Asa v Wakasi [1996] SBHC 25; HC-LAC 010 of 1995 (15 May 1996)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 10 of 1995

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JAPHLET ASA

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DAVID WAKASI

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Before: Palmer J

Hearing: 13th May 1996

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Judgment: 15th May 1996

Counsel: A. Radclyffe for Appellant

PALMER J:

This is an appeal brought under Order 60A of the High urt (Civil Procedure) Rules, 1964, against the decision of the Makira Ulawa Customustomary Land Appeal Court sitting at Kira Kira, alleging that the decision was erroneous in law or that there was a failure to comply with the procedural requirements of a written law.

The Facts

The name of the land in dispute is WAIMERA Land and the boundaries as accepted by the Bauro Local Court (noted in exhibit "A") and the Customary Land Appeal Court, commence from lanama to laro to Roroaharau Stream to Roroaharau sea side and back to lanama.

The dispute first came before the Custom Chief's, pursuant to the Local Court (Amendment) Act, 1985. Following that hearing, the chiefs awarded ownership in favour of J. Asa (the current Appellant). The chief's findings however were riot accepted by D. Wakasi (the current Respondent) and so the matter was re-heard by the Bauro Local Court in August of 1992. In the Bauro Local Court, the decision again went in favour of the current Appellant. The matter then came before the Customary Land Appeals Court, where the issue of res judicata was raised as one of his appeal grounds. The CLAC considered that issue separately, on the basis that if it applied, then that was the end of the matter. It found in favour of the current Respondent and ruled that the current Appellant was bound by the decision in Land Case No. 1 of 1976 between J. Takaragimou and S. Surumurusia. The CLAC found that the land disputed in the 1976 case, namely, Awaniuraetagae Land, was located within Waimera Land. It also found that J. Asa (current Appellant) and S. Surumurusia (the losing party in the 1976 case) were of the same Amea Tribe. It then concluded that the doctrine of res judicata applied, and ruled that the current Appellant was bound by the 1976 Local Court decision.

It is that finding of the CLAC which the current Appellant now appeals against, inter alia, that it is erroneous in law. A number of grounds have been raised in support of the appeal. It is important at the outset to bear in mind that it is the orders of the CLAC that are being appealed against and not the reasons

The first matter which the Court should enquire into therefore is whether the finding by the CLAC that the doctrine of res judicata applies, is correct or not. The doctrine of res judicata is a doctrine in law and therefore despite the submission by learned Counsel for the Appellant that it is not open to this court to enquire into the merits of the applicability of this doctrine to this case, it is my view that this court should make the necessary enquiry that would enable it to ascertain, whether the application was correct in law or not. If the application was correct and justified by the facts before the CLAC, then this Court should not intervene.

There were two crucial matters which the CLAC had to consider. First, whether there had been an earlier case in which the cause of action or point in dispute was the same? In other words, whether the land in dispute in this case (Waimera Land), had already been adjudicated upon, and a final determination entered. Secondly, whether the parties in this case are the same parties in the earlier case, or privies to it? In this case, the specific question before the CLAC was whether J. Asa was of the same line as S. Surumurusia, such that it can be said that their "source of property rights" were the same. The above two matters involve questions of fact which would need to be investigated. On this point, Learned Counsel for the respondent submits that there was sufficient evidence before the CLAC to make a satisfactory and correct decision and that this was in fact done by the CLAC. This court therefore should not intervene.

1. Is the cause of action the same?

In the CLAC, the submission made by the current Respondent (Appellant then), was that Waimera Land was the same land as part of Hiru Land which he had won in the CLAC case no. KK16/83 under the Forest Resources and Timber Utilisation Act (hereinafter referred to as "Hiru Land"), and the same as Awaniuraetagae Land (see page 3, last paragraph, and page 4, 3rd paragraph of the records of proceedings of the CLAC).

The current Appellant (Respondent then), on the other hand, stated in response to questions from the Court that (i) Hiru Land shares its boundary with Waimera Land, and, (ii) that Awaniuraetagae Land is situated within Waimera Land (see p.2, question (8) and answer. and question (10) and answer).

The CLAC accepted the answer made by the current Appellant (Respondent then), that Awaniuraetagae Land is situated within Waimera Land and concluded it seems, that the cause of action is the same. Is this conclusion correct? Is there evidence to support this conclusion?

It is not clear how such a conclusion can be drawn from the statement made above, by the current Appellant (respondent then). If the literal meaning of the words used, is applied, then the correct construction of the current Appellant's statement or answer, should be that Awaniuraetagae Land is a smaller block of land within (inside) Waimera Land. This would mean that only part of Waimera Land (that is, Awaniuraetagae land) had been earlier adjudicated upon in the 1976 case. There had been no concession made, by the current Appellant in the CLAC hearing, (1992), that Waimera Land was the same piece of land as Awaniuraetagae Land, as claimed by the current Respondent (Appellant then). Further, it should be noted that the boundary descriptions appear to be different and distinct. Though in the 1983 CLAC case no. KK16183, at page 6, second paragraph, the CLAC found that the land known as Awaniuraetagae land, was the same land in dispute in that case; that is "Hiru Land".

The crucial issue therefore, whether Waimera Land was the same as "Hiru Land" and Awaniuraetagae Land, needed to be further enquired into. The CLAC should have required that further evidence in particular by way of sketch maps be produced, identifying clearly the boundaries of Awaniuraetagae Land and Waimera Land, on that same sketch map. That should make crystal clear whether, the court was dealing with the same areas of land or not, and in turn assist the CLAC on determining whether the cause of action was the same or not. This is where the matters raised in grounds 1 and 2 of the Notice of Appeal relevant.

In ground 1, it was claimed that the Appellant had not been given an opportunity to make submissions to the CLAC on the issue of res judicata. Had that been done, he would have been able to make clear what the true and correct position was regarding those areas of land described above. The records of proceedings of the CLAC do not show that any such opportunity was given to the current Appellant (Respondent then). No evidence to counter this point has been adduced as well. Accordingly, I am satisfied that there had indeed been a breach of the requirements of natural justice, whether deliberately or not, but most likely, inadvertently, in not giving the current Appellant opportunity to be heard. The correct procedure to be adopted in such situations is for both parties to be given opportunity to be heard, before the court should adjourn to consider its judgment. The failure of the court to give opportunity to the current Appellant (Respondent then) to make submissions, is directly related to the decision eventually reached by the CLAC. I am satisfied that an error of law had been committed and as a result had given rise in turn to a finding that was not supported by the evidence.

The second ground of appeal raises the point that there was no evidence before the court on which a proper decision on res judicata could be maintained. Again I have already alluded to this matter when I pointed out that there was no clear or conclusive evidence on which the CLAC could have come to the conclusion that the land in dispute (Waimera Land) was the same piece of land known as Awaniuraetagae Land. There is also no evidence too to show that the CLAC justices may have been relying on their personal knowledge of those areas of land, to assist them in coming to such conclusion, otherwise this would have been noted in the records.

I am satisfied that one of the crucial elements necessary for the application of res judicata had not been properly and satisfactorily addressed, to the extent that the conclusion reached by the CLAC was unsubstantiated, and accordingly, erroneous in law, and therefore should be interfered with by this court.

This in a way disposes of this appeal and it would not be necessary to consider the other matters raised because even if those other matters, in particular, the answers to the second crucial question, whether the parties are the same or not, may be answered in favour of the current Respondent, it would not affect the finding made above, that the decision of the CLAC on the application of the doctrine of res judicata was erroneous in law. Nevertheless, I will still deal with it for completeness sake, because the other grounds of appeal referred to it.

2. Are the parties, the same?

The crucial question which the CLAC was required to address was whether the current Appellant (J. Asa) was of the same line as S. Surumurusia (the losing party in the 1976 case), such that it can be said that they are "one people" and had the same "source of property rights". Some useful insights can be obtained when comparing the records of proceedings of the Bauro Local Courts with the records of the 1976 case. At page 4 of the Local Court records J. Asa traces his lineage through Kereramwo and Sumwera, to Katoro, Keregape and Mwanehirua. If we compare this with the claims of S. Surumurusia in the 1976 case (at page 2 of the records), we will find that the same names above are mentioned; names like Katoro and Sumwera. In the statement of defence witness Simeon Murusigwea, there is a reference to Katoro, Sumwera, Kereramwo, Mwara and Agusi as the landowners of Awaniuraetagae Land. The names of the ancestors through whom property rights are being claimed by J. Asa appear to be the same ones relied on by S. Surumurusia. It is possible therefore that they are but the "same people"; that is, of the same line. I point out however that this is not a conclusive finding; rather, more of an observation. In view of my earlier conclusions, the issue of res judicata would need to be re-determined, and this should include the other points of appeal raised in the CLAC.

Grounds 1 and 2 should be allowed.

Ground 3 should be dismissed. There is insufficient evidence to support the allegation.

Ground 4 should also be dismissed. There is evidence on which the CLAC could have come to the conclusion that not only is the current Appellant and S. Surumurusia of the same Amea Tribe, but also of the same line claiming the same "source of property rights"

Ground 5 need be allowed in part only in relation to the letters submitted by the current Respondent (Appellant then) to the court.

ORDERS OF THE COURT

1. Decision of the CLAC dated 7th July 1995 quashed.

2. Case remitted to a differently constituted CLAC for rehearing.

3. No order for costs

ALBERT R. PALMER,
HONOURABLE PUISNE JUDGE