Kofana v Aute'e [1999] SBHC 92; HC-LAC 001 of 1998 (10 September 1999)

HIGH COURT OF SOLOMON ISLANDS<

Land Appeal Case No.001 OF 1998

ROBINSON KOFANA, MOSES OFASISILI

AND BILLY MAOMA

v

LUCY AUTE’E AND MARTIN SADE

In the High Court of Solomon Islands

Before: Palmer J.

Land Appeal Case No. 1 of 1998

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 1<1st September1999

Judgement: 10th September 1999

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> A. R style="font-size: 12.0pt">adclyffe for the Appellants

C. Ashley for the Respondents

PALMER J.: This appeal is about a disputispute over rights of ownership between the parties, over Kwaruiasi and Biranakwao Lands. The root of this dispute can be traced back to an earlier land dispute case over the same lands, but between different parties. The parties to that case were Ata Salani and David Idui v. Atonia, Bili Maoma and Martin Sade, Malaita Local Court Case Number 18/84 (hereinafter referred to as “MLC 18/84”). The difference with that case is that the three main parties in this dispute [Billy Maoma (also known as “Bili Maoma”), Lucy Aute’e (Atonia’s successor in custom and Martin Sade] were on the same side in that case; they were the Defendants.

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Theita Local Court had held in that case, that Atonia, Billy Maoma and Martin Sade were were the land owners of Kwaruiasi/Biranakwao Lands as opposed to Ata Salani and David Idui. That decision was appealed to the Malaita Customary Land Appeal Court, in Malaita Customary Land Appeal Court No. 5 of 1985, but was dismissed (see copy of judgment of the Malaita Customary Land Appeal Court reproduced at page 37 of the Appeal Records). It is important to appreciate the significance of that case right from the beginning because its relevance to this new dispute can only be properly understood in the light of that significance.

In October of 1996, the current Appellants commenced a land dispute case the Chiefs Committee againsgainst the current Respondents over what was described as “rights of inheritance occupational rights over Biranakwao and Kwaruiasi Lands”. The Respondents refused to attend the Chiefs hearing arguing (albeit erroneously) that the matter had already been finally determined in case MLC 18/84. The Appellants took up the matter further with the Malaita Local Court. It was heard as Malaita Local Court Case Number 2 of 1997. The Respondents (defendants before the Local Court) reiterated their argument inter alia, that the matter was res judicata, relying on case MLC 18/84. Their argument was accepted by the Local Court and the claim of the Appellants (Plaintiffs) dismissed. The Local Court also observed, although this appears not to have been raised in evidence and argument before the said court (see copies of transcripts of evidence and judgment of the Local Court reproduced at pages 21 to 24 of the Appeal Records) that in custom there was no such thing as primary or secondary rights existing among landowning groups of customary land in Malaita.

The Appellants took the matter further to the Malaita Customary Land Appeal Court (“”). Eight points were were raised on appeal. These included the grounds (i) on res judicata, that the Local Court erred in law in finding that the doctrine of res judicata applied to the case before it, and (ii) the issue of the rights of ownership as between Atonia, Sade and Billy Maoma were fresh issues between the parties yet to be argued before the courts and finally determined (see pages 19-20 of the Appeal Records).

The MCLAC gave judgon 17 November 1997, in favour of the Respondents. It again ruled, inter alia, that the Local Court was correct in applying the doctrine of res judicata and that the issue of succession was not separate from the issue of ownership. It went further to point out that the Appellant could only argue about the issue of succession over Billy Maoma’s share but not that of Atonia and Sade.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Appellant now comes to this Court for relief on grounds essentiallt the findings of the MCLACMCLAC (and the Malaita Local Court), on the doctrine of res judicata were wrong in law. The Respondents argue otherwise.

With respect, I find the Appellants to be correct and that their appeal should beld. The doctrine of e of res judicata had been amply discussed by this Court in numerous cases already. In Talasasa v. Paia and Another (1980/1981) SILR 93 at page 100-104, his Lordship Daly CJ. discussed in detail the application of that doctrine to decisions involving customary land disputes. His Lordship states:

Solomon Islands cust customary land cases usually involve the interests of a line in a particular piece of land as opposed to the interests of another line. There is very often no determination of who falls within the line and a degree of vagueness about the extent of the land under discussion. For my part, I would be most reluctant to hold that a judgment in a customary land case is a “judgment in rem” and binding on the world at large. After consideration of the authorities, I am happy to conclude that they do not in any way require me to do so.

These judgmentsthen, in my view, jud, judgements inter parties”

His Lordship then went on to identify the three essential ingredients in which the doctrine of res judicata would apply in “judgments inter partes”:

(i) &nb) &nnbsp; &nsp; aniearlasr c in which hich the cause of action or point in dispute was really the same;

(ii) &nbsp &nb p; al ina determinatiination by a court of that cause of action or point on its merits;

(iii) &nbs; &nbhp; tis ra ofng the the same cause of action, or the same point which has been distinctly put in issue, by a party who has had the action or point solemnly and with certainty ed ag him.an>

These principles had been adopted by this Court in more recases (see David Lenga v.ga v. Joses Lote (unreported) Civil Case number 21 of 1995 judgment delivered on 18 May 1995; and Aziel Laealaha v John Tohuinoni (unreported) Land Appeal Case number 8 of 1995 judgement delivered on 13 October 1995).

I had already set out for convenience in this judgment who were trties to case MLC 18/84, re4, relied on by the Respondents as establishing the doctrine of res judicata to this case. That was done primarily to demonstrate that the parties to that case were not the same parties as sought to be relied on by the Respondents in this case. In the case MLC 18/84, the parties were Ata Salani and David Idui of the one part, and Billy Maoma, Atonia and Martin Sade of the other part. The decision in that case accordingly could only be binding as between the Plaintiffs and Defendants in that case; namely Ata Salani and David Idui and their tribes on one part, and Billy Maoma, Atonia and Martin Sade and their tribes on the other part. It does not bind Billy Maoma for instance, that is, stop him from taking any case against the other two defendants to establish what rights of ownership in custom each of them might hold. It is not in dispute, and the Appellants in this Court nor the courts below, deny, that in the case MLC 18/84 and CLAC No. 5 of 1985, the issue of ownership of Kwaruiasi and Biranakwao Lands as against Ata Salani and David Idui had been awarded in favour of the three Defendants. In the present case however, the Appellants now wish to identify in custom what exactly are their rights of ownership as amongst themselves (as the recognised landowners). It seems the Appellants are alleging that primary rights of ownership are vested in them whilst merely secondary rights vested in the Respondents. They argue that issue had never been determined in any court of law previously and that accordingly the doctrine of res judicata does not apply. Respectfully I agree. The proper order in the circumstances is to allow the appeal and remit the case back to the Malaita Local Court to determine the question of rights of ownership as between the three landowners de novo.

In my respectful view some of the things thellants (who were the Plaintiffs in the Local Court) may y have to clarify in their claim, is whether their dispute against the Respondents (the Defendants in the Local Court) include any particular area of land within Kwaruiasi and Biranakwao Lands, as well as the question of rights of ownership (referred to by the Appellants in their claim as the “degrees of ownership”). Some concern was raised regarding the use of the terms “primary and secondary rights” as being of foreign importation and not relevant to the context of Solomon Islands culture and custom. With respect however, that is not necessarily so, provided it is clear in the mind of the parties and the court what exactly is meant by the use of those terms. Similar concerns were raised in other cases but otherwise it seems the distinctions have general application where the terms are clearly understood in relation to the rights identified (see the cases of Buga v. Ganifiri (1982) SILR 119; Zephaniah Kinisita v. Orkley Ramolele and Augustine Maemarine Land Appeal Case No. 1 of 1996 judgement delivered 30 September 1996; and Narovo v. Peter Geli, John Soga, Harold Sai and Solo Semi Land Appeal Case No. 4 of 1996 judgement delivered 2^nd May 1997). It would be important therefore for the parties who use those terms to explain to the court what exactly is meant by those terms so that their use is understood by all.

It may be of interest and relevance for instance, to refer to the Report of theial Lands Commission sion written by Colin H. Allan in 1957, headed “Customary Land Tenure in the British Solomon Islands Protectorate”, submitted to this Court by learned Counsel Mr. Radclyffe, in which the learned Author sought to explain what primary interests and secondary interests might mean. I quote the relevant parts in full because these may assist the parties in having a better understanding of the use of those terms:

“6. idualreste of m of members of land groups mups may be divided into two kinds, primary and secondary. Primary interests are usually derived by inheritance, though in some instances they may be acquired by purchase or some customary mode of transfer. Only members of the actual fine within the land group can hold primary interests. Each member of the line is regarded as having a joint and equal primary interest in the actual soil of the land, and if on the coast, of the reef which adjoins it. Such interest differs from those interests which each member of the line has acquired in the land by his own efforts. Normally such interests constitute a right to use specific plots. The method of establishing such interests differs for persons holding primary as against secondary interests.

7. ;&nbssp; It i>It isl forl for members of the the line to confide jointly the guardianship of their primary interests to the head of the line, whexpeco consult all primary interest holders if a if any many major transfer of interest in the land is contemplated. The essential characteristic of a primary interest is that the holder can clear virgin forest for the purpose of growing subsistence crops without seeking anyone’s permission, providing he does not interfere with the cultivation of others. If cash crops are to be planted, it is becoming usual for a man to be required to consult with other primary interest holders.

8. &nbspondacy interests are usually no more than rights of usage, and never constitute an interest amounting to ownership in the actual soil. They areired r by o secondary kinship relationstionship thip to memo members bers of the line, or by seeking and receiving permission to cultivate a plot of land, by inheritance, or by some customary mode of transfer. Secondary interests can sometimes be, converted to primary interests if every primary interest holder dies out.

ORDERS OF THE COURT:

1. &nbbsp;& &nsp; Usp; UPHOLD APPEAL.

p clasoNormaNormaNormal" stl" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> 2. SET ASIDE ORDERS DERS OF THE MALAITA CUSTOMARY LAND APPEAL COURT DATED 17 NOVEMBER 1997.

3.  p;&nbbsp; REMIT CASE BASE BASE BACK TO THE MALAITA LOCAL COURT TO BE HEARD DE NOVO ON THE CLAIM OF THE PLAINTIFF. (Note: not tit rematters, subject of-course to any usual grounds of objection whic which mayh may be r be raised, whether the said local court is comprised of the same local court justices or not, as the issues in this case had not yet been fully agitated before the said court).

4. THE LANTS TO HAVE THEIR COSTS IN THIS APPEAL.

THE COURT