Talasasa v Bea [2016] SBCA 16; SICOA-CAC 03 of 2016 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (FAUKONA PJ)
COURT FILE NUMBER:	CIVIL APPEAL CASE NO. 03 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 277 OF 2012)
DATE OF HEARING:	10 OCTOBER 2016
DATE OF JUDGMENT:	14 OCTOBER 2016
THE COURT:	GOLDSBROUGH P LUNABEK JA YOUNG JA
PARTIES:	RONALD BEI TALASASA JR, TERRY SAGEHABU TALASASA, HENRY TALASASA & RONALD BEI TALASAS SNR (REPRESENTING THEMSELVES AND MEMBERS OF THEIR CLAN OR TRIBE) - V - MARY BEA, ZIE KERRY, HUKATA BEA & TETILEVE AND TUMI BEN
ADVOCATES: APPELLANT: RESPONDENT:	MR N. LAURERE MR. J. S. PITABELAMA
KEY WORDS:	LAND OWNERSHIP DECISIONS; RES JUDICATA;
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	ALLOWED
PAGES:	1- 6

JUDGMENT OF THE COURT

1. This appeal is against a decision of the High Court of 19 February 2016 wherein relief sought in a claim filed 24 August 2012 was refused after trial. The claim raises a question of trespass on customary land known as Kazukuru Left Hand Land and seeks declarations, a permanent order for restraint and a limited amount of damages.
2. Prior to the filing of this claim the same matter was the subject of an application in the Magistrates’ Court. This was brought about by the Respondents entering into land which the Appellants regard as their land and clearing it on or about 28 December 2011. Following a request for them to stop which was not complied with the matter was taken by the Appellants to the Magistrates’ Court where an ex parte order was sought and made. At an inter partes hearing on 19 July 2012 further orders were made.
3. The order made by the magistrate on 19 July 2012 essentially attempted to preserve the position in that it provided for the Appellants to live without disturbance on the land they occupied and for the Respondent to stop clearing and cultivation, for neither party to do anything that might provoke a breach of the peace and noting, in the final paragraph of the order, that “both parties are at liberty to seek further proceedings before the Chiefs to hear and determine the issue of ownership over the disputed land while these orders remain in force until the dispute is resolved and settled.”
4. It is this final order which is the subject of complaint in the civil claim lodged subsequently in the High Court. As can be seen from the above, this is a land dispute. The Appellants contend that they have a final and binding decision in their favour in respect of the land in question. The Respondents in their defence assert that the question of land ownership has not been finally and conclusively determined by a decision binding on them.
5. The claim seeks a declaration that the [Respondents] are bound by the decision of the Native Land Appeal Court No. 9 of 1971. Further sought is a declaration that the issue of customary land ownership over Kazukuru Left Hand customary land is res judicata as between the parties to this case and members of their line, a declaration that the order made in the Magistrates’ Court Western on 19 July 2012 in so far as it allows or orders the parties to return to the chiefs on the issue of customary land ownership was made ultra vires its jurisdiction and should be quashed. The claim then seeks a permanent injunction against the Respondent and damages for trespass limited to $50,000.
6. By 27 March 2014 a statement of agreed issues was filed by the parties. It is helpful to set out the agreed facts: -
   1. That in 1970 the Roviana Native Court heard and made its decision over Kazukuru (left hand) customary land ownership.
   2. The parties to that dispute were Jacob Zinihite (Plaintiff) and Edwin Biku (Defendant).
   3. The decision of that Court was appealed to the High Court of the Western Pacific by Jacob Zinihite in the Native Land Appeal Case No 9 of 1971.
   4. The Appeal Court allowed the appeal and set aside the decision of the Native Court. It made a decree dated 27 May 1971
   5. That was the final decision of that dispute as there was no appeal against that decision.
7. A number of issues where then identified in the same document as “agreed issues” in the sense that they were issues identified by the parties as requiring determination. Significantly one of the issues is whether the decision of the Native Land Appeal Court No 9/71 is binding on the parties to the present case and therefore the doctrine of res judicata applies.
8. In the course of his judgment the trial judge deals with the question of res judicata and finds that the principle does not apply. We propose to deal with that aspect of this appeal first as it appears to us to be a most significant point.
9. As between the parties there is no issue as to the general principles of res judicata. Said many times before, res judicata is a principle applicable where there is an existing decision on the same issue between the same parties which is binding. The matter was discussed more fully by Palmer CJ sitting as a single judge of this Court in Dika & Bana v Somana and Ors. Civil Appeal 3 of 2003 citing with approval Queensland Trustees Limited and Others v. Commissioner of Stamp Duties[1956] HCA 75; [96 C.L.R. 131] and Blair and Others v. Curran and Others 62 C.L.R. 464.A full Court of Appeal in Sori v Gagame [1999] SBCA1 had earlier approved Blair v Curren.
10. It is the application of those well-known principles to the circumstances of this case that is in issue here. The Respondents submit that the issue of ownership of this part of Kazukuru Left Hand Land was not the subject of the earlier decision, that the Respondents were not parties to that decision and that the question of their ownership of this part of Kazukuru Left Hand Land was not litigated in the earlier case because it was not a matter then in dispute.
11. It is conceded by the Respondents that the losing party in the Native Land Appeal Case No 9 of 1971 Edwin Biku was a blood relative of the present Respondents. Indeed, their claim of ownership is dependent upon them being part of that line tribe or group. The question, according to their submissions, is that their ownership of only this part of the whole land was not an issue litigated before that earlier tribunal.
12. Res judicata does not only cover issues litigated but also issues which should have been litigated by the parties when the matter was before the earlier tribunal. When the Native Land Appeal Court was considering ownership of the whole of Kazukuru Land and when the Respondent’s line or tribe where before that court claiming ownership of all of it, the decision to be arrived at naturally included all of the land within the boundary described.If ownership of just a “small portion” of it was the subject of some special or separate claim or ownership divorced from the substantive claim Edwin Biku was making, it should have been raised then as part of his case. Given that it was not, it is not open to the same parties to raise it now.
13. The question considered by the Native Land Appeal Court was that of ownership of the whole area known as Kazukuru Land. Edwin Biku claimed ownership on behalf of his tribe and lost. It is not now open to his descendant on behalf of the same line to claim the same land, even if it is only a small part of that land. For those reason we conclude that the matter is caught by the principle of res judicata. It may even by said that there exists even more justification for the Respondents then representative to have raised this ‘separate’ ownership question before the Native Land Appeal Court as it had come into existence many years before the hearing took place.
14. The finding of res judicata disposes of the declarations sought in orders 1 and 2 of the claim and in this appeal. As regards order 3 and the question of the jurisdiction of the Magistrates’ Court Western, we do not regard the statement made at paragraph 7 of his decision (set out at paragraph 3 of this decision) to be an order of any sort. It was but a statement of what he thought was open to the parties for the parties to follow. In the circumstances we do not find that there is any order to quash. It should be clear from our decision, however, that we do not regard this as an available option given our findings.
15. In disposing of this appeal we grant the declaration sought that the Respondents are bound by the decision of the Native Land Appeal Court No. 9 of 1971. Similarly we grant the order sought that the issue of customary land ownership is res judicata as between the parties to this case and members of their line. We make no order as regards the remarks complained of appearing at paragraph 7 of the decision Magistrate in the Magistrates’ Court Western.
16. We believe that a permanent injunction should issue and that damages should be assessed. To that end we remit the matter to the High Court where we would expect counsel to propose terms for the permanent injunction and present material to facilitate the proper assessment of damages. In the meantime we order preservation of the status quo.
17. Costs of and incidental to the appeal to be paid by the Respondents, such costs to be agreed or assessed by the Registrar.
    

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Goldsbrough P

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Lunabek JA

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Young JA