Lilo v Ghomo [1981] SBHC 8; [1980-1981] SILR 229 (23 October 1981)

[1980-1981] SILR 229

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 14 of 1981

LILO AND ANOTHER

-v-

GHOMO

High Court of Solomon Islands
(Daly C J)
Customary Land Appeal Case No. 14 of 1981

23rd October 1981

Customary land - previous court giving "exclusive right of occupation"- rights to timber approach to use of received law expressions - issue estoppel - how issues are to be ascertained.

Facts:

The Respondent was in occupation of land following a judgment of the High Court in 1973. This case was concerned with a claim that the Appellants had wrongly cleared part of the land without consent of the Respondent. The judgment had given the Respondent exclusive right to such occupation but had also held that the customary ownership of the land vested in a line represented by the Appellants. A dispute arose as to the rights to sell the timber standing on the land. The Local Court and Customary Land Appeal Court held that the timber could only be taken with the consent of the Respondent as to do otherwise would breach his exclusive right of possession. The Appellant appealed.

Held:

1. Caution must be exercised in the application of received legal terms to customary land cases.

2. Res judicata did not apply as the issue in the two proceedings was not the same but issue estoppel did apply (Lilo v. Panda and Lilo v. Ghotokera CLAC No. 10 and No. 11 of 1980 applied).

3. To ascertain the issues finally decided in the 1973 proceedings all the record of those proceedings should be examined (Randolph v. Tuck (1961) 1 All ER 814 followed).

4. A finding in the 1973 proceedings that the Respondent had "nothing to sell" was obiter dictum and of persuasive authority only.

5. It was therefore open to the courts below to reach the decision which they reached applying the earlier decision and customary rules. Appeal dismissed.

For Appellant: P. Presser
Respondent: in person

Daly CJ: This is an appeal against a decision of the Western Customary Land Appeal Court ("the CLAC") in a case heard in February, 1981. The CLAC was in turn hearing an appeal from a decision of the Gizo/Kolombangara Local Court given on 17th October, 1979.

The Plaintiff in the Local Court was Gideon Ghomo, the present Respondent, and the Defendants were George Lilo and David Bulehite, the present Appellants. The Appellants represent the Viuru line. Issue was joined on the Respondent’s claim that he was the owner "of the property (Forest) on Kiwai land referred to as 1½ strip." This "1½ strip" was reference to an area of land approximately 1½ square miles ("the 1½ mile land") in extent on the Western Coast of Kolombangara. There is no dispute as to the exact extent of the 1½ mile land and for present purposes I do not need to define it further. Early in the case before the Local Court the effect of a decision by Bodilly Chief Justice in Native Land Appeal Case No.3 of 1973 was raised and in its careful and full judgment the Local Court referred to that judgment. Having done so the Local Court reached the following conclusion:

"The use of the trees (on the land) would now appear to be vested in Gideon Ghomo and his line, so that Viuru cannot themselves extend their cultivation or authorize Levers or anybody to cut trees on the land. Taking trees without the consent and permission of Gideon Ghomo and his line therefore means an encroachment and infringement of his exclusive and irrevocable right of occupation. Even if Viuru line has fundamental rights in this land these cannot override Gideon Ghomo’s exclusive and irrevocable right of occupation."

In its formal decision, the court found that - "the natural forest" on the 1½ mile land "is within Gideon Ghomo’s exclusive and irrevocable right of ownership."

The appellants appealed against this decision. Again in the CLAC the decision of Bodilly Chief Justice was referred to at length and quoted in the judgment. The decision of the CLAC was to dismiss the appeal and uphold the decision of the Local Court.

The grounds of appeal to this court are refreshingly brief and to the point; no doubt because they have been professionally drafted. The case for the appellants was presented by Mr Presser of Counsel in a forthright and thorough manner. I am grateful for his assistance. Each ground of appeal refers to the decision of Bodilly Chief Justice and it is therefore obvious that I must consider that decision in detail before I can do justice to the case for the appellants.

Native Land Appeal Case No.3 of 1973 (Dedi Lakevu v. Gideon Ghomo) was an appeal from a decision of the Roviana Native Court dated 5th May 1972 (in those days there was no Customary Land Appeal Court). The Roviana Native Court was concerned with a claim by Gideon Ghomo against Dedi Lakevu and Charles Bulehite. The claim was that the three defendants had cleared part of the 1½ mile land and planted coconuts on it without permission from the Ghomo family. The defendants claimed rights as part of the Viuru tribe. The Native Court had decided that the owner of the 1½ mile land was Ghomo and his son Gideon and that the defendants should stop working on the land.

In the High Court Bodilly Chief Justice referred to an earlier decision (Native Land Appeal No. 19 of 1969) in which it had been held that the Viuru tribe had absolute right and ownership of certain parts of Kolombangara. The 1½ mile land was in fact outside the land with which that case was concerned but the learned Chief Justice by analogy extended to the 1½ mile land the same conclusion reached in that case, that is, that the area in dispute was subject of the customary control of the Viuru line. The effect of the decision in Native Land Appeal No. 19 of 1969 was considered by this court in the cases of Lilo v. Panda and Lilo v. Ghotokera (CLAC No. 10 and No. 11 of 1980) but it is not necessary to further refer to those cases as in the present litigation the customary ownership of the Viuru tribe of the 1½ mile land is not disputed. What is disputed is the rights over the natural forest on the land between the Viuru line and the Respondent.

To return to the 1973 case, Bodilly Chief Justice had before him a limited issue and that was, was the Native Court correct in finding that Ghomo could prevent cultivation of the 1½ mile land by the defendants representing Viuru tribe without his (Ghomo’ s) consent? Counsel puts it in the positive form of "did Dedi Lakevu and the other Defendants have the right to extend cultivation into the land occupied by Ghomo?" But there is no distinction of substance between the two formulations. Answering my question the Native Court said firmly "yes, Ghomo could prevent such cultivation" and so ordered.

On this limited aspect of the case the learned Chief Justice in his judgment held:

"It is no longer open to the Viuru people to encroach without the permission of Gideon Ghomo upon the one and a half miles, for that would amount to a taking away of the land which he is rightfully occupying."

The learned Chief Justice went on to say:

"But that must not be confused as being the equivalent of ownership in custom. Gideon Ghomo and his family have a right of occupation only. "They have nothing that they can sell or otherwise transfer to anyone else for the customary title to ownership rests in the Viuru people."("Rests" is subsequently changed to "vests" in the last paragraph of the judgment)."

In a separate Decree the learned Chief Justice decreed that the 1½ mile land "belongs in native customary land tenure to the members of the Viuru line" and "that the above customary ownership be subject to an exclusive right of occupation of the whole of the (1½ mile land) vested in (Gideon Ghomo) and members of his line."

It is what is said to be a difference between the terms of the judgment and decree that has caused a measure of difficulty in this case. The appellants rely upon the terms of the judgment and in particular upon the words "They have nothing that they can sell or otherwise transfer to anyone else for the customary title to ownership (vests) in the Viuru people." The Respondent on the other hand relies upon the words in the Decree "subject to an exclusive right of occupation of the whole of the (1½mile land) vested in (Gideon Ghomo) and members of his line." He also relies upon similar words in the judgment.

The Customary Land Appeal Court dealt with this conflict in its judgment in the following passages on page 2:

".......the High Court in its judgment in 3/73 said something it did not repeat in its decree. The decree is the important writing, and if there is a difference between what is written in the judgment and what is in the decree, the decree is the final word. When the Chief Justice said "They have nothing that they can sell" he was clearly referring to trees and coconuts and real things. In the decree he gave "irrevocable and exclusive rights of use and occupation" to Ghomo and his line. Ghomo and his line have those rights and can deal with them in any way custom allows. The 1973 case was not dealing with rights of sale, it was dealing with a question of encroachment by a member of Viuru line. What is said about selling, was only casual remark in passing (obiter dicta) not part of the decision. That is why we can make the decision in this way today."

And later: -

"So long as (the Ghomo) family and its line continue those rights cannot be taken away and none else is entitled to share them, that is what "irrevocable" and "exclusive" mean. The soil and trees belong to Viuru. Viuru can sell them, but whoever buys them has to come to Ghomo for permission to take them. Ghomo cannot sell them, but whoever buys them from the owners, the Viuru people, cannot take them because to do so, to come onto the land, breaks Ghomo’s irrevocable and exclusive right of use and occupation. Ghomo can refuse permission, or can grant permission. We express no opinion on whether he can sell permission, that is not the question before us. If we had to express an opinion; we would say there is nothing wrong in custom, from the evidence we have heard and from our knowledge of custom, to prevent him selling permission to Levers."

The grounds of appeal filed in this court take issue with a number of aspects of these passages.

Before I turn to these grounds I must say something generally about the difficulties which have arisen. They arise, in my view, from what is always a problem in dealing with Customary Land Cases in the modern Solomon Islands. That problem is how can one express customary concepts in the English language? The temptation which we all face, and to which we sometimes give in, is to express these concepts in a similar manner to the nearest equivalent concept in the law received by Solomon Islands from elsewhere, - that is the rules of common law and equity. The result is sometimes perfectly satisfactory in that the received legal concept and the Solomon Islands custom concept interact to give the expressions a new meaning which is apt to the Solomon Islands context.

It is thus with the use of the word "trustees" which has arisen in this case. This word is used in Solomon Islands in the customary land context in a different way to its use in relation to the principles of equity elsewhere. However other concepts of received law have not developed a customary law meaning and the use of expressions which denote those concepts can produce difficulties of some complexity. This is particularly so when the custom concepts which they are said to represent are themselves undergoing modification to fit them to the requirements of a changing Solomon Islands which is now concerned not only with the use of land for subsistence farming but with the sale of timber on land and enclosure of land for cattle and so on.

For this reason it is, to my mind, a great development of the system of dealing with customary land cases that we now have a Customary Land Appeal Court. That court, through the experience of the majority of its members in custom concepts and the legal experience of its magistrate member, has the ability to participate in the welding of customary concepts and the English language in a way which will not overlay the custom with inadequately modified expressions which in time could result in the custom giving way to inappropriate and possibly undesirable concepts of received land law.

I have taken some time to make these preliminary remarks because it seems to me that in this case the real difficulty has arisen from too strict an approach to expressions used by one of my learned predecessors. It must be borne in mind that no Customary Land Appeal Court existed in those days and so the learned Chief Justice was faced with the situation of having to hear appeals direct from the Local Court (or Native Court as it then was) without the interposition of an appeal court with experienced Solomon Islanders sitting upon it. Inevitably he expressed himself rather more firmly in received legal terms that would, say, a Customary Land Appeal Court. Caution must therefore be exercised in approaching these terms and certainly one should not regard them as merely reflecting the English land law concepts for which they are elsewhere used as a label.

I turn now to the grounds of appeal. The criticism of the passages of the judgment of the Customary Land Appeal Court to which I have referred above relate, first, to the CLAC’s decision that "the decree is the final word" (Grounds 1 and 2). This criticism hoverer must be of little moment if the CLAC was right in holding that the words concerning rights to sell were obiter dicta (or words by the way); a conclusion much is attacked in Ground 3.

Appeal ground 4 raises the question of estoppel. This I consider to be the more appropriate concept from which to start a consideration of this aspect of the case. There are two kinds of estoppel. As this court said in the cases of Lilo v. Panda and Lilo v. Ghotokera (ab. cit) at page 7:-

"The principle of estoppel per rem judicata is that in certain circumstances a new court case is stopped altogether on the basis that an earlier judicial decision has finally determined the whole legal rights and obligations between the parties; the principle of issue estoppel is that an earlier judicial decision had determined finally an issue between the parties and those’ parties are stopped from asserting that a different determination of that issue should be reached in subsequent proceedings."

There is no dispute that the parties in the present proceedings and the proceedings in 1973 were the same; in so far as Dedi Lakevu represented the Viuru line and claimed as such; as do the present appellants. Nor is there any dispute that the land subject of the proceedings is the same. However counsel has correctly observed that the nature of the issue before the court is not exactly the same; in 1973 the Respondent’s line successfully obtained an order preventing the Viuru line from encroaching on the 112 mile land by making gardens whereas the present case concerns a claim that the Respondent is the owner of the forest on the.112 mile land. The two matters, in my judgment, do not involve the same issue so that estoppel "per rem judicata" does not arise and it was open to the courts below to consider this particular claim.

However issue estoppel is clearly relevant in this case as a number of issues were finally decided between the parties in the 1973 proceedings. What is in dispute is the nature of those issues. In order to ascertain the true nature of the issues the record of the 1973 proceedings as a whole must be examined including the notes of evidence (see per Lawton J. in Randolph v. Tuck (1961) 1 All ER 814 at page 817). It therefore follows that I must look at both the decree and the judgment as well. Perhaps I should add that it does not seem to me a question of which of the two, the decree or the judgment, prevails but rather of reading them both together to ascertain the true issues decided and the nature of the decisions.

When one turns to the judgment and decree in the 1973 case one finds the following decisions on issues of fact or fact and law which, it is not disputed, were before the court and decided by it:-

1. That the Viuru line by virtue of original settlement have customary control (later referred to as customary ownership) of the 1½ mile land.

2. That Ghomo and his line have no rights of customary ownership by way of descent.

3. That Ghomo had occupied the 1½ mile land by reason of secondary rights derived from a female ancestor.

4. That in (Solomon Islands) custom long occupation initially acquired by secondary interest will never blossom into ownership but remains a right of occupation only.

5. That Ghomo and his line had acquired by virtue of 3 above a right to occupy the 1½ mile land which cannot be taken away or infringed.

6. That the Viuru line could no longer encroach upon the 1½ mile land without the permission of Ghomo for that would amount to taking away the land which he is rightfully occupying.

(I should perhaps add in parenthesis that some of these conclusions are widely drafted to establish apparently general principles of customary law through-out the Solomon Islands; it may be for future consideration whether this can be said to be the proper effect of a decision relating to land in Kolombangara)

To return to the present appeal, there is the following matter also raised in the 1973 judgment and it is in relation to this matter that the dispute arises. The matter is ex pressed in the judgment thus: -

7. That the right of occupation must not be confused as being the equivalent of ownership in custom. "Gideon Ghomo and his family have a right of occupation only. They have nothing that they can sell or otherwise transfer to anyone else for the customary title to ownership rests in the Viuru people."

So the question for determination is, was this latter matter an issue before the court in the 1973 proceedings which was finally determined as between the parties? I look first at the record of the Native Court proceedings. I have already referred to the nature of the claim made. As in that court the Respondent succeeded in establishing his ownership then there is no reference to the extent of his rights of sale and no argument upon it. Again, the argument in the High Court turned on the respective claims of ownership and, although it was accepted that the Respondent had properties in the 1½ mile land, there was no discussion of the rights of the Respondent were he to be found to have a right of possession, rather than a right of ownership. Thus it is clear that the Respondent’s rights to sell or not to sell were not raised by anyone except the learned Chief Justice himself in his judgment.

It is also clear in my judgment that a decision as to what rights the Respondent had to sell or not to sell was in no way necessary for the decision as to whether the Respondent could prevent Dedi Lakevu and others from encroaching on the 1½ mile land and to that extent the words used on this subject are, indeed, "words by the way." Thus I conclude that -

(a) the Respondent is not estopped from raising the issue as to his rights to the forest on the 1½ mile land; and

(b) the words used on the rights to sell or not to sell by Bodilly Chief Justice in the 1973 proceedings are obiter dicta and of persuasive authority only. They are binding neither on the parties nor on the CLAC and the Local Court.

Perhaps I should add that the words used in respect of matter 7, if literally interpreted do not reflect what anyone regards as the custom position. The Appellant agreed that trees planted by Ghomo could be owned by him (see p. 10 of Local Court record) and presumably sold by him and that Ghomo had the right to refuse to allow a tree to be taken for a canoe (see p. 1 of CLAC record). Thus, and, I am sure my learned predecessor would accept this, the wide words I have referred to in 7 above would need some qualification before they could be said to have established finally the position in custom as between the parties. For this reason I consider, with respect, that the CLAC may have been unwise to embark on an attempt to clarify these words when it said "he (the Chief Justice) was clearly referring to trees coconuts and real things."

Both the Local Court and the CLAC carefully based themselves on the binding issues decided in the earlier proceedings (that is issues 1 to 6) and went on from there to consider the effects of the decisions on those issues on the present dispute. Both courts very properly also utilized their knowledge of custom in reaching their respective decisions to which I have already referred. This approach was entirely correct and cannot, in my judgment, be faulted.

That is sufficient to dispose of this appeal as the courts applied the correct principles of law. Of the two remaining grounds of appeal Ground 4 claims that the Respondent was estopped "from asserting a greater right than one of mere occupation and use against the appellant." Whether or not the phraseology is apt in this context, it is clear that what the Respondent was seeking was not something more than his right of occupation but for a clarification of the incidents of that right. This he obtained. Ground 5 makes a similar point in claiming that the earlier decision restricted the right of the Respondent "to remain upon and cultivate the 1½ mile land according to customary sage." Again, leaving aside the aptness of the words used, it is the nature of the rights of the Respondent flowing from the earlier decision that the two courts below fully and properly considered. It would be presumptuous of me to indicate a view as to whether or not their conclusions were correct in custom; indeed, I do not have power to do so. I can only say that the decisions seem to me to be in accordance with sound common sense.

In those circumstances the appeal must be dismissed and the decision of the Customary Land Appeal Court confirmed.

The Respondent is entitled to his costs in all three courts to be taxed if not agreed.