Wemea v Gapu [1997] SBHC 19; HC-LAC 011 of 1995 (10 April 1997)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 11 of 1995

JOSEPH WEMEA

-v-

AMON GAPU

Before: Palmer, J

Hearing: 27 - 29 November, 1996
Judgment: 10th April, 1997

Counsel: T. Kama for the Appellant;
L. Kwaiqa for the Respondent

PALMER J.:

JUDGMENT

This is an appeal against the order of the Eastern Customary Land Appeal Court (herein-after referred to as "E/CLAC"), dated 7th July, 1995, in which the E/CLAC ruled that the doctrine of res judicata applied to the parties in this case in that the question of ownership of the land in dispute had already been determined in a previous case between Sardius Magete and Marcus Barihaga. The E/CLAC had found that the parties in both cases were related to each other and that the land in dispute was the same.

It should be pointed out that judgment on this case has been delayed on the grounds that learned Counsels agreed to submit written submissions after the hearing, but have failed to do so. This judgment accordingly has been made in the absence of written submissions from learned Counsels.

The grounds of appeal read:

"1. The learned Justices had erred in law in accepting the judgment dated 17th October, 1972 of the Wainoni Local Court in Land Case No. 3/72 in respect of the ownership of Ghahani land which is located within Karena land as a final judgment between the patties in the dispute of ownership of Karena land.

2. That the learned Justices had erred in law in holding that the principle of res judicata was applicable or did apply in this particular land dispute, in the circumstances, as then Local Court decision dated 17th October, 1972 was not between the same parties and the issue of ownership was in respect of different land areas.

3. That the Court had failed to consider the evidence in the matter and decided against the weight of the evidence."

The name of the land in dispute which the Wainoni Local Court dealt with in Land Case No. 3/72 between Sardius Magete and Marcus Barihaga was GHAHANI LAND. The name of the land in dispute between the parties in this case is KARENA LAND.

The crucial issue for determination by this court is whether there is sufficient evidence before the E/CLAC to show that the Local Court decision dated 17th October, 1972 and the current case involved the same parties and the same land area.

What evidence was before the E/CLAC as to the area of Ghahani land in contrast to Karena land? With respect, the only evidence adduced before the E/CLAC was that Ghahani land is situated within Karena land. Apart from this, there is no other evidence before the E/CLAC to show how big the area of Ghahani land was in contrast to Karena land or vice versa. At paragraph 5 of page 2 of its judgment, the E/ CLAC stated:

"We accept that there was a court case held between Sardius Magete the cousin brother of the appellant and Marcus Barihaga the uncle of the respondent over the ownership of Gahani land within Karena Land the subject matter in this proceeding."

It appears that the E/CLAC accepted the statement made by Joseph Wemea that "Ghahani land is situated within Karena land" as implying that Ghahani land and Karena land are one and the same area. Unfortunately that is not necessarily correct and true. The word "within" connotes an area inside another area; and most likely a smaller area. The E/CLAC however did not inquire further on the respective areas or boundaries of Ghahani land as opposed to Karena land. With respect this is where the E/CLAC erred. It is never safe in customary land disputes to assume that the parties are talking about the same area of land without any form of boundary descriptions to confirm this. The E/CLAC should have heard evidence as to the area or the boundary of Ghahani land to confirm whether it is the same as Karena land.

The evidence from the court records and decision of the Wainoni Native Court in Land Case No. 3/72 is of little assistance. In the exhibit marked "AG3", in the affidavit of Anthony Giro, filed on 7th November, 1996, the land in dispute was described as "Ghahani or Herarata" . Anthony Giro was the Clerk to the Wainoni Native Court which heard the dispute in Land Case No. 3/72 between Marcus Barihaga and Sardius Magete. He stated in his affidavit that some mention was made of the boundaries of the parties but that he could only remember the names of a few. These however have been of little help.

Both parties however have filed affidavit evidence in support of what they believed the area of Ghahani land was as dealt with by the Wainoni Native Court in 1972.

In the affidavit of Joseph Wemea filed on 8th November, 1996, at paragraph 4, he states that there had been no land dispute in respect of Gahani land. The only dispute related to Herarata land, which comprised mostly of a coconut plantation owned by members of his tribe. The area of this land he estimates to be about 2 acres.

The Respondent, Amon Gapu however seeks to argue that the boundaries of the land in dispute then were the same as the land now in dispute. At paragraph 4 of his affidavit, he asserts that the whole tribal land was disputed at the said hearing despite the fact that the focus may have been only over the piece of land on which the coconut plantation was established.

The Native Court unfortunately, did not delineate the boundaries of Gahani Land in its judgment and so it is not clear what the correct boundary of Ghahani land was as determined by that Native Court.

It is pertinent to take note as well of the fact that the boundary which the parties claim in respect of Karena Land is also disputed. There is no evidence to show that the E/CLAC was even aware of the boundary of Karena Land, or required the parties before it to describe the boundaries of Karena Land which they were claiming. I note that it is a common oversight by Local Courts and sometimes the Customary Land Appeal Courts to require parties to provide a clear description, or a sketch plan is best, as to the boundaries of the land that they are claiming. Quite often the parties boundaries differ and so the court is obliged in those circumstances not only to determine ownership but also what the correct boundary it accepts. In the circumstances of this case it would not have been open to the E/CLAC to assume or conclude that the area of Ghahani land was the same as Karena Land, when even the boundary of Karena Land is disputed.

It being clear that the boundary of Ghahani Land had not been delineated by the Wainoni Native Court in Land Case No. 3/72, and it being clear as well that the boundary of Karena Land is disputed, it would not be open thereby for the E/CLAC to assume or make the conclusion that Ghahani land was the same as Karena land.
The evidence before the E/CLAC with respect, could not have been sufficient in itself to convince any reasonable tribunal that Karena Land was the same land as Ghahani Land. On this ground alone, I am satisfied the E/CLAC had committed an error of law that would warrant the intervention of this Court.

As to the question whether Sardius and Amon are related to each other and have the same claims, there is evidence to suggest that they claim ownership rights over the said land by virtue of their tribe, the Atawa Tribe. According to the evidence of Amon Gapu, he claims that Sardius and him were descended from two sisters, Kanokini (1) and Kakereanikehi. Their mother was Ketara Kaguru. According to the genealogy tree submitted to Court (exhibit 2), they would be cousins from the 8th generation. It does appear that the E/CLAC did take this factor into account when it held that Sardius and Amon were related to each other as cousins, though it is not denied that from their father's side they are first cousins. Their claims of ownership however has been traced matrilineally.

Whilst I am satisfied on one hand that there may be some evidence to show that Sardius and Amon may have been related to each other, on the other hand I am not satisfied that there is sufficient evidence before the E/CLAC to enable it to make the conclusion that the same area of land is being determined. It is my respectful view that the matter should be remitted back to the E/CLAC for it to determine whether Ghahani Land and Karena Land are one and the same land with the same boundaries or not. As well as dealing with this issue the E/CLAC should also hear and determine the rest of the appeal grounds of the Appellant before it.

Returning to the grounds of appeal, the first ground should be answered in the affirmative. In view of the finding of this Court that there was insufficient evidence for the E/CLAC to determine whether Ghahani Land was the same as Karena Land, the E/CLAC had indeed erred in accepting the judgment of the Wainoni Local Court in Land Case No. 3/72 as a final judgment in respect of the ownership of Ghahani Land.

The second ground raised should also be answered in the affirmative in that I am not satisfied that there is sufficient evidence before the E/CLAC to make the finding that the Native Court decision in Case No. 3/72 was in respect of the same land area.

As to ground 3, it is not so much a failure to consider the evidence in the matter as to the lack of sufficient evidence that would satisfy any reasonable tribunal to come to the conclusion that it did.

ORDERS OF THE COURT:

1. Uphold appeal of the Appellant.

2. Quash orders of the E/CLAC.

3. Remit case back to the E/CLAC, whether differently constituted or not, to re-hear the appeal of the Appellant (Amon Gapu), including the question whether Ghahani Land and Karena Land share the same boundaries or not and if not, what their separate boundaries are and to make a determination thereby.

4. Each party to bear own costs.

THE COURT