Poe v Vota [2011] SBHC 127; HCSI-CC 537 of 2004 (21 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 537 of 2004

BETWEEN

JOHN POE
Claimant

And

REUBEN VOTA
(Representing Nekama Tribe)
Defendant

Mr D Hou for the Claimant
Mr Iroga for the Defendant

Date of Hearing: 14th October 2011
Date of Judgment: 21st October 2011

Decision on preliminary issue

1. This is a hearing about a preliminary issue of res judicata. The claim involves land on Guadalcanal. Orders are sought against the Defendant for possession of the land and other related orders. The land is said to be called Kema land. The Claimant relies on a decision of the Local Court.

2. According to the Claimant, Kema land was registered and leased to expatriates in 1920. A map of the registered land is attached as a schedule to the Claim. The land was de-registered and returned to the original customary owners or at least those who originally leased it, in the 1980's. There is a slight dispute about the date of the return, the Defendants says it was in the 1960's. In 1988 there was a case in the Local Court. A copy of the record has been exhibited to a sworn statement of the Claimant filed on 27th July 2011 as JP1.

3. The Claimant is the son of one of those persons to whom the land was returned (named as Mr Poe in the Local Court case). Mr Poe sold the land to his son the Claimant. The 1988 Local Court case was between the Claimant and the late Thomas Begho. Mr Begho was the son of Mr Poe from a different mother. The present Defendant is the brother of Mr Begho and in fact gave evidence in the Local Court case on behalf of Mr Begho. The 1988 case heard evidence about the sale of the land to the Claimant and the judgment of the court was:-

"The Guadalcanal Local Court established that the Kema Land which covers the areas namely, Uni, Lasar, Tenagau, Betiagela, Buaro and Kodo is owned by the Plaintiff John Poe"

The late Mr Begho tried to appeal the decision of the Local Court. The Guadalcanal Customary Land Appeal Court made an order in the following terms:-

"This case having been called on for hearing on 20th June 1989 and the appellant failing to appear but the respondent appearing, and the appellant having failed to pay any part of the security for costs and typing charges of $230 demanded of him on 10th March 1989 it is HEREBY ORDERED that this appeal be dismissed and the decision of the Guadalcanal Local Court in case No. 8/88 is confirmed."

4. The Defendant in this case says that res judicata does not apply for two main reasons. First, the manner in which the dispute was referred directly to the Local Court was contrary to the provisions of Local Courts Act; and secondly the, "process and the manner in which the dispute came before the CLAC (Guadalcanal) was not proper in law and failed to comply with the rules of natural justice". As to the first point, this was never put to the Local Court, nor indeed to the CLAC. The case was defended on the basis the sale had never taken place because there was no proof of the sale. This was repeated in the appeal to the CLAC. As to the second point, the assertion is the, "relevant CLAC papers were never brought to the attention of the Defendant's party" but no evidence or reason is put forward for that assertion. In an amended defence (which is date stamped 6/10/10) the suggestion is no appeal was filed because advice was received that the appeal period had lapsed. There is no suggestion that an appeal was taken any further either by reference to the Clerk to the CLAC or to the High Court.

5. There is no merit in the arguments raised by the Defendant to show why res judicata should not apply. The Defendant is clearly bound by the decision of the Local Court in case No. 8/88. It is far too late for him to try and come to the High Court and defend a claim based on the final decision of the Local Court. There is no explanation why no action was taken by the Defendant in the 15 years between the decision of the CLAC and the service of the original writ in this matter in 2005. Whilst it could be understood why nothing was done in the late 1990's early 2000's there is no reason put forward for the delay during any other period. The Defendant simply cannot now come to this court some 20 years on to, in effect, appeal the 1988 decision.

6. With regard to the preliminary question now before this court, the answer must be the decision of the Local Court binds the Defendant (and his line) and accordingly the Claimant is entitled to rely on it in this case to establish his ownership of Kema land which covers the areas Uni, Lasar, Tenagau, Betiagela, Buaro and Kodo. Whether this disposes of the case is another matter.

Chetwynd J