Agi v Kwaebeu [2011] SBHC 191; HCSI-LAC 438 of 2007 (3 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Land Appeal Case No. 438 of 2007

BETWEEN:

JIMMY RUBEA AGI
Appellant

And:

TIMOTHY KWAEBEU
(Representing Busuta and Fouka Tribe)
First Respondent

And:

SUTI LENGA
(Representing descendants of Riimae)
Second Respondent

Mr Levi for Appellant
Mr Nori for Respondents

Date of Hearing: 5th July 2011
Date of Judgment: 3rd August 2011

Judgment

1. This is an appeal from the Malaita Customary Land Appeal Court ("MCLAC") decision which was handed down on 14th May 2007 in case No. 5 of 1999. The appeal to MCLAC had been filed sometime in1999. The appeal was from a decision of the Malaita Local Court which sat on 3rd May 1999 and gave its decision on 27th May 1999. These facts are mentioned just to indicate this is not a new case. It is not intended to be a criticism of the, MCLAC; there are many reasons why it was unable to hear the appeal for nearly 8 years.

2. A properly constituted appeal against the MCLAC judgment was not filed in the High Court until February 2008. The reasons why were explained in an application for leave to file the appeal out of time. They need not be further mentioned here. Suffice it to say, leave was granted and the notice of appeal filed. Unfortunately nothing was done by the parties to the appeal and the Registrar of the High Court struck it out in October 2010. An application then came before the court to re-instate the appeal. The application was granted in March 2011 and the appeal was heard on 5th July 2011.

3. The appeal is based on res judicata. The notice of appeal says that the issues between the parties had been dealt with in an earlier Local Court Case, No 4/66 dated 23^rd March 1966. (It is possible that decision was not handed down until 17th May 1966 when it was signed by the President.) The Malaita Local Court found in favour of John Agi, the Appellant's father. The other party in the 1966 case was Riimae and Maefurungia was a witness for and supporter of Riimae. The respondents in this appeal are said to be their direct descendants. The only real point in issue is whether the 1966 case involved the same land. The land involved is Fouka land, sometimes called Fauka land. Another area of land is variously called Narufa, Narufo or Narufu.

4. It has long been settled in this jurisdiction, the concept of res judicata does not strictly apply to cases involving disputes about customary land. It can and does apply in certain situations. As has been said:

"In the Solomon Islands context it can arise where the same members of a tribe seek to bring successive claims over the same piece of land and against the same persons. Where a member of a tribe suing in his capacity as a representative or on behalf of his tribe loses the case then other members of his same tribe cannot bring another land case against the same persons on behalf of his tribe. The issues raised on his/her tribe have already been determined by a court of law and the defence of res judicata prevents that other member of the same tribe from opening a fresh case on the same issues.^[1]"

In the later case of Kofana v Aute'e^[2] His Lordship said:-

"The doctrine 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:

"In Solomon Islands 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 judgments are then, in my view, judgments 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) an earlier case in which the cause of action or point in dispute was really the same;

(ii) a final determination by a court of that cause of action or point on its merits;

(iii) the raising of 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 decided against him.

In the Court of Appeal this has put more succinctly:

"To make out estoppel per rem judicatam or cause of action estoppel" it is necessary to show that the earlier judgment relied on was a final judgment, and that between the former and the present litigation there is identity of parties and of subject matter or "cause of action"^[3]

5. In order to ascertain the nature of the judgment relied on by the Appellant it is, obviously, necessary to look at it in detail. A handwritten copy of a judgment from 1966 is exhibited to the sworn statement of the Appellant filed on 29th April 2011. The copy comes from the National Archives. No one has suggested the copy is bogus and that it is not what it purports to be, a true copy of the record of the land case from 1966.

6. No one has argued the copy record provided is not a judgment or order of the Malaita Local Court. No one has argued that the judgment or order was appealed or otherwise set aside. In short, no one has argued that it is not a final judgment.

7. The parties to the case were Riimae and Agi. No one has argued that the defendant Agi was not the father of the present Appellant Jimmy Rubae Agi. The First Respondent said, before the Customary Land Appeal Court, he is the son of Maefurungia and accepts he claims through Riimae. No one has argued to the contrary, and I am in any event satisfied, that the parties before the Malaita Local Court in 1999 and the subsequent appeal to the MCLAC, are the same as those in the 1966 Malaita Local Court case.

8. The only issue that remains to be decided is whether the subject matter or cause of action is the same. If it is that is an end to the matter, the 1966 decision will prevail and any subsequent proceedings are likely to be of no effect. The first question is what was the 1966 case about? There seems to be no dispute between the present parties about that question. In his submissions to the MCLAC^[4] the First Respondent said, "The case was heard on 23rd March 1966 between Riimae of Alafe and John Agi of Narufo. The Plaintiff was Mr Riimae, who asked the court to prohibit Mr Agi from working on Alafe land, including Fouka. It was clear then that Mr Riimae was claiming that Fouka as part of Alafe land was given to Maefurungia, his female line." In submissions to this court much of what the Appellant argues is based on the presumption the l966 case was about Narufo land which included Fouka land. There is no real dispute between the parties in this appeal that the 1966 case was about the ownership of Fouka land.

9. What the Respondents argue now is the Appellant cannot say the 1966 case awarded him ownership of Fouka land because the case only determined that his rights extended to Narufo land and land around Fouka, not Fouka itself. This argument has arisen because of the wording of the judgment in 1966. It says;

"Judgment Finding

All the ground of Narufo and round Fouka, must bx xxxxx by John Agi, 2nd xxxxx Laesalo, 3rd Maefurungia. But Riimae you had nothing to xxxxx any piece of land round Fouka and Narufo except Alafe"

It will not go unnoticed that there are some x's in the quotation. They are there because the wording in the copy provided is difficult to decipher or read in places and the copying process has truncated yet other words. Several versions have been put forward to fill in the "x's". The Respondents say the words are "by", "owned" and the fourth word, "have". They do not put forward any suggestion for the third word. The Appellant's suggestions are "be", "owned", "haven" and "have".

10. It has to be accepted that in itself the judgment is unclear. What the Respondents say is this court should embark on an exercise in semantics and dissect the judgment to make sense of it. They say logically the 1966 Local Court could only mean they were deciding that Agi owned the ground of Narufo and the land round Fouka not Fouka itself. By using the phrase "round Fouka" the Local Court must have meant to exclude Fouka. That is not the right approach. The proper approach is to look at the issue or issues the 1966 Local Court were asked to consider, look at their findings and then construe the judgment accordingly.

11. On that approach it is clear that the Local Court was dealing with the ownership of Alafe and Fouka. The claim by Riimae was that Fouka was a part of Alafe. The Local Court, in 1966, decided it was not. As is accepted by the Respondents in this appeal, they found Fouka was part of Narufo. They decided Riimae did not have any interest in Narufo or Fouka "except Alafe". In relation to Narufo and Fouka, they decided the primary owner was John Agi, the secondary owner was Laesalo and the tertiary owner was Maefurungia.

12. The Local Court Justices should have declined to hear the case in 1999. Unfortunately they did not but they did do the next best thing and said, quite correctly, they were bound by the 1966 judgment. The MCLAC should have followed that decision and dismissed the appeal.

13. This appeal is allowed and the decision in MCLAC case No. 5 of 1999 dated 14th May 2007 is quashed or set aside. The decision of the Malaita Local Court in case No. 9 of 1998 dated 27th May 1999, insofar as it conflicts with the decision in case No. 4 of 1966 dated 23rd June 1966 (or 17^th May 1966), is also set aside. To avoid any doubt, the 1966 decision takes precedence. It is not clear whether the 1999 decision follows exactly what was decided in 1966. The 1999 decision says that, "Timothy Kwaebeu and his lines have the secondary rights over Fouka disputed land". If that judgment does not conflict with the 1966 decision that Agi was primary owner, the secondary owner was Laesalo and the tertiary owner was Maefurungia then all well and good. If it does not accurately reflect what was said in 1966, then it is the 1966 decision that must be taken as setting out the true position as to ownership rights over Narufo and Fouka.

13. The Respondents in this appeal shall pay the costs of the Appellant, such costs to be taxed if not agreed.

Chetwynd J.

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^[1] Palmer J Tisa v. Farobo Civil case 254 of 1991; [1992] SBHC 51.
^[2] Kofana & Ors v Aute'e & Ors High Court Land Appeal case 1 of 1998; [1999] SBHC 92
^[3] Majoria v Jino Court of Appeal Civil case 36 of 2006; [2007] SBCA 20
^[4] See document in CLAC record headed Summary of Fouka Land Case No. 9/98 (dated 3/5/99)