Lagobe v Maena [2011] SBCA 17; CA-CAC 14 of 2011 (25 November 2011)

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IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Justice Chetwynd)

COURT FILE NUMBER:	Civil Appeal Case No. CA. 14 of 2011 - Appeal from High Court Civil Case No. 168 of 2009)

DATE OF HEARING:	21 November 2011
DATE OF JUDGMENT:	25 November 2011

THE COURT:	Sir Robin Auld, President
	Justice Gordon Ward, JA
	Justice Francis Mwanesalua, JA

PARTIES:	LAGOBE - Appellant

	-V-

	KIDOE MAENA & ORS - Respondent

ADVOCATES:
Appellant:	J Sullivan QC with T Kama for the Appellant
Respondent:	D Marahare for Third Respondents

KEY WORDS:	Res judicata in custom cases, Determination of Chiefly Status

EX TEMPORE/RESERVED:	Reserved

ALLOWED/DISMISSED:	ALLOWED

PAGES:	7

[1] This is an appeal from a decision of Chetwynd J delivered on 27 June 2011 in which he ordered that a claim for declarations and an injunction in respect of the title of the Chief of Reresare Tribe on Vella la Vella should be dismissed and struck out with costs. The present appellant was the claimant in that case and the present respondents were the first, second and third defendants. The case had been listed for the claimant to show good cause why it should not be dismissed or struck out.

[2] The learned judge described the claim in the first paragraph of his judgment:

“The claimant has been held to be the Chief of Reresare Tribe in several cases involving the ownership or control of customary land on Vella la Vella. The first and third defendants arranged a meeting at Irigila Village in May 2009. At the meeting they appointed and installed the second defendant as Chief of Reresare Tribe in place of the claimant. [The claimant] has instituted proceedings and by an amended claim filed on 9 July 2009 asks for two declarations. He seeks a declaration that the installation of the second defendant as Chief of Reresare Tribe is void and one declaring him to be the lawful Chief of Reresare Tribe. The claim also asks for permanent injunctions against the defendants stopping them from representing or holding out the second defendant to be the Chief of Reresare Tribe and from holding meetings to appoint or install him as Chief.”

[3] There have been previous court challenges to the claimant's right to tribal land and the courts’ decisions have generally hinged on his status as Chief of Reresare Tribe. 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.

[4] The cases mentioned in the first sentence of the paragraph from the judgment set out above were decided by all levels of court from the Local Court in 1994^[1], the Customary Land Appeal Court in 1996^[2], the High Court in 2008^[3] and 2011^[4] and this Court in 2009^[5]. In every one, the courts found the claimant held Reresare Tribal land and (jointly with the matrilineal owner) Reresare customary land because he was the Chief of Reresare Tribe,

[5] The learned judge briefly identified the issues for the Court’s consideration:

"First, is this a matter which is caught by the provisions of section 254 of the Lands and Titles Act? If it is, can the claim nonetheless proceed? If it is not caught by section 254, is the claim an abuse of the process of the court and should be dealt with as falling under the provisions of Rule 9.75 [of the Civil Procedure Rules] or alternatively struck out under the inherent jurisdiction of the court?”

[6] In summary, the judge found that, whilst the claimant's status as Chief had been relevant in previous disputes about customary land, chiefly status is an entitlement personal to the claimant. The court expressed concern that a finding that his chiefly status affects, or arises in connection with, customary land might widen section 254 too much. However, in light, it would appear, of his later ruling that the court could not, in this case, order the declaratory and injunctive relief sought, he considered it was unnecessary to make any finding on the scope and effect of section 254.

[7] The appellant has filed detailed (and repetitive) grounds of appeal. They can be conveniently summarised:

(a) in not applying the doctrine of res judicata or alternatively of issue estoppel thereby holding that those doctrines have no application to the issue of who is or should be recognised as the Chief of Reresare Tribe (Ground 1).

(b) by failing to consider undisputed evidence which showed an identity of subject matter between the earlier cases and the present case and that the Customary Land Appeal Court decision is a final judgment in respect of the question of the chieftainship in custom (Grounds 2, 4 and 7).

(c) in holding that there is no prior decision in which the sole question in dispute was the appellant's right to be known as Chief and that such separate proceedings involving that as the sole question are necessary to invoke the protective power of the High Court (Ground 3) and in holding that such protective power can only be invoked following such separate proceedings before the Chiefs or the Local or Land Appeal courts (Grounds 4, 5 and 7).

(d) in failing to take account of the fact that the respondents adduced no evidence of customary law to support the entitlement of the second respondent to the chieftainship (Ground 8).

2. That the judgment is contrary to public policy in that it promotes endless litigation leading to inconsistent decisions (Ground 6).

3. That it is illogical to suggest that the doctrines of res judicata and issue estoppel apply to customary land disputes but not to other disputes in custom (Ground 7).

4. That the judge erred in holding that the appellant had no reasonable cause of action or that the proceedings were vexatious or frivolous or otherwise an abuse of the court process (Ground 9).

[8] As can be seen and as the learned judge correctly identified, they all relate to the two principal issues of whether res judicata and/or issue estoppel apply in this case and, if they do not, whether the High Court can still give declaratory or injunctive relief.

"A local court shall, subject to the provisions of this section, sections 12, 13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than –

(a) any matter or proceeding for the determination of which some other provision is expressly made by this Act; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land."

[10] Subsection (3) makes any decision of the local court under this section final and conclusive save for appeal to the Customary Land Appeal Court and from there to the High Court on a point of law or failure to comply with any procedural requirements.

[11] Mr Sullivan introduced his submissions to this Court with the statement that there has been a usurpation of the title of chief. He was referring to the ceremony held on 27 May 2009 at Irigila village which was claimed to be the enthronement of the second respondent as Chief of Reresare Tribe. The aim and purpose was effectively to remove and replace the appellant as Chief of that Tribe, a position he has held for more than twenty years.

[12] This action was brought in the High Court in order to challenge the second respondent’s claim to the chieftainship and, thereby, to confirm that of the appellant. Many of the cases over the past two decades have been challenges by the second respondent and/or his supporters to the appellant’s right to Reresare land. As already stated, in every case the court has confirmed his right based on its acceptance of his right to the chieftainship.

[13] The Local Court and the Customary Land Appeal Court have explained, occasionally in some detail, the basis upon which they confirm his position as Chief of Reresare Tribe in order to support his claim to the land. This was particularly so in the case of Lagobe v Lezuteni LC 1/91, 27 April 1994 in which the Local Court found that:

"According to Vella custom in appointing Chief of a tribal land, the whole tribe must come together to make the appointment. If they appoint one then a custom ceremony must be made to put that person as Chief."

[14] That decision was appealed to the CLAC which confirmed the Local Court decision and added further findings confirming that, in Vella la Vella custom, chiefly descent is matrilineal, that the present appellant comes from the woman's side and is, therefore, the land tribal chief of Reresare.

[15] The appellant asks this Court to rule that his status as Chief has been sufficiently proved in these previous customary land disputes to invoke the doctrine of res judicata. In his judgment, Chetwynd J accepted that, ‘a broad interpretation of section 254’ would allow this matter to be considered as arising in connection with customary land or as a matter which will affect customary land because his chiefly status was the determining factor in the previous customary land disputes. He continued:

"Whilst the claimant’s status as Chief has been relevant in disputes about the ownership of customary land and whilst it arises because of his connections to the land it is an entitlement which is personal to Mr Lagobe. To say it affects or arises in connection with customary land would, maybe, widen the ambit of section 254 too far."

The learned judge concluded that it was unnecessary to consider that aspect further.

[16] On the authority of Simbe v East Choiseul Area Council and ors [1999] SBCA 9, he 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.

[17] 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.

[18] 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.

[19] We say "now" because of the challenged enthronement ceremony staged by or for the second respondent. In order to establish whether the previous court’s acceptance of his chiefly status and the reasons they gave for that conclusion are sufficient, it must be necessary to consider the validity of his initial enthronement as against that staged by the second respondent. This poses the question of what precisely was the issue before the High Court. The High Court was being asked to make declarations confirming the status of the appellant as Chief of Reresare Tribe. In light of what the appellant suggests is a usurpation of his position, it must be necessary to know whether the challenged enthronement and/or the right of the usurper to be enthroned has any validity in Vella custom before the appellant's status can be confirmed.

[20] 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.

[21] 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.

[22] 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.

[23] The Court suggested to Mr Sullivan that this needed to be determined by the Local Court and, following a short adjournment during which counsel conferred, both counsel accepted that the High Court action should be reinstated and the case remitted to the High Court for reference of the customary issues to the local Court for determination.

[24] 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.

[25] The appeal is allowed. The order of Chetwynd J striking out the claim is quashed. The case is remitted to the High Court with a direction that the following questions be referred to the Local Court:

^[1] Lagobe v Lezutuni LC 1/91, 27-4-94
^[2] Lezutni v Lagobe LAC 2/94, 2-6-96
^[3] Lagobe and anor v Odikana and anor [2008] SBHC 88; Lagobe and anor v Premier of Western Province and ors [2008] 67
^[4] Kidoe v Tozaka and Lagobe [2011] SBHC 43
^[5] Odikana and anor v Lagobe and anor [2009] SBCA 14

Court of Appeal of Solomon Islands

Lagobe v Maena [2011] SBCA 17; CA-CAC 14 of 2011 (25 November 2011)