Beti v Allardyce Timber Company Ltd [1992] SBHC 31; HC CC 45 of 1992 (6 July 1992)

CC 45-92.HC/Pg 1

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 45 of 1992

BETI, BISILI AND GASIMATA (As Representatives of the Voramali Tribe)

v

ALLARDYCE LUMBER COMPANY LTD AND THE ATTORNEY GENERAL AND ALFRED BISILI, JOHN RONI, JUDAH SAKIRI, ESAU HIELE, SIMON SASAE, JONATHAN POZA, ZONGA HITE, EDWIN DAGA and SIMION PATO

Hearing: 5 June 1992
Judgment: 6 July 1992

J. Corrin for the Plaintiffs
J. Sullivan and D. Campbell- for the First Defendant
P. Afeau for the Second Defendant

MURIA ACJ: This is an application by the Plaintiffs for an order striking out paragraphs 12 and/or 13 of the First and Third Defendants. In those paragraphs the First and Third Defendants claim:

"12. The Third Defendants as representatives of their lines, tribes, clans and families are the customary owners of the said land together with the true successors of Willie Paia, Renisi Ege and Jacob Zingihite as representatives of their respective lines, tribes, clans and families.

13. In the premises of the facts aforesaid the Third Defendants are customary co-owners of the said land."

The main ground in support of the Plaintiffs’ application is that of res judicata the Plaintiffs argued that the question of ownership over Kazukuru Right Hand Land had already been decided in previous proceedings in which both the Plaintiffs and Third Defendants were parties to on their privies. Those previous proceedings, the Plaintiffs said, were the CLAC No.6 of 1979 and Talasasa -v- Paia [1980 / 81 ] SILR 93. Thus counsel for the Plaintiffs argued that the same issue had already been decided upon conclusively between the same parties and their privies.

Counsel for the Plaintiff also argued that for the Third Defendants to litigate the same issue of ownership over Kazukuru Right Hand Land now is an abuse of process.

Mr Sullivan for the First and Third Defendants on the other hand argued that the previous cases referred to by the Plaintiffs were cases concerning "Mamamisi Hill" and not the whole of Kazukuru Right Hand Land which is a vast area of land. Counsel further argued that neither the First Defendant nor the Third Defendants are bound by the two previous proceedings as they were not parties to the Mamamisi Hill case. Thus, Counsel said, there is no abuse of process in raising the counter- claims in paragraphs 12 and 13.

The doctrine of "res judicata" which Daly CJ observed in Talasasa -v- Paia [1980/81] SILR 93 at 101 is more accurately described as "issue estoppel" in recent years has been succinctly expressed by Lord Guest in Carl-Zeiss-Stiftung -v- Rayner and Keeler Ltd [1966] 2 All E.R. 536 at 565 where he said:

"The requirement of issue estoppel still remain (i) that the same question has been decided; (ii) that .the judicial decision which is said to create the estoppel is final; and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."

The Plaintiffs would have to show that those requirements do exist in the present case. Once that has been done, then the First and Third Defendants would be estopped from raising those matters and the Court will not allow them to re-open the issues which the Court had already decided upon and concluded between the parties. In Ampthill Peerage Case [1976] 2 All E.R. 411 at 423, Lord Simon of Glaisdale had the occasion also to comment on the doctrine when he said:

"A line can thus be drawn closing the account between the contestants. Important though the issues may be, how extensive soever the evidence, whatever the eagerness for further fray, society says: "We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end you must accept what has been decided. Enough is enough. And the law echoes: "res judicata, the matter is adjudged. The judgement creates an estoppel - which merely means that what has been decided must be taken to be established as a fact, that the decided issue cannot be re-opened by those who are bound by the judgement, that the clamouring voices must be still, that the bitter waters of civil contention (even though channelled into litigation) must be allowed to subside."

Again the requirement creating the estoppel is that an issue decided upon conclusively by the Court must be accepted and that the parties who arc bound by the decision of the court cannot re-open the issue.

I now turn to consider whether issue estoppel applies in this case or not.

In CLAC No.6 of 1979, the Customary Land Appeal Court considered an appeal from the Gizo/ Kolombangara Local Court concerning "Mamamisi Hill". The issue before the CLAC was whether there was a boundary in existence dividing Kazukuru Land if so, on which side did the Mamamisi Hill fall in. The CLAC found that Mamamisi Hill lies to the east of a customary boundary running up the Hoedeo Valley and so fell within the "RHL". The CLAC then decided that Mamamisi Hill was the property of W. Paia and O. Bisili and their lines. On appeal to the High Court in Talasasa -v- Paia [1980/81] SILR 93 the appellant challenged the CLAC decision but the appeal was dismissed.

The issue clearly before the Courts then was the position of Mamamisi Hill, that is, which side of the Kazukuru Land did Mamamisi Hill fall in? The issue raised in the present case as contained in paragraphs 12 and 13 of the counter-claim is that of ownership of the whole of KRHL over which a logging licence had been issued to the First Defendant by the Government. I feel bound to say that those two issues are not the same.

Just for argument’s sake, even if the parties or their privies in the previous two cases are the Third Defendants and the Plaintiffs in the present case (which in the present proceedings, I am not prepared to hold as such simply based on Mr Paia’s Affidavit evidence) it would not be right for this Court at this stage to make an order based on a totally different case in the past although it may involve the same parties or their privies disentitling the Third Defendants from asserting their rights of ownership over the whole of KRHL. Such a course of action may very well amount to depriving the Third Defendants of the rule of natural justice.

Applying the principles as set out in Carl-Zeiss case, the Third Defendants are not estopped from raising their counter-claim as stated in paragraphs 12 and 13. The order sought in paragraphs 1 and 2 of the Summons cannot therefore be made.

In view of my finding in respect of paragraphs 12 and 13 of the First and Third Defendants’ counter-claim, it is now unnecessary for me to consider the Plaintiff’s argument on "abuse of process". The Court does have the inherent power to prevent misuse of its procedures in a way which would be manifestly unfair to a party to litigation before it or which would otherwise bring the administration of justice into disrepute among right-thinking members of the public. But I find that no such misuse in the present case.

The order sought in paragraph 3 of the Summons pursuant to Order 27 Rules 3 and 4, of the High Court (Civil Procedure) Rules 1964, is for a stay of proceedings. The Court’s power to order a stay of proceedings is an inherent one. It can be used to prevent misuse of its process. The Court can also use this power to enforce its orders or to compel one party to comply with the other party’s request for the purpose of the proper determination of an issue. In another word the inherent jurisdiction of the Court can also be used to make way for a just and proper trial of the issues between the parties by making suitable orders or directions. This inherent jurisdiction, however, must be exercised with great .care. The present circumstances of this case do not in my judgement justify my exercising of this inherent power of the Court, particularly, in view of my finding that the raising of the claim in paragraphs’ 12 and 13 of the counter-claim does not amount to a misuse of the court’s process.

The issue raised in those two paragraphs of the counter-claim is vitally important in this case to both the Plaintiffs and Defendants and as such I would be most reluctant to order a stay as requested in paragraph 3 of the Summons.

The other question which the Court is asked to consider is that the ownership issue over KRHL be referred to the Chiefs and/or Local Court under section 231 of the Land and Titles Act and section 8D of Local Courts Act. Counsel for the Plaintiffs argued that such referral must be made in this case in order to ascertain the ownership in custom of KRHL and under the above provisions this Court has the power to refer the matter to the Chiefs and/or Local Court. Counsel for First and Third Defendants on the other hand argued that this Court does not have the power to make such a referral. Counsel for Plaintiffs relied on section 231(2) of the Land and Titles Act which provides as follows:

"23/ (I) .............

(2) A local court shall have jurisdiction to hear and determine any matter of proceeding of a civil nature referred to it by the High Court or a Customary Land Appeal Court under this Act."

Counsel for the defendants argued that subsection (2) of section 231 does not give the High Court power to refer question of ownership of a customary land to a Local Court.

The language of the above provision is clear. It speaks of the Local Court having jurisdiction to hear and determine any matter referred to it by the High Court under the Land and Titles Act such referral must be made under some provision of the Act. The subsection (subsection (2) of section 231) does not, of itself, give any power to the High Court to refer any matter to the Local Court. The power to refer matters to the Local Court must be exercised pursuant to some provision under the Act. This is the view taken by Daly CJ in Teteha and Others -v-Registrar of Titles and Others [1980/81] SILR 209, at 216 where he said:

"Section 231(2) gives the Local Court jurisdiction to hear any matter ‘referred to it by the High Court under this Act.’ But there again one must find some provision which enables the court to so refer it."

The question of ownership of customary land is a matter exclusively for the Local Court under section 231(1) of the Land and Titles Act subject to the other provisions of the section and to section 8D, 8E and 8F of the Local Courts Act and need no referral from the High Court.

I do however express the hope that in view of the Court’s decision in this application together with the Injunction granted on 22 May 1992, the appropriate parties take the necessary steps in resolving the issue of ownership of Kazukuru Right Hand Land.

For the reasons mentioned in this judgment, I have no alternative but to refuse the Plaintiffs’ application.

Costs to the First and Third Defendants.

(G.J.B. Muria)
ACTING CHIEF JUSTICE