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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 142 of 2006
JACK LAGOBE AND DALCY TOZAKA
V
DONALD ODIKANA AND DAVID GINA,
1st Defendants
THE ATTORNEY-GENERAL
(Representing Wilson Katovai, Acting President of Western Customary Land Appeal Court
and Leonard Maina, Magistrate Clerk of Western Customary Land Appeal Court)
2nd Defendant
Faukona, J.
Date of Hearing: 3rd October 2008
Date of Judgment/Ruling: 24th October 2008
J. Sullivan & R. Kingmele for the Appellants/Claimants
M. Tagini for one of 1st Respondent/Defendants
N. Tongarutu for another of 1st Respondents/ Defendants
R. Firigeni for 2nd Respondent/ Defendants
JUDGMENT ON APPEAL AND RULING ON APPLICTION FOR JUDICIAL REVIEW
Faukona, J.
Civil Case No. 142 of 2006 is an application for Judicial Review pursuant to rule 15.3.4, and Land Appeal Case No. 8 of 2006 is an appeal against the determination by the Western Customary Land Appeal Court made on 10th October 2005. The two cases are amalgamated pursuant to an order of this court on 20th August 2007. This cause of action is necessary as parties to both cases were the same, and the application and appeal were mounted jointly against the judgment of Western Customary Land Appeal Court (WCLAC).There are seven points of appeal..
The relief sought under the application for Judicial Review is for a quashing order, pursuant to rule 15.3.4, directed to the Second Defendant and to the effect that the Judgment of Western Customary Land Appeal Court made on 10th October 2005 ("the Judgment") in respect of the boundary of Kilebebala Plantation within Reresare Customary Land be removed to the High Court and thereupon be quashed.
If the application for judicial review is successful it will follow that the appeal be allowed and the following orders are then sought-
(1) The appeal be allowed.
(2) It be declared that the family of the late Frank Lezutuni (including the Respondents/First Defendants) have the right to reside on and use the coconut plantation known as the Kilebebala Plantation, limited to the actual area originally planted with coconuts, but they have no personal rights in Reresare Customary Land outside the boundaries of the said plantation.
(3) It be declared and confirmed that Reresare Customary Land, excluding the said plantation, is owned by the Reresare Tribe, the lawful representatives of which are the Appellants/Claimants.
Undisputed Facts
The Background Facts
On 1st July 1994 the Vella La Vella Local Court [VLC] made a determination about the ownership of Reresare Customary Land. The parties to that case were current Appellants/Claimants representing Reresare tribe, and Frank Lezutuni representing Veala Reresare tribe. The court decided in favour of the Appellants/Claimants who were the rightful persons to own Reresare land on behalf of the Reresare tribe. It further held that the Kilebebala Plantation was owned by the family of Silas Lezutuni, the father of Frank Lezutuni.
Frank Lezutuni then appealed to the WCLAC. Subsequently the WCLAC upheld the decision of VLC, and added that for the purposes of development by members of Reresare tribe to consult their tribal land Chief Mr. Lagobe.
On 30th January 2004 the case came before the VLC again to determine the boundary of Kilebebala Plantation. The parties were Gina and Odikana v. Lagobe and Tozaka. The then court held:-
The land from Nganga river to Oula river on the coast to where they have 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 been developed or cultivated will still remain control by Chief of Reresare Mr. Jack Lagobe.
A cross appeal by both parties were made to the WCLAC on the grounds that VLC had erred, and ask the WCLAC to further determine the boundary of Kilebebala plantation again.
On the 10th October 2005 the WCLAC gave judgment defining the boundary of Kilebebala plantation and quash the rest of the VLC decision. Against that decision that the Claimants/Appellants appeal and also file an application for Judicial Review. I will discuss the determination by WCLAC later.
The Law on res judicata
In Majoria v Jino[1] the Court of Appeal stated the principle of res judicata as thus:-
"To make act estoppel per rem judication or "cause of action" estoppel, it is necessary to slow that the earlier judgment relied on was a final judgment, and that between the former and the present litigation there is an identity of parties and subject matter or "cause of action".
Lord Reid’s dictum in Carl Zeiss Stiftung v. Raynor and Theeler Ltd (No. 2)[2] outline the essential ingredients which the doctrine of res judicata would apply in judgment interparty. Also see Gleeson v Wippel and CO LTD; Port of Melbourne v Anshun Proprietary Limited. In Majoria v. Jino[3] the Court of Appeal has approved the statements of essential elements of the principle of res judicata in Talasasa v. Paia[4].
(a) An earlier case in which the cause of action or point in dispute was really the same.
(b) A final determination by a court of that cause of action or point on its merit.
(c) The raising of the same cause of action, or the same point which was distinctly put in issue, by a party who has had the action or point solemnly and with certainly decided against him.
The court of appeal also approved Lord Reid’s dictum that with respect to the identity of the parties there must be of privity of blood, title or interest. If these necessary elements are present then the party seeking to raise the issue a now can be stopped from so doing and the court will refuse to determine the matter afresh.
Reference is made to the following paragraphs of the Majoria case:
Paragraph 38 (part)
"...Where a decision is made by the CLAC as to customary ownership of land as necessary preliminary to determining the disposal of timber rights, that decision is binding on the parties...".
Paragraph 39 (part)
"Consequently, if there is a Local Court decision on the question of customary ownership that is binding on the parties in the conventional sense, they are estopped from seeking a different decision in respect of that question under the regime instituted by the Forest Resources and Timber Utilisation Act".
What the Court was saying is that if a customary court judgment as to landownership given under the Lands and Titles Act, and the Local Court Act, including Chiefs, then the judgment will bind a later CLAC, whether giving a decision on ownership under the Land and Titles Act or on timber rights under the Forest Resources and Timber Utilisation Act, if it can be shown that the latter is covered by res judicata principles. Where a CLAC making a decision on land ownership is bound by an earlier judgment or res judicata, then a fortiori so is the Local Court holding the relevant customary land dispute. The applications of these principles have been adopted in Solomon Islands. See Pitabelama and Others v. Moses Biliki; Veno v. Jino; Gandly Simbe v. East Choiseul Area Council and Others.
To determine a cause of action is estopped it must be shown that the earlier judgment relied on was a final one, and that between the former and the present litigation is an identity of parties and subject matter or cause of action.
Previous Proceedings – Lagobe and Tozaka v. Lezutuni
The above proceeding is said to give rise to such estoppel. I have briefly summarised the relevant part of the decision above. However, in addition Lezutuni asserted that he owned Veala Reresare and separated from Reresare land. The current Appellants/Claimants asserted that there was no such land as Vela Reresare, only one called Reresare land with boundaries clearly defined above. It has held that Veala Reresare was non existence; there was only one Reresare land. On appeal by Lezutuni to WCLAC, the court upheld the decision of the VLC. After the WCLAC determination there was no further appeal to the High Court.
The VLC also stated in its decision that Kilabebala Plantation be owned by the Late Silas Lezutuni’s children. On appeal the WCLAC upheld the VLC decision and add among others things for the purpose of development by members of Reresare tribe to consult their land tribal chief Mr. Lagobe.
It is accepted that the previous VLC and WCLAC determinations that Reresare tribe owns the whole of Reresare land with very clear define boundaries as above. That Veala Reresare was never in existence. Both the Appellants/Claimants are lawfully representative of Reresare tribe. Any development intended to be established on Reresare land must first consult with Lagobe. Also accepted that the Kilebebala Plantation is wholly within Reresare land.
On examining those determinations, it appears that all the customary issues brought before those courts had been finally determined, such as claims of ownership, which the courts finally determine that the Appellants/Claimants own Reresare land with clearly define boundaries, the issue of chieftainship and the Kilebebala Plantation which own by Lezutuni and his children. There was no other issue outstanding for further determination. Therefore the judgments in these prior court proceedings were final.
All over sudden the matter emerged again and came before the VLC (LC 5/99) to determine and define the boundaries of Kilebebala Plantation. The reasons for its re-emission was to open up an avenue for the application for timber rights. However, the VLC made a determination, among other things the boundaries. .
Being aggrieved by that determination both parties lodged a cross appeal to the WCLAC. The Appellants/Claimants particularly urged the WCLAC to determine the physical boundaries of Kilebebala plantation as the VLC failed to determine that issue. On the other hand the first Defendants/Respondents said the VLC failed to determine the boundaries of inner land, and maintaining their claim based on the land sold wrongly by Dido. Eventually the WCLAC decided to quash the entire determination of the VLC, and set Kilebebala boundary as thus;
..."from Kilebebala Point along the coast to Nianga river, then along that river to interior at the edge of the foothill and cross to Oula river and down along that river mouth, then along the coast to Kilebebala Point...".
From that determination that the Appellants/Claimants appeal and at the same time file an application for judicial review in this court. It is not disputed that the issue of boundary of Kilebebala Plantation be determined by this court on facts and law presented before it. It is also agreed that after the ruling and judgment that a survey be made to define clearly and precisely the boundary of the plantation to ensure the rights given by the court is with certainty and to resolve the issue once and for all.
Privity of blood, title or interest
The question to ask is, has the first Respondents/Defendants in the recent CLAC, parties to the earlier proceedings or privies of parties to those actions. My simple answer is yes, Mr. Odikana is the real son of Lezutuni who unsuccessfully contested the two earlier proceedings. Mr. Gina was the spokesman and a witness for Odikana in the recent lower courts, and now a party with Odikana in the current proceedings. This is a clear case of privity of blood, title and interest between the present parties and Mr. Lezutuni in the earlier cases.
Privity of matter or cause of action
Has the Appellants/Claimants who rely on estoppel, establish that the 1994 and 1996 cases were cases in which the cause of action or point in dispute were really the same. Mr. Sullivan argued it was. He refers to Gwen Abana’s affidavit filed on 11th August 2006 culminating Lezutuni’s claim of ownership of Veala Reresare. That affidavit was filed in support of the first Respondents/Defendants case in these proceedings. The Affidavit was read in full and it appears to be true. It clearly points out the real case for the first Respondents/Defendants in the lower courts.
The question to ask is the boundary of Kilebebala Plantation raised and argued in the VLC in 1994 and WCLAC in 1996. Upon examination of those proceedings I noted Dalcy Tozaka stated in the VLC that Silas Lezutuni gave 400 pounds, 200 to Qorese and his brother, and another 200 pounds to Daniel and Zitubule. And that was the purchase of the Kilebebala coconut plantation. I am not fully certain whether the payments made by Silas Lezutuni was the part and partial of the Leveleveo agreement which the members of the Reresare tribe recognised and accepted. On the other hand Lezutuni said that the boundary of Kilebebala was marked by the pegs. In fact he was referring to the land sold by Jimmy Dido. In addition Mr. Lezutuni refers to memorandum No. 65/LOS.B/ (1) & 13 addressed to District Commissioner, Western. On the same tone Gladys told the VLC that she pikeka land and not properties. The reasons for that, I would not know, but perhaps for the land to be inherited by the children. Whatever it may be, the VLC finally decided that Lezutuni and children will continue to own Kilebebala Plantation. My interpretation of the VLC decision is that Lezutuni and children will have the plantation and land where the plantation was established.
Are those points in issue or raised again in the WCLAC on 10th October 2005. A short answer to that is yes. The appeal by the current first Respondents /Defendants was summed up by the WCLAC on page 2 paragraph 7 clearly stated that the case for the first Respondents/Defendants is the area sold by Jimmy Dido to the Government. The same claim was raised by Lezutuni and Gladys in the previous proceedings. Really and surely the issue before the WCLAC (CLAC 49/03 and 5/04) was the same as the point in dispute in the previous proceedings. It was clear that the same document produced in previous proceedings was produced again in the WCLACL Therefore the point in dispute are the same, and the first Respondents/Defendants cannot deny the Appellants/Claimants their right of ownership to all that land outside of the physical boundary of the plantation, as it had already been decided by the previous courts. However to put things at rest it was agreed that after this ruling and judgment a survey will be done to finalize the boundaries.
Kilebebala Plantation
The determination by the WCLAC is the subject matter on appeal and an application for judicial review. At the hearing of the appeal by the CLAC, it was confronted with two cross appeals, with two distinctive claims by the parties, to determine.
The case for the Appellants/Claimants was basically the boundary of Kilebebala Plantation which is just around the plantation area, in other words where the coconuts were planted. For the Respondents/Defendants case was summed up concerning an area sold by Jimmy Dido to the Colonial Government for the interest of foreign coconut plantation in 1914 and 1915. The land area is between Oula and Niagnga rivers. Faced with the two extreme claims the WCLAC eventually agreed with the Respondents/Claimants appeal hence define the boundary of Kilebebala plantation to include the whole of entire land that was sold to the Colonial Government in 1914. It would appear that the WCLAC, on arriving at that determination, based on certain documents in relation to the land transactions from 1914 and 1949, and citing section 239 of the Land and Titles and its reason for reliance upon those documents.
The argument on behalf of the Appellants/Claimants is that the boundary determined by the WCLAC was encroached into virgin forest land outside of the physical boundary of the plantation, that is, into Reresare Customary Land which the previous courts had already determined the ownership. Thus the WCLAC erred in determining it again, therefore res judicata. The WCLAC was supposed to determine the physical boundary of the plantation which the previous courts had given to Silas Lezutuni and children, which they had cultivated and where the coconuts were planted. That was supposed to be their land including the plantation. The WCLAC was therefore estopped from entertaining and determining a portion of land which had already been determined and a final judgment was made to that effect.
It was agreed and accepted that the land was sold by Jimmy Dido to the Colonial Government. That the land originally was part of the Reresare tribal land. The Customary Land boundary of that land had never been determined. However the WCLAC referred to schedule which indicated the boundary and the area of 500 acres equivalent to 2.02 square kilometres.
In latter years it was found that the land was sold by a wrong person (Dido), a non member of Reresare tribe which by reason of previous judgments, Reresare land was owned by the Appellants/Claimants on behalf of the Reresare tribe.
There is no dispute that the land sold wrongly was reverted back to customary land and it was received by Silas Lezutuni on behalf, and representing Reresare tribe which own it. The paragraph referred to by WCLAC identifying Silas Lezutuni and family as landowners does not mean the land was personally owned by Silas Lezutuni and his family. In fact it was merely to identify and confirm that Silas Lezutuni a Chief representing Reresare tribe was the true owner and not Dido.
Following the identification of a true owner on behalf of his tribe, the land was reverted back to Reresare tribe. In 1950 according to evidence of Dalcy that Silas Lezutuni gave 400 pounds to the Reresare tribe representative so that he could own and use the plantation with his children. Perhaps at the same time too the Levelevo Agreement was made with the tribe which was recognised and accepted. There can be no doubt the issue related to Kilebebala Plantation was raised in the previous proceedings. The VLC and WCLAC had made a final determination as to that. The same issue was raised and argued in VLC on 30th January 2004, and on cross appeal to the WCLAC.
My version of the previous proceedings final determination is that Lezutuni and the two first Respondents/Defendants as privies, are entitled to Kilebebala Plantation bounded by a physical boundary around the plantation. All the land outside the physical boundary of the Kilebebala Plantation belongs to Reresare tribe owned on behalf of the tribe by both Appellants/Claimants.
Noted from the submission on behalf of Gina that Dalcy had agreed to the boundary described as Lezutuni’s land upon which the plantation was established. The Counsel refers to the record of WCLAC. That record was not made available to the Court, and the party making that submission has a duty to provide at least a page to the Court. There was none.
In my finding as I have mentioned in this judgment/ruling that the Respondents/Defendants in this case are directly related to Lezutuni as father and their claim would always follow the father. The issue concerning Kilebebala Plantation and the purported boundary was raised by Lezutuni in previous proceedings. The claim by first Respondents/Defendants contain the same issues concerning the land sold by Dido which had already been raised in the previous proceedings. The same documents were presented. Those issues had been finally decided by the previous proceedings. Therefore the current first Respondents/Defendants are bound by the determination of the previous proceedings, and. the WCLAC also bound by those previous proceedings.
I find that the WCLAC erred in:-
(1) Not considering the determination of the previous proceedings in particular related to Kilebebala Plantation of which a final determination was made by those courts, that Silas Lezutuni and children only own the physical plantation, purchased by him and later Pikeka by Gladys.
(2) Not considering the fact that the land sold by Dido called Niagga was Reresare Customary Land and reverted back to Reresare Customary Land of which the Appellants/Claimants who own Reresare land on behalf of Reresare tribe.
(3) Considering that Kilebebala land was never been a separate land from Reresare land, with a separate boundary, which in fact was within Reresare land. The WCLAC would have realised if considered properly
- (a) that the case for first Respondents/Defendants is the same as Lezutuni’s in the previous proceedings concerning the Kilebebala Plantation of which Judgment had been made to that effect.
- (b) that it would be irrelevant to consider the documents it rely on, as the land sold by Dido had been reverted back to customary land owners, in this case the Appellants/Claimants by virtue of previous court decisions.
- (c) that it would have been necessary to make a survey to ascertain the boundary of the plantation if the duty vested on it was to determine the boundary of the plantation
Having said all that, I concluded that the application for judicial review succeeds, and follow to that the appeal must be allowed as well.
Orders
THE COURT
[1] [2007] Unreported CA 36/06.
[2] [1967] 1 AC 853 909-910.
[3] Ibid.
[4] [1997-98] SILR 93.
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