Sui v Ganifiri [1994] SBHC 86; HCSI-LAC 11 of 1994 (2 December 1994)

LAC 11 94 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 11 of 1994

PATTERSON SUI

-v-

DAVID GANIFIRI

High Court of Solomon Islands
(Palmer J.)

Land Appeal Case No. 11 of 1994

Hearing: 13, 26 October, 16, 25 November 1994
Judgment: 2nd December 1994

J. Remobatu for Appellant
T. Kama for Respondent

PALMER J: In the judgment of the Malaita Customary Land Appeal Court, delivered on the 13th of May, 1994 at Auki, it ruled in favour of the Respondent (David Ganifiri), declaring the boundaries of Rade Customary Land, as contained in the Appellant’s map, being; Bulia river in the southwest, the Sasau stream in the west, the Namokeketo stream in the northwest, the Kwaingurunuru Bonobono stream in the northeast, and the Rade river in the southeast. The Appellant (Patterson Sui) appeals against that ruling, by Notice of Appeal, filed at the Malaita High Court Registry on the 12th of August, 1994. Five grounds of appeal have been raised:

1. That the Customary Land Appeal. Court erred by failing to take into consideration previous cases between the Appellant’s father and the Respondent’s father.

2. That the Customary Land Appeal Court erred by not considering the issue of res judicata arising from previous Court Decision between the Appellant’s father and the Respondent’s father over the same land.

3. That the Customary Land Appeal Court erred by not considering the issue of estoppel in consideration of the fact that the Respondent’s father has accepted the boundary of Rade/Nafinua Land in previous Court cases against the Appellant’s father.

4. That the Customary Land Appeal Court erred by contradicting itself by holding that on one hand the Respondent showed customary evidence of ownership of Rade/Nafinua Land whilst on the other hand it decided thereafter that the Respondent owned Rade/Nafinua Land through purchase.

I will deal with grounds (1) (2) and (3) first.

Three court cases and judgments have been referred to by Mr. Remobatu, Counsel for the Appellant, in support of those grounds.

The first, is the Native Court Case no. 17/66, held at Faumamanu, on the 5th and 6th of July, 1966. The parties to that land dispute were Maelimani of Gwaunamanu and Justus Ganifiri of Nafinua. It is not in dispute that the Appellant and Respondents are direct descendants of the parties in that Local Court case respectively.

John Maelimani is the father of the Appellant, and Justus Ganifiri is the father of the Respondent. It is also not in dispute that the various customary lands in dispute in this appeal, but more specifically the question of the boundary between Nafinua land and Fera’abu land, are the same customary lands raised in dispute, in the 1966 and 1967 Native Court and High Court cases respectively.

The descriptions of the boundaries of Nafinua land and Fera’abu land in those earlier decisions are therefore directly relevant to the issues raised in this appeal.

It is therefore pertinent to scrutinise the decisions in those earlier cases very carefully and any other relevant court judgments.

First, the Native Court case in 1966. There were two customary lands that were the subject of the dispute in that case. These were the Fera’abu land and the Nafinua land. The central issue in dispute was an area of land that had been granted to J. Ganifiri with permission by Tailanga to use. As a result of that permission, J. Ganifiri had worked on the land and cultivated it. There appears to be no dispute as to the boundaries of Fera’abu and Nafinua land in that Native Court hearing.

The area that was in dispute in that Native Court, was the area of land over which Justus Ganifiri had been given permission by Tailanga to work on and cultivate. That area had been clearly admitted by J. Ganifiri to be Fera’abu Land. However, his contention was that, since he had worked on the land for some thirty years, that it meant that ownership rights now vested in him.

The decision of the Native Court was very clear. The area of land outside Nafinua which had not been purchased by the father of J. Ganifiri is Maelimani’s land. This meant that the area of land which J. Ganifiri had worked on for some thirty years, reverted back to the original owners of whom Maelimani was their head, or representative.

The matter then came before the High Court of the Western Pacific on appeal by J. Ganifiri. This was the second case referred to by Mr. Remobatu. In the High Court, two sketch maps were filed by the parties. The identification of the various boundary marks on those sketch maps are crucial, for the simple reason that they are not the same.

J. Ganifiri’s sketch map showed the boundary between Fera’abu land and Nafinua land, to be the Sasau Stream and the Kwainanunuru Stream. J. Maelimani’s sketch map on the other hand showed the boundary to be from Haumaifi to Baolalala and the Kwainanunuru Stream.

In the note of oral Judgment of the Court, the learned Chief Justice Bodilly made the following pertinent remarks:

“The appeal concerns and known as Feraabu adjoining Nafinua. The facts are not in dispute. Both parties have put in sketch maps, the land being as yet unsurveyed, which correspond fairly closely and I think there is no confusion in the minds of the parties as to the boundaries of the area of land which is in dispute. It is admitted that the Appellant was, and still is, the owner of Nafinua and that he occupied the land across the boundary stream called Fera’abu by virtue of permission granted to him by a man called Tailanga who was a linesman, by a female line by descent, of the Respondent.”

The crucial words are those that have been underlined. Those words are important because for the first time they describe or indicate in a court decision, where the location of that area of land that was in dispute, between the parties. It is also important to note that the location of that disputed area was admitted to by the parties before the High Court. It is therefore important to identify on the two sketch maps if possible, where that disputed area was.

The key word in that paragraph in my view is the reference to the ‘boundary stream’ by the learned Chief Justice. What is that boundary stream?

As earlier pointed out, there are references in the two sketch maps, to two streams which could possibly be that ‘boundary stream’. One is the Sasau Stream, and the other, the Kwainanunuru Stream. The question is which of these two streams could it have been? The answer in my view is that it could only have been the Sasau Stream. The reason is simple. In both sketch maps, the area of land that was in dispute was clearly marked on both maps, as located on the side of the Sasau Stream. This simply meant that the boundary between the Fera’abu land and the Nafinua land, was the Sasau Stream, as more clearly indicated in the sketch map of J. Ganifiri. It could not have been the Kwainanunuru Stream.

That description of the area in dispute between the parties in 1966 by the Native Court and in 1967 by the High Court has not been challenged right up till now. It must therefore be accepted as the correct description of the dividing boundary between those two customary lands.

There is also, another land case which came before the High Court in 1971, before the same Chief Justice Bodilly, who presided over the 1967 land appeal case. This was the case of Shaberel Nunu v. Amasiah Bini, Native Land Appeal case no. 14/71, judgment delivered on the 28th of September 1971. This case is relevant for the reason that one of the customary lands which had been in dispute in the 1967 High Court case, was also the subject of that land appeal case. This was the Fera’abu customary land. That dispute however was between members of the same tribe as John Maelimani (the Respondent in the 1967 case), and related to questions of succession in custom to the person who and been delegated the responsibility by Maelimani, to control and look after Fera’abu land. That caretaker was the father of Nunu, who had died.

It is interesting to note that the learned Chief Justice, at the first page of the judgment, carefully and meticulously, described the boundary of Fera’abu land.

It is also interesting to note that when the matter came before him, two sketch maps were also exhibited to the court. The one submitted by Nunu defined the boundary between Fera’abu and Nafinua land in exactly the same way as the sketch map submitted to the high Court in the 1967 case, by Justus Ganifiri. Amasiah Bini’s sketch map however, defined the boundary, in the same way as Maelimani had done, in the 1967 case; i.e. the boundary along Haumaifi to Baolalala to the Kwainanunuru stream. The learned Chief Justice did not accept the sketch map as submitted by Amasiah Bini. The boundary described was:

“The Land in question is an area of Land known as Fera’abu which abutts onto the western bank of the Rade river which flows into Kwai harbour. The Land in issue is bounded by a line commencing on the western bank of the Rade river where the Luaama stream to its junction with the Kwaidia stream, thence up the course of that stream to its head waters, thence by a short spearline to Kwauinuka stream, thence by way of the Suluniu stream, and the Alakona stream to a place name Nal ferofero, thence by an old road called Fausaia road to the headwaters or the Agariru stream, thence by a short spearline to the head waters or the Faunadali stream, thence down the course of that stream to its junction with the Gwaikwau stream, thence down the course or that stream to its junction with the Kwanurunuru stream, thence up the course that stream to its headwaters, thence down by a short spearline to the headwaters of the Sasau stream, and thence down the course or that stream to its point of entry into the Rade river, thence up the west bank of the Rade river to the point of commencement at its junction with the Luaama stream. The area is more particularly shown on the sketch plan annexed hereto.”

That sketch plan referred to is consistent with the one submitted by S. Nunu. The boundary description of the learned Chief Justice of Fera’abu land where it abuts the Nafinua land is therefore consistent with his description of the boundary stream being the Sasau Stream, as noted in his oral judgment in the 1967 case. And that description is consistent with the boundary described by Justus Ganifiri.

It is pertinent to note that Maelimani was present in the Native Court hearing in 1971, and therefore must also have been aware of the High Court’s judgment in that case. That description of the boundary by the High Court has also remained unchallenged since. The relevance of that description of the boundary of Fera’abu land cannot be easily discarded with.

The third case referred to by Mr. Remobatu is the case of David Ganifiri -v- Haniel Barai and Jerimuel Maenene, High Court civil case no. 22/91, judgment delivered on the 5th December, 1991. That case involved a trespass action against the defendants. The defendants had bought a piece of land in 1975 from Maelimani, and then built an iron-roofing house and planted coconuts inside it.

At page 4 of the court’s judgment, the question of whether there was a stream called Fera’abu was addressed by the learned Judge, Muria J. (as he then was). He concluded correctly that there was no mention of any stream in the judgment of Bodilly C.J. of such a name.

At page 5 of his judgment, the learned Judge stated:

“The plaintiff accepts that Maelimani sold a piece of land to the defendants. That, piece of land is within Fera’abu land according to the evidence of Maelimani’s son, Patterson Sui who witnessed the sale by his father and payment of AU$900. 00 by the Defendants. There has never been any challenge to that sale since 1975 nor has there been any further dispute between the plaintiff and Maelimani since 1967. Those evidence are clearly supportive of the defendants rather than the plaintiff and as such I cannot be satisfied that the defendants are trespassing on the plaintiff’s land.”

The above case can be distinguished on the grounds that the learned Judge was satisfied on the evidence before him that that sale was in respect of land within Fera’abu land.

There is however, also an important point to note, in that the case of S. Nunu v. A. Bini (supra) was not it seems brought to the attention of that court, as there was no mention or reference to it in the court’s judgment.

The appeal points therefore raising the issue of res judicata and issue estopple will be allowed, but not for the reasons sought in the Notice of Appeal. The description of the area in dispute in the 1967 High Court land appeal case had been clearly adverted to in the note of oral judgment of the learned Chief Justice. That description of the area in dispute has not been challenged. Rather it has been confirmed in the later judgment of the High Court presided over by the same Chief Justice in 1971, in the case of S. Nunu v. A. Bini (supra). The issue therefore about the boundary between Fera’abu land and Nafinua land had already been litigated upon and ruled upon. The principle of res judicata therefore applies; that is, the matter has been adjudged. The Local Court and the Customary Land Appeal Court therefore had no jurisdiction to deal with this matter, and accordingly their decisions must be quashed. This also means that it is not necessary to consider grounds (4) and (5) of the appeal.

Each party should bear their own costs.

A.R. PALMER
JUDGE