It seems clear to this court therefore that the fears expressed by the judge concerning use by Eti Eti clan have been addressed.
[25] The Inland Boundaries
The second matter which the learned judge had concerns over relates to whether in deciding the boundaries of the baitfish area, the inland boundaries had also been delineated. For Dika it is contended that this was a necessary prerequisite to a finding of baitfish rights. For Somana, this is contended to be a false premise.
[26] At one stage in the history of the matter, the ILC had occasion to consider the very matter. In a decision dated 28 May 2001 the ILC concluded that the 1994 decision did indeed refer to “the inland”.
[27] That the ILC in 2001 was correct in considering the inland area to be included in the earlier decision is further supported by the evidence given to that earlier court concerning the will. That evidence concerned the Eti Eti tribe coming to stay in 1978 and being permitted to remain, all of which supports the notion that the inland area boundaries were being considered and decided in that matter.
[28] Order 4 contained in the same decision would be rendered meaningless should it be determined that the decision did not include the inland area, especially when account is taken of the possibility of descendants of Margaret Madi returning to the Rakata land.
[29] As Mr Nori for Somana pointed out to this court, the appropriate venue for determination of customary matters is neither the High Court nor the Court of Appeal. In a situation such as this, it is relevant that the ILC itself is satisfied that a decision has been made on the “inland”.
[30] The third concern expressed by the learned judge was dealt with once the court was made aware that although the ILC did not reconsider the issue of land boundaries, the Somana had indeed taken the matter to the appropriate body for consideration.
[31] In the event this court is now obliged to apply the principles of res judicata and issue estoppel to the above circumstances.
[32] As in his judgment the learned judge in 208 of 2002 did not vary any earlier orders, but merely expressed his concerns and views, it is this court’s view that the issue of functus officio does not arise.
[33] As between Dika and Somana the issue of res judicata applies in relation to the decision of ILC in 1994 relating to the Mamara Land. The authorities raised by both appellants support the contention and need not here be considered in further detail. Suffice it to say that the court finds that the principles set out in Talasasa v Paia & Anor 1980 SILR 93 have been satisfied.
[34] In the event the court orders as follows:
The appeal by Somana in relation to HC CC 256 of 2001 is dismissed, and the original decision confirmed.
The appeal by Dika in so far as it relates to the suggestion that Palmer J (as he then was) overturned a previous final order is dismissed.
The necessary implication of these two decisions taken together with the reasons outlined above is that this court confirms that:
1. ... the Isabel Local Court decision of 28 May 2001 in Land Case 8/99 Casper Bana and Others v. David Lenga had referred to inland boundaries and had made a binding decision on the Rakata inland.
2. ... the issue of the First Respondent’s rights to use part of Rakata land as alluded to by Isabel Customary Land Appeal Court in CLAC Case No. 4 of 1989 had been finally determined between the First Plaintiff and the First Respondent by the Local Court in Case No. 4/94 Joses Lote, Selwyn Dika and Casper Bana v. David Somana.
Costs in these appeals should be awarded against the respondents in Civil Appeal No 3 of 2003 and the appellants in Civil Appeal No 5 of 2002.