Ghemu v Clerk to the Marovo Local Court [1996] SBHC 98; HCSI-CC 93 of 1995 (10 September 1996)

CC 93 95 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 93 of 1995

KITURU GHEMU

-V-

THE CLERK TO THE MAROVO LOCAL COURT AND JIM KOLIKEDA

High Court of Solomon Islands
(Palmer J)

Civil case No. 93 of 1995

Hearing: 9th August 1996
Judgment: 10th September 1996

A. Nori for the Plaintiff
G. Suri; for the Defendant

JUDGMENT

PALMER J: The Plaintiff applies by originating summons for the following declarations:

“1. That the decisions of the Marovo Local Court dated 25 April 1985 and that of the Customary Land Appeals Court (Western) dated 9 April 1986 were res judicata and therefore void and of no effect;

2. That the decision of the Marovo Local Court No. 4/62 is the only valid court judgment affecting Poi-Ikusu Land;”

A jurisdictional issue has been raised by the Defendant which would need to be addressed first. Learned Counsel, Mr. Suri for the Defendant submits that the form of action in which this application has been made is defective and therefore should not be entertained by this Court. He raises his objection pursuant to Order 58 of the High Court (Civil Procedure) Rules, 1964. He points out that the Plaintiff is seeking declaratory orders pursuant to the doctrine of res judicata. That cannot be brought within the requirements of Rule 1 and 2 of Order 58, and accordingly, he submits that the application of the Plaintiff should be struck out. He seeks to argue that there is no question of construction pertaining to any deed, will, or other written instrument and that therefore it was wrong to bring an action by originating summons.

Is there any question of construction pertaining to any written instrument? Whilst, it would seem that there is no clear question of construction, the issues raised in the application of the Plaintiff, are primarily questions of law. For instance the question whether the doctrine of res judicata would apply or not, is a question of law. If it applies, then that would be the end of the matter. As a matter of practice, questions of law have commonly been dealt with by way of originating summons, rather than by writ. It should also be noted that Rule 5 of Order 58 gives a discretion to the Court on the question whether an action should be entertained by way of originating summons or not. In the circumstances of this case, I am satisfied that the application by the Plaintiff can be dealt with by originating summons.

THE ISSUE

It is not in dispute that there had been a previous court hearing and judgment given in respect of Poi-Ikusu land (see Land Case No. 4/62 Mathew v. Namusu). It is also not in dispute that the parties to this case are directly related to the parties in that case, and that the subject-matter is the same. The crucial submission of the Plaintiff is that the judgment of that Native Court in Land Case No. 4/62 was final and binding on the Defendant; that is the doctrine of res judicata applies to this case and that the Defendant is estopped from opening up this case again.

The Defendant on the other hand, seeks to put the argument that the decision of the Local Court in case no. 4/62 was not binding on the Defendant in that it had no jurisdiction in law to deal with that case. Mr. Suri points out that the Warrant establishing the Western District Native Court restricted its monetary jurisdiction to no more than the value of 100 pounds (Legal Notice No. 3/62). He argues that the value of Poi-Ikusu land in 1962 could not have been less than 100 pounds and accordingly, that Native Court (now known as the Local Courts), had no jurisdiction to deal with the land dispute right from the beginning. The proceedings accordingly were a nullity right from the beginning, and the Defendant therefore was not bound by that decision when he initiated subsequent proceedings in the Local Court in 1985 inrespect of the same land and as between the same parties.

It is important to consider first and in some detail, the above submission of the Defendant. The above submission is based on the notion of a jurisdictional error of law committed by the Marovo Native Court in 1962. That is, that the Marovo Native Court committed an error of law with regard to the limits of its jurisdictional powers, to hear and determine the land dispute case between Mathew v. Namusu, in that the Warrant establishing the Marovo Native Court specifically limited its jurisdiction in land dispute cases to a monetary value in respect of the land the subject of the dispute, to not more than 100 pounds. See legal notice no. 3/62, for the Warrant which established the Marovo Native Court in the Western District. At paragraph 4, the Warrant provides:

“The Court shall , subject to the provision of the Native Courts Ordinance, have jurisdiction -

(a) not relevant

(b) (i) in land disputes when the value of the land in dispute does not exceed 100 pounds; ....”

In support of this submission, the Defendant has filed a copy of a valuation certificate prepared by a Land Valuer from the Ministry of Lands, in which the valuer has sought to suggest that the value of the land in 1962 was more than 100 pounds. (See affidavit of Raynick Aquillah filed on 12 June, 1996 at paragraph 5, and exhibit ‘RA2’).

I have carefully considered the submission of Mr. Suri and come to the conclusion that the issue raised is one of fundamental importance to the question of whether the doctrine of res judicata would apply in this case. If the value of the land in dispute in 1962 as between Mathew v. Namusu was more than 100 pounds, as alleged by the Defendant, then as a matter of law, the Marovo Native Court would have had no jurisdiction whatsoever to have gone ahead and heard that land dispute in 1962. The effect of this jurisdictional error of law would simply be to render the whole and subsequent proceedings of that court a nullity right from the beginning. In other words, there would have been no valid judgment in existence which the Plaintiff can rely on.

Mr. Nori’s reply to this submission on the other hand, has been lacking in substance, almost to the point of conceding that point. No evidence in rebuttal to that of the Defendant has been produced to suggest that the value of the land in 1962 may have indeed been less than the statutory limit of 100 pounds. On the balance of probability, I am obliged to accept the evidence adduced by the Defendant and to reach the conclusion, albeit hesitatingly, that the Marovo Native Court which dealt with the land dispute between Mathew v. Namusu had no jurisdiction to deal with that land dispute, bearing in mind that this issue of jurisdiction had not been it seems fully canvassed by the parties in this Court. Nevertheless, for the purposes of the orders sought in this application by the Plaintiff, I am satisfied that the declarations sought should be denied.

Costs of this application to be borne by the Plaintiff.

A. R. PALMER

JUDGE