Palmer v Vunagi [2012] SBHC 53; HCSI-CC 469 of 2009 (18 June 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 469 of 2009

BETWEEN

JOHN PALMER
(Representing Hobrae Tribe)
Claimant

And

JOHNSON VUNAGI and KATHLEEN FRAIDE
and The Estate of HILDA PAGO VAHIA
First Defendants

And

ATTORNEY GENERAL
(Representing Registrar of Titles)
Second Defendant

And

ATTORNEY GENERAL
(Representing Commissioner of Lands)
Third Defendant

Mr Rose for the Claimant
Mr Tigulu for the First Defendant
Ms Folaumoetui for the Second and Third Defendants

Date of Hearing: 25th May 2012
Date of Judgment: 18th June 2012

Ruling on preliminary issue

1. The matter has come before the court for consideration of a preliminary issue. That can be simply stated as involving the question of whether the facts and issues in this case were considered and adjudicated on in Civil Case 343 of 1995.

2. What that case was all about can be easily ascertained from the judgment of Lungole-Awich J dated 6th January 1998 [1]. He says in the opening of his judgment:

"The Case and Cause: The plaintiff, Mr. John Palmer representing Hobrae tribe on Ysabel Island, took out originating summons in which he asked the court to order rectification of entry made by the Registrar of Titles in the register of perpetual estates in respect of land parcel No. 106-002-1 (LP 327). His application was made under s.209 of the Lands and Titles Act, Cap. 93. The section reads:

209. (1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

The reason given by the plaintiff was that there has been, "mistake or fraud" in the facts upon which the Commissioner of Lands made grant of the estate registered. The entry complained about was that showing the owners of the estate in the land to be Johnson Vunagi, Hilda Pago Vahia and Kathleen Fraide, the first defendants. The plaintiff filed one founding affidavit in support of his case, his own affidavit sworn on 7.11.1995."

3. The 1995 case was between John Palmer as representative of the Hobrae Tribe, Plaintiff; Johnson Vunagi, Hilda Pago Vahia and Kathleen Fraide as First Defendants; the Registrar of Titles as Second Defendant and Commissioner of Lands as Third Defendant. They are exactly the same parties as in the present case. The claim in this case is a Category A claim filed on 7th December 2009. It seeks several declarations; one in particular about a will. It has not been established how the will affects the Claimant's claim to rectification of the register or the case in general. In any event it appears the will was written nearly 100 years ago and it is difficult to see what effect the will would have had on the Second and Third Defendants. The main attack in the present case seems to be on the 1977 Local Court case. At paragraph 10 of the statement of the case the Claimant says, "The decision of the Kia Local Court dated 4th June 1977, was fraudulently created". In his affidavit supporting the Originating Summons in 343 of 1995 the present Claimant said at paragraph 6, "I claim there was no decision of a Court concerning this land in 1977 as nobody has produced a proper record of any Court proceedings". This is exactly what he says in his present Claim.

4. The Claimant argues that he did not pursue his allegations of fraud in the 1995 case. The "fraud" was dealt with by His Lordship Lungole-Awich in this way:

"In the affidavit of the plaintiff no attempt was made to aver the animus furandi - the facts alleged to disclose fraud upon which the Commissioner was said to have acted. No attempt was made later on, in the case, to pursue the allegation of fraud. Learned counsel Mr. Radclyffe, for the plaintiff, did not make submission to the court to consider fraud. I have not come across any suggestion of fraud in the whole case. The application for rectification based on fraud is dismissed."

When dealing with the issue of mistake in connection with the case he said:

"The plaintiff however, says that the decision of the Commissioner was based on what the Commissioner believed was the decision of the Local Court in a case in 1977, between Ezekiel Zavani of Taraoa tribe and Ben Bao of the plaintiff's tribe. He says there was no such case or if it was there then the decision was not in favour of the Taraoa tribe, declaring Taraoa tribe to be the customary owners of Dadale land. He attacked exhibit No. C, annexure, a photocopy of the judgment, as unreliable. He contended that the original ought to have been produced."

His Lordship went on to say:

"He stated what the decision of the 1977 case was not, but did not state what it was. The plaintiff did not call anybody such as clerks of court or other court staffs to positively state that there has been no such case in 1977 or what the decision was. The defendants on the other hand filed affidavits from among others, two presiding officials in the Local Court that time. In their affidavits, the officials positively stated that there was a case between Zavani and Ben Bao in 1977, and that they, the witnesses, presided in the case. Further that Zavani of Taraoa tribe won the case, it was decided that the land area belonged to Taraoa tribe, but that Ben Bao could use the land. One of the officials, William Leslie Mike, was cross-examined in court. The cross-examination did not reveal any lie or obvious mistaken facts in his deposition. The other official, Stephen Zaku, was certified too ill to testify. He was in hospital at the time this court heard the case. Counsel for the plaintiff was made aware of that well in time. Learned counsel, Mr. Kama, for the defendants kept the court and counsel for the plaintiff informed about the condition of the witness during court hearing and during adjournments. There was contradiction as to which of the two officials was president during the 1977 case. Having heard the explanation of Mr. Mike, I was satisfied that the difference was a matter of forgetfulness on the part of one of the deponents due to the long time past, some 20 years ago. Both in fact were presidents during different periods."

5. It is perfectly clear that His Lordship fully explored the claim by the Plaintiff in the 1995 case (the Claimant in the present case) that the 1977 Local Court case had never happened or if it did, it did not decide what the First Defendants in this case (and in the 1995 case) say it did. The Claimant in the present case [2] argues he did not proceed in 1995 with the allegation of fraud, he concentrated on mistake and that the 1998 judgment made no determination about fraud.

6. That is clearly at odds with what was said in the judgment in January 1998. As will be seen from the excerpt cited above, His Lordship dismissed the claim based on fraud. He repeated his decision on the fraud later in the judgment;

"The conclusion that I have reached is that the plaintiff has not proved his case that there has been a mistake in the facts about customary ownership of land parcel No. 106-002-1 also known as Dadale, when the Commissioner made its decision to give the land to Taraoa tribe on Ysabel. I have earlier decided that there has been no evidence of fraud. In all the plaintiff has not established a case for rectification of entries in the register of perpetual estates, relating to land parcel No. 106-002-1. His claim is dismissed."

7. The Claimant in the present case also says in submissions he, ..." was taken by surprise when the purported Kia Local Court decision of 1977 was produced for the first time during pleading". He says in his sworn statement filed 3rd April 2012 [3], "I lost Civil case 343 of 1995 on the mistake argument because of the sudden and mysterious appearance of the 1977 decision in 1995 despite our many attempts in the past to obtain a copy of it". In later submissions it is said, ".....the 1st Defendants produced this document alleging that this was the written judgment of the Kia Local Court..." [4]. These, quite frankly, are preposterous arguments to advance. A copy of the decision was attached to his affidavit in support of the originating application in Civil Case 343 of 1995. In other words, he introduced it as evidence. The affidavit was filed on 8th November 1995. Justice Lungole-Awich did not hear the case until March 1997, nearly 18 months later. His opponents were able to produce witnesses, one of whom attended court and was cross examined. "One of the officials, William Leslie Mike, was cross-examined in court. The cross-examination did not reveal any lie or obvious mistaken facts in his deposition. " [5] In his sworn statement he says [6], "Thereafter I took every necessary step available to verify the authenticity and background of the 1977 decision." He goes on in the next paragraph, "In or about March 1998 I enquired with the Central Magistrates' Court.......". That was after Justice Lungole-Awich's judgment and nearly 2 ½ years after he started proceedings.

8. This appears to be a clear case where there is a previous decision between the parties on precisely the same facts as are prayed in aid in later proceedings and where the previous decision contains an unambiguous adjudication on those facts. The Claimant makes no attempt at explaining why the allegation of fraud was not advanced in the 1995 case except to, apparently, say he had no opportunity to investigate. The allegations of fraud he now details in his sworn statement [7] and which are referred to in submissions could all have been dealt with in the cross examination of the witness in the 1995 case. To all intents and purposes they were and His Lordship accepted the explanations given by Mr Mike as to any differences in evidence from the other member of the court who produced affidavit evidence. The other witness was very ill at the time of the 1995 case and did not appear, as is detailed in the judgment. It is unlikely in the extreme those witnesses will be available to give evidence today. During submissions and in response to a question from me, there was a vague allegation of possible negligence by the Counsel representing the Claimant in his 1995 case. Of course the previous Counsel was not served with any of the submissions or sworn statements and was not called to give evidence. It has been said time and time again in this court, if there are to be allegations to be levelled in respect of the conduct of a case by previous legal representatives they are entitled to be heard.

9. Even if I had any doubts about what was decided and why in the 1995 case, and I do not, this is a case where the Claimant should be prevented from litigating this matter further. In submissions it was argued this is not a case covered by the decision in Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100. My judgment in Hwang Shu Fen[8] which dealt with similar arguments was mentioned. It was said in Henderson:

"In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

10. This, in the later English case of Gore Wood [9], was referred to (by Lord Bingham) as, estoppel by res judicata "in a wider sense". In Australia there is a similar concept known as Anshun estoppel [10]. The latter may be more like issue estoppel but as I indicated in Hwang Shu Fen, it is sometimes difficult to distinguish between what has been decided (issue estoppel or res judicata) and what should have been decided. The significance of the difference is that it is generally accepted with the former there is an absolute bar to new litigation whereas res judicata in a wider sense may not lead to the same conclusion. Lord Bingham gave clear guidance in Gore Wood:

"...Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."

11. So, bearing in mind those comments and Lord Bingham's exhortation in Gore Wood not to pursue an approach which is "too mechanical" are these proceedings an abuse of the process of the court ? The answer is yes. Taking into account what is said in paragraphs 7 and 8 above and the fact that it is now some 13 years since Lungole-Awich J's judgment and well over thirty years since the local court case at the heart of this claim it cannot be right to allow the Claimant to pursue this case without any credible reason or explanation for the delay; or some compelling new arguments or facts which were not known to him in the other case. Even if the proverbial excuse of the "ethnic tension" is taken into account (it shouldn't be because the courts functioned throughout the period) we have gaps of ten and twenty years. The Claimant has raised nothing new in these proceedings. All he says in reality is just that he did not pursue the fraud in 1995 but he does not say why.

12. This is a clear case where the Claimant should not be allowed to continue pursuing the Defendants through the courts. It was always a clear case and that should have been obvious to both the Claimant and his counsel. The claim is struck out and the Claimant shall pay the costs of all the defendants, such costs to be assessed on an indemnity basis by the Registrar of the High Court if they are not agreed.

Chetwynd J

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^[1] Palmer v Vunagi [1998] SBHC 3; HC-CC 343 of 1995
^[2] See paragraphs 12 to 16 of the Statement of Case filed 7^th December 2009
^[3] See paragraph 28
^[4] Paragraph 7.12 of written submissions
^[5] See His Lordship’s judgment set out at paragraph 4
^[6] See paragraphs 29 and 30
^[7] Paragraph 15 of his sworn statement filed 3^rd April 2012
^[8] Hwang Shu Fen v. National Bank of Solomon Islands [2011] SBHC 29; HCSI-CC 364 of 2008
^[9] Johnson v. Gore Wood & Co [2001] 1 All ER 481
^[10] Port of Melbourne Authority v. Anshun Pty Ltd 91981) [1981] HCA 45; 147 CLR 589