Lagobe v Lezutuni [2005] SBHC 59; HCSI-CC 126 of 2004 (14 April 2005)

HIGH COURT OF SOLOMON ISLANDS
Supervisory Jurisdiction

Civil Case No. 126 of 2004

IN THE MATTER OF Vella La Vella Local Court Case No. 5 of 1999

AND IN THE MATTER OF Reresare Customary Land

AND IN THE MATTER OF An application for a Writ of Certiorari to be issued to remove and quash the proceedings and decision of the Vella La Vella Local Court in Land case No. 5 of 1999

BETWEEN:

JACK LAGOBE
Applicant

-v-

AND: FRANK LEZUTUNI
Respondent

Gizo
10 December 2004
Judgment 14 April 2005 at Honiara.

Customary law-extent of powers in High Court to interfere with local court findings-whether appropriate for the High Court to enter upon fact finding when asked to review local court order

Prerogative writs – application for certiorari – power in the High Court to entertain application directed to quashing a local court order –principles applicable

Practice and procedure – Rules of Court, O 61 dealing with Prohibition, Mandamus and Certiorari – whether Rule can be called in aid where custom involved in local court proceedings – appropriateness of “common law” principle of res judicata when considering the powers of the local court.

The applicant from Vella La Vella seeks to bring up and quash a decision of the local court for that the local court had earlier ruled upon the same dispute affecting these parties, claiming the court was bound by the evidentiary rule, res judicata. Sufficient facts appear from the judgment which seeks to address the apparent conflict between adopted English common law rules and custom to be applied when determining arguments over customary land in accordance with the procedure governed by the Land and Titles Act.

Held:

1. This court cannot presume to know such law and custom in that area, for the chiefs are its arbiters and decide such custom, (which no doubt takes cognizance of changing mores and circumstances) at that time when the dispute arises.

2. The local court “Order”, dealing as it does, with custom is not a constitutive legal act, such as a judgment debt for damages for nuisance or trespass, for the local court is expositive of custom. The local court does not find the law, in the sense understood by English “common law” judges, via the legal heritage of centuries of English legal precedent, but enunciates “customary law” found in the oral traditions, practices and customs carried on by particular tribes and societies, where the leaders, chiefs or particular individuals are acknowledged to be the repository and custodian of such knowledge, by which the tribe or society traditionally conducts its affairs. That is the function of the custodians of the tribal law, and strict rules of evidence, as commonly understood in an adopted sense, cannot apply.

3. A clear differentiation between the function of a court in the traditional English adopted sense and the function and workings of a local court comprised of custodians of tribal law applying customary law, should be made and may be illustrated by reference to the statue of “Justice”, depicted with a blindfold over her eyes, and carrying scales to show that she balances the rights of the litigant parties, irrespective of their position or status, according to “common law”, while the workings of a local court presuppose that knowledge of custom in the members of the court who certainly are not blind, for they are the very living custodian and repository of the law in the customary sense. It is this fundamental difference which causes the difficulty where the applicant seeks to argue the common law principle of res judicata.

4. By that particular statute law, (Local Courts Act, s. 16) the old English principle of res judicata in form espoused by Williams J, has been expressly excluded in this case. Leges posteriors priores contraries abrogant (later laws abrogate prior contrary laws.)

5. By virtue of s.30 of the Local Courts Act, the Chief Justice may make rules governing the procedure and practice of local courts, but cannot by that power affect the substantive law as it relates to custom

6. On the circumstance of the error on the face of the record, the applicant failed to point to a mistake, on its face, there being no dispute that the local court has jurisdiction.

7. The applicant has gone to great pains to lead this court through the evidence of previous proceedings going back to 1991, to show that there is in fact, issue estoppel or res judicata in the light of that earlier evidence. But that is a fact finding exercise and is not for this court. Such a factual basis in relation to the boundary issue raises a plethora of matters which can only fall to be decided by the chiefs and failing them, the local court.

8. In relation to the decision under review, this court was satisfied that the local court was principally concerned with the dispute about the boundaries of the “Kilebebala” portion of land which if not customary land, abuts such land and this High Court cannot interfere.

Cases cited
Duchess of Kingston’s case (1776) (see Smiths leading cases, 13^th ed. (1929) Vol. 2 p. 645)
Jackson –v- Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Anisminic Ltd v Foreign Compensation Commission (1967) 3 W.L.R. 382; (1967) 2 All E. R. 986
Teika -v- Maui (1985/86) S.I.L.R. 91
Sumbe Gandley, (Ct of Appeal 8/97)
R -v- Northumberland Compensation Appeal Tribunal; ex parte Shaw [1951] EWCA Civ 1; (1952) 1 All E.R. 122

Emma Garo of the Public Solicitor, for the applicant.
G. Suri for the respondent.

Motion for writ of certiorari

Brown PJ: This notice of motion seeks orders in the nature of certiorari to quash the decision of the Vella La Vella Local Court in Land Case 5 of 1999 made the 30 January 2004. Leave had already been given to bring the motion for the applicant had earlier satisfied me that, in terms of the Rules, 061 r2, (the applicant, prima facie having standing); i) the claim is neither frivolous, vexatious or hopeless; and ii) the court was satisfied there was an arguable case.

Since the application was served on the other side, the respondent has had the opportunity to answer the claim and of course, the issues have more clearly been illuminated.

The judgment of the Vella La Vella Local Court which the applicant seeks to quash it as follows:

JUDGMENT

This is a claim of boundary on Kilebebela Portion of land. The plaintiff in their oath statement in court, adduced the boundary of Kilebebala portion of land commenced from Oala river where it meets the Sirori river and then follow to the mouth of the Nyanga river, following the coast to where it meets the mouth of Oala river again. Plaintiff said that within this boundary late Silas Lezutuni did subdivide it and shared it to his children. They still developed the land till to date.

Plaintiff also mention when questioned by the court that there were pegs there. When visiting the site we only saw one at the sea side. Plaintiff confirmed during surveying that the actual pegs in the inner land are not there but the area can be identified. The defendant’s version is that the only area directly owned or controlled by Silas Lezutuni’s family is the existing Kilebebala Plantation. The outside area is under the control of Chief Jack Lagobe of Reresare tribe.

After considering evidences in court and during site visit, the Vella La Vella Local Court find that the area from Nyanga river to Oula river have been developed by Silas Lezutuni’s family till today. There is no real identity of boundary in the under land. The court found that the Kelebebaloa portion of land is a land within the Reresare tribe.

Decision

1. The land from Nyanga river to Oula river on the coast to where they have been developed by Silas Lezutuni and his children will still belong to Silas Lezutini’s children. Any virgin land within Nyanga river to Oula river that has not yet been developed or cultivated will still remain controlled by Chief of Reresare, Mr. Jack Lagobe. The family of Silas Lezutuni were still members of Reresare tribe. They have right of use in Reresare tribe land prior to consultation of Chief Jack Lagobe of Reresare tribe.

And also for tribe they must also have to consult Lezutuni’s children, if they want to make any development. From now and onward Gladice and Dalcy were the tribal leader of Silas Lezutuni’s children.

Dated this 30^th day of January 2004

Sign: President

Member

Member

Clerk

When I read the decision I am satisfied that the local court was principally concerned with the dispute about the boundaries of the “Kilebebala” portion of land which if not customary land, abuts such land. Custom relationships between the family of Silas Lezutuni and the Reresare tribe; Jack Lagobe of the Reresare tribe and the children of the late Silas Lezutini were touched on as a consequence..

The applicant says this decision redraws the boundary of the “Kilebebala” land, for that the boundaries of “Kilebebala Plantation” were formally fixed. So far as the customary aspects are concerned, the Vella La Vella Local Court finding in case 1 of 1991 and the subsequent Western Customary Land Appeal Court Case 2 of 1994, decided these aspects affecting the same parties, so that, the applicant argues, the principle of res judicata applies.

Since these earlier case encompassed far more issues affecting customary land; Veala Reresare land, Joinivilu land, Sibiore Reresare land; the respective land-holding groups; their recognized chiefs in custom; representatives in name only; customary taboos affecting landholding and various genealogies, this matter for determination by the local court in land case No. 9 of 1999 only appears to relate to land described as “Kilebebala Plantation” (although its ownership was referred to by the judgment of the earlier court in case No. 1 of 1991 as “Kilebebala Plantation be owned by the late Silas Lezutuni’s children”) but I make no finding on that issue since I do not consider that it be appropriate for me so to do..

May not this Kilebebala Plantation land be defined by “survey plan”?

A question I must ask in this milieu of evidence, statements and assertions masquerading as facts filed by both parties, in this case, is whether this Plantation Land has a land reference as such a plantation (for the survey markers would clearly suggest such) and if so, what title or land holding affects the tenure of any registered owners.

For if rights were acquired by the late Silas Lezutuni to the plantation under the Land and Titles Act (cap 133) then the Act prescribes how and in what manner or estate the land is to be held by the registered owners.

The Act also prescribes, in s.97 that uncertainty or dispute about boundaries, the Registrar (with the assistance of the Surveyor-General) shall on such evidence as the Registrar consider relevant, determine and indicate the position of uncertain or disputed boundaries.

If that “Kilebebala Planatation” land is registered land, (and it may well be, having been purchased or passed to the late Silas Lezutini before memory of these more recent litigants) then the Vella La Vella Local Court decision cannot affect boundaries of such registered land, for such boundaries are fixed by survey plan. A search of such survey plan with the assistance of the land officers in Honiara would quickly show whether the implied suggestion of the applicants is right or not.

But that suggestion, implied in the applicant’s material filed in support, is unsupported by direct evidence by way of Land Parcel number, or other Term or Perpetual Lease details.

The powers of the local court with respect to customary land

Here this land, which boundary is in dispute has been treated as customary land.
The Land and Titles Act (cap 133) s.254 recognizes the exclusive jurisdiction of the local court in that case.

“(1) A Local Court shall...have exclusive jurisdiction...in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than- a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and b) any matter or proceeding involving a determination whether any land is or is not customary land.

(2) a Local Court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act.

No such application has been made by a customary land appeal court although Mr. Suri says an appeal against this particular finding of the local court has been lodged with such appeal tribunal. There is clearly jurisdiction in the local court, and on appeal, the customary land appeal court (for its powers encompass those of the local court) to entertain this original claim relating to boundaries in the absence of direct evidence of boundaries of the plantation land either by survey or by registered title under the Land and Titles Act.

Local court judgment expositive of custom, not a constitutive legal act

The local court “Order”, dealing as it does, with custom is not a constitutive legal act, such as a judgment debt for damages for nuisance or trespass, for the local court is expositive of custom. The court does not find the law, in the sense understood by English “common law” judges, via the legal heritage of centuries of English legal precedent, but enunciates “customary law” found in the oral traditions, practices and customs carried on by particular tribes and societies, where the leaders, chiefs or particular individuals are acknowledged to be the repository and custodian of such knowledge, by which the tribe or society traditionally conduct its affairs. That is the function of the custodians of the tribal law, and strict rules of evidence, as commonly understood in an adopted sense, do not apply. This clear differentiation between the function of a court in the traditional English adopted sense and the function and workings of a local court comprised of custodians of tribal law applying customary law, may be illustrated by reference to the statue of “Justice”, depicted with a blindfold over her eyes, and carrying scales to show that she balances the rights of the litigant parties, irrespective of their position or status, according to “common law”, while the workings of a local court presuppose that knowledge of custom in the members of the court who certainly are not blind, for they are the very living custodians and repository of the law in the customary sense. It is this fundamental difference which does, in my mind, cause the difficulty where the applicant seeks to argue the common law principle of res judicata. This has been obliquely argued by Mr. Suri for the respondent, for he says the application is misconceived, the proper course to adopt is that provided for in the Land and Titles Act, s 256 which provides for appeals from the local court. His argument will be dealt with later.

Where no decision wholly acceptable to the disputing parties has been made by the chiefs, then and only then does the jurisdiction of the local court arise, for such dispute need set out;

(a) the extent to which the decision made by the chiefs is not acceptable; and

(b) the reasons for not accepting the decision (Local Court Act s.12 (3))

But the prerequisite to accession of jurisdiction is “that the parties to the dispute had referred the dispute to the chiefs; and all traditional means of solving the dispute have been exhausted”
(Local Courts Act, s.12 (1) (a) (h)).

Obviously, if the local court decision has not been accepted by a party (and clearly the applicant, here, has not accepted it) the proper course is to pursue the dispute in accordance with the terms of s. 256 of the Land and Titles Act (appeals to and from customary land appeal courts).

Considering then, whether the principle of res judicata applies to the decision of the local court (for that it had allegedly previously decided questions between these parties affecting the same land belonging to them) the applicant sought to show “evidence conclusive between the same parties upon the same matter directly in question in another court”, to use the phraseology of DeGrey CJ in Duchess of Kingston’s case (1776) (see Smiths heading cases, 13^th ed. (1929) Vol. 2 p. 645). This phraseology was used with approval in Jackson –v- Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 460, 461 by Williams J, where he expounded on the principle and said (when dealing with counsels argument on the plea of res judicata):

“...which raises a form of estoppel by res judicata which is often referred to as issue estoppel and which can be pleaded in bar whenever in a court of competent jurisdiction between the same parties or their privies, an issue has been once taken and found. Such an issue is then concluded between the parties taking it and their privies according to the finding thereof so as to estop the parties from again litigating that fact once tried and found: Everest and Strode in the Law of Estoppel, 3^rd ed. (1923), p 52, “Nemo debet bis vexari.”)

This principle of res judicata raises two issues in this case:

(1) Is the Local Court such a court which is bound by strict rules of evidence and procedure that the principle (vide Constitution Schedule 3 – Application of Laws para 2 – adoption of principles and rules of the common law and equity) shall have application?

The Local Courts Act provides, in s.16 that the law to be administered shall be “the law and custom of Islanders prevailing in the area of the jurisdiction of the court, so far as the same has not been modified by any Act.” This clearly, in my view calls into effect and negates any suggestion that the principle should have application here for the provisos to be found in para. 2 (1) (a) and (c) of schedule 3 – Application of Laws, directly leads to the Local Court Act which expressly deals with this possibility of adoption of law, by s. 16. By that particular statute law, the old English principle of res judicata in form espoused by Williams J, above has been expressly excluded in this case. Leges posteriors priores contraries abrogant (later laws abrogate prior contrary laws.)

By virtue of s.30, the Chief Justice may make rules governing the procedure and practice of local courts, but cannot by that power affect the substantive law as it relates to custom. His power to make rules then (and I have been unable to find any practice rules) can only relate to the procedure or the manner in which the particular court conducts its business by way, for instance, of precedence in address, method of recording proceedings etc. To accept then, as the applicant would have me do, and adopt a principle of evidence in the face of the definitive expression in s.16 of the Act would presume such a principle in custom in this particular part of the Solomon Islands. This court cannot presume to know such law and custom in that area, for the chiefs are its arbiters and decide such custom, (which no doubt takes cognizance of changing mores and circumstances) at that time when the dispute arises. Failing acceptance of any decision, the local court is then invested with jurisdiction but this High Court has no part in any fact finding.

2. Does the underlying power of judicial review in the Rules, O.61 T 2 provide the applicants with an avenue of review that would otherwise be closed to them by virtue of the Local Court Act?

Clearly the case which has greatest appeal to the applicant, and which has been applied with success in this court in matters of judicial review, is Anisminic Ltd v Foreign Compensation Commission (1967) 3 W.L.R. 382; (1967) 2 All E. R. 986, where the English Court of Appeal held that an error of law within the jurisdiction of a tribunal, (an error of law in a case which is within its jurisdiction) does not entitle the Court to grant certiorari unless it be an error on the face of the record; but an error as to whether the tribunal has jurisdiction, whether it is an error as to fact or as to law, renders the decision a nullity and a proper subject for certiorari.

Dealing then, with the question whether the local court does or does not have jurisdiction, there can be no dispute that the local court has jurisdiction. The argument of the applicant is that the court has mistaken the law by breaching the principle of res judicata. The applicant does not argue the tribunal does not have jurisdiction in matters affecting custom and land.

On the circumstance of the error on the face of the record, the applicant has failed to point to a mistake, on its face. The applicant is asking me to presume the English principle, res judicata as having currency in the custom of the place, when I venture to suggest the chiefs would be bemused by the idea. The applicant has gone to great pains to lead me through the evidence of previous proceedings going back to 1991, to show that there is in fact, issue estoppel or res judicata in the light of that earlier evidence. But that is a fact finding exercise and is not for this court. Such a factual basis in relation to the boundary issue raises a plethora of matters which can only fall to be decided by the chiefs and failing them, the Local Court.

The applicant in his final submissions by Ms. Garo, relies on 0 61, r 3 for that the appellant appears to concede that the Local Court decision is on appeal to the Customary Land Appeal Tribunal. This Rule is called in aid:

“r. 3 ... and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appealing has lapsed.”

This rule is not relevant, leave already having been granted earlier, regrettably in circumstances where the respondent was not present for had the matter for leave been argued with the assistance of the respondent, these particular issues would have been aired to show the inappropriate nature of this application in the High Court and the costs associated with this hearing may have been avoided.

For the applicant’s reliance on an earlier decision of Chief Justice Woods in Teika -v- Maui (1985/86) S.I.L.R. 91 to base this High Court’s right to interfere with land court findings ignores the very clear ratio decidendi in the more recent Court of Appeal case of Sumbe Gandley, (Ct of Appeal 8/97) where Macpherson AJ, for the Court said:

To the extent that a local court or customary land appeal court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by a local or customary appeal court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary appeal court specifically invested by Parliament with the power to decide it. Pending decision of that dispute in the Local or Customary Land Court, proceedings in the High Court would ordinarily be stayed on appropriate terms.

So it is also, in relation to applications under our Rules, Order 61, for certiorari to bring up and quash orders of the local court, that this High Court should only act in aid of that local court or customary appeal court; not be seen to interfere with its function and entertain argument over facts which may or may not affect boundaries of customary land which must be a matter for that lower tribunal.

The applicants reliance on the authority of the decision in R -v- Northumberland Compensation Appeal Tribunal; ex parte Shaw [1951] EWCA Civ 1; (1952) 1 All E.R. 122 does illuminate the very issue argued here as the principle ground for seeking certiorari, the claim of res judicata. At 133 of the judgment, Morris J says:

“It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for the re hearing of the issue raised in the proceedings. It exists to correct error or law where revealed on the face of an order or decision or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it”.

So to accept that exposition as authoritative of the law in relation to certiorari, the applicant must show:

a) an error of law on the face of the order; or

b) absence of jurisdiction

The applicant has failed to satisfy me, either of error or absence of jurisdiction.

If the land is customary land, owned in accordance with rights flowing through genealogy and reflected in that earlier courts recitation “be owned by the late Silas Lezutini’s children” then the Vella La Vella local court has prima facie jurisdiction to deal with arguments affecting the boundary of such land and that is clear on the face of the record.

Since the earlier decisions appear to have left that issue alone, (for nothing has been shown me that suggest the earlier court judgments particularly deal with the boundary issue, affecting as it would the other customary land areas) its cannot be now argued this later decision should be quashed for that it suffers, on the evidence of res judicata. The principle is not one which has been adopted by the Constitution; Schedule 3 in so far as it affects local or customary land appeal courts and in any event is inappropriate in the circumstances of the Solomon Islands as it cannot be said to be understood to be or form part of custom.

I am not satisfied, therefore that this decision of the Local Court No. 5 of 1999 made on the 30 January 2004 should be quashed.

The application is refused. The motion struck out with costs to the respondent.

BY THE COURT