Idumae v Babau [2008] SBHC 1; HCSI-CC 371 of 2004 (23 January 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 371 of 2004

SALE IDUMAE

v.

JAMES BABAU

(Palmer CJ.)

Date of Hearing: 20th July 2007
Date of Judgment: 23rd January 2008

Watts and Associates for the Plaintiff
Public Solicitors (W. Faga) for the Defendant

Palmer CJ.:

The Plaintiff, Sale Idumae claims ownership over the Rongoakoa and Bakoabu lands. He relies on the decision of the High Court in Fred Kona v. Jeziel Idu HC-LAC 19/1984, 6th November 1984, ("Land Case 19/84") in which the High Court had dismissed the appeal of Fred Kona and ruled that the Rongoakoa and Bakoabu or Bakwa’abu lands belonged to Jeziel Idu.

The Defendant, James Babau on the other hand also claims ownership over the same lands. He however relies on a recent Chief’s decision between the parties dated 25th July 1994 in which the Chiefs of Aimela had determined that ownership over the said lands as between them vested in him.

The issue in this case is actually quite simple. Is the decision of the High Court in Fred Kona v. Jeziel Idu (ibid) binding on James Babau?

The answer also is quite simple; the answer must be no. The reason for this is as follows. Land Case 19/84, which was relied on by the Plaintiff as grounding his rights over the land was one in which originally Jeziel Idumae ("Jeziel") and Mahlon Toito’ona ("Mahlon") were together as defendants in a land dispute case between them and Fred Kona and his line. Jeziel Idumae is the father of the current plaintiff Sale Idumae, and Mahlon Toito’ona is the father of the current defendant, James Babau.

In the Local Court Case No. 13/83 Jeziel and Mahlon were together as the defendants in that case. When the Local Court made its decision, it awarded judgement in favour of the plaintiff, Fred Kona and his line. The matter was taken on appeal to the Customary Land Appeal Court (Malaita) ("CLACM"), which reversed the decision of the Local Court but somehow only mentioned Mahlon Toito’ona and his people as the owners. When the case went further on appeal to the High Court, the High Court dismissed the appeal of Fred Kona and re-affirmed the decision of the CLACM by saying that the land belonged to Idumae and his line. The confusion it seems is that when the High Court made its decision it did not mention the name of Mahlon Toito’ona. The same confusion was occasioned in the CLACM because although both Mahlon and Jeziel were together, only Mahlon’s name was mentioned. Jeziel’s name was not included.

Whilst that may have been the case, it would be incorrect for one party to rely on such decisions as excluding the other party for in that case they had been together. This is the mistake committed by Sale Idumae in assuming that the decision of the High Court automatically ousted Mahlon and his line from any rights of ownership over the said lands. It is important to appreciate that the issues of dispute and ownership agitated in the Local Court[1], the Customary Land Appeal Court Malaita[2] and the High Court[3], pertained to Fred Kona and his line, as against Jeziel and Mahlon and their lines. It was not between Jeziel Idumae and Mahlon Toito’ona and their lines.

The issues of dispute between these two groups have yet to be resolved through the current customary land dispute resolution process, which is set out in the Local Courts Act and the Land and Titles Act[4]. It is wrong therefore on the part of Sale Idumae to rely on the decision in Land Case 19/84 as vesting ownership of the said lands on him and his line as against James Babau.

In this regard the Defendant is already one step ahead over the Plaintiff for they have run to the Chiefs as required by law and have obtained a judgment in their favour which binds the plaintiff, there being no further litigation to date before the Local Courts.

The claim of the plaintiff therefore must be dismissed with costs.

Orders of the Court:

1. Dismiss claim of the plaintiff.
2. Costs of the defendant to be borne by the plaintiff to be taxed if not agreed.
   

The Court

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^[1] Local Court Case No. 13 of 1983
^[2] CLAC Case No. MD/CLAC/84/C2.
^[3] LAC No. 19 of 1984
^[4] Section 256.