Limaniga v Mara [2013] SBHC 136; HCSI-CC 96 of 2008 (4 October 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case: No. 96 of 2008.

BETWEEN:

PETER LIMANIGA
Claimant

AND:

CHRISTIAN MARA (Senior)
First Defendant

AND:

WILLIAM TARAI
Second Defendant.

Hearing Dates: 23rd July, 2013 and 16th September, 2013.
Date of Decision: 4th October, 2013.

Mr D. Marahare for the Claimant
Mr S. Balea for the First Defendant
Mr A. Radclyffe for the Second Defendant.

DECISION ON CLAIM FOR DECLARATORY ORDERS:

Faukona J: On 10th April, 2008 the Claimant filed a claim in category A, seeking three orders.

1. A declaratory order declaring the Claimant is the principal owner of the land between Betitahia in the east and Nikungole in the west and inland to the bottom of the rock and to the sea as shown in a sketch map PL2.

2. That the sale of the above land be declared null and void because the transaction did not comply with Gela custom

3. And any other order deem fit by the Court.

2. The first Defendant admits the claim and admits he was wrong to sell the land, which he did without prior consultation with the real landowner. The sum of $200.00 he received was to allow the Second Defendant cultivate the land but not to transfer ownership of the title to the land.

3. The second Defendant disputes the claims and counter claims for the orders set out in his defence filed on 25th September, 2009. He also relies on the sale transaction done in 1978, which the first Defendant had sold the land to Bobi and Tarai. The sales transaction was endowed by a written agreement which the parties affirmed by their signatures.

4. It is a non-issue that the sale of the land had been done in 1978. However, the Claimant's main litigation stems from the fact that the sale was not done in accordance with Gela custom and was not endorsed and approved by the tribal chiefs and elders. Those certain custom usages were not performed and traditional values not transacted.

5. From the High Court cases CC No. 123 of 1988 and CC No.207 of 1991, it appears that the Court had dealt with the two important composition of the sale. One that the sale for value of $200.00 was valid. Secondly the first Defendant was entitled to sell the land to Bobi and Tarai. His Lordship Palmer J had stated clearly in 1991 case the reasons for his conclusion and said;

"... by 1978 the representative or joint owner of tagasagini land had already died. There was no evidence to show any replacement or successor to Lagi. Accordingly, the land rights vested automatically on Christian Mara. This means he could effect the sale without the necessary signature of anyone else as the sole surviving representative or joint owner of gaubata tribe. The question whether C. Mara made necessary consultation or obtained consent from gaubata tribe is not for this Court to consider. It is sufficient as a sole surviving representative in 1978; he had the right in that capacity to dispose of the land by a sale. Whether there has been breach of customary rights is a matter for C. Mara and the gaubata tribe".

6. His Lordship also quoted from 1980 Gela Local Court decision which states, "... the land was fully paid for $200.00 demanded by the land owners themselves". In my perspective view the question of consultation, approval and endorsement had been answered. The remaining question is a gap left by 1991 High court case; that the first Defendant to sort out with gaubata tribe the issue of customary rights and I would add usages. That has not been resolved until now. The two chiefs hearing had long gone and the issue still remain unresolved.

7. In approaching the issue, it ought to be noted that any sale of customary land must be recognized and specified in terms of its boundaries. In this case, the vendor and purchasers are from Gela and are neighbours. They dwell close to each other in the same land but different parts and perhaps speak the same language. Undoubtedly, they must have acquainted with the land and its boundaries well, in particular when it was well defined and articulated in the written agreement. Their customs and practices cannot be said to be of any ignorance to them. I have no doubt that the parties are well versed with it. If indeed there was no custom usages or traditional values transacted, would that invalidate the sale? The point is that, the parties to the written agreement had chosen that the sale transaction be in a written form with their signatures attached to it. In the law of contract that was a conclusive agreement with all the relevant terms been fulfilled. Such is guided by the law of contract, which has an absolute binding effect on the parties and is enforceable in law. If no form of any customary usages and values transacted then I would draw inference that the parties thought it was not necessary. For thirty years no one complaint. In the Gela Local Court in CC No. 45 of 80 the first Defendant stated under oath that, "..the old people allowed the land to be sold amongst us".

8. From the two Chiefs hearing there was no mention of noncompliance with Gela custom and usages. The first Defendant only admitted he was wrong and did not own the land. The only person who stated that Gela custom was not complied with is Elliot Bata in his sworn statement.

9. Indeed, it is a requirement under the Land and Titles Act S.40 that any sale of customary land must be done according to custom and usages. Perhaps the proper avenue to recognise that if parties intended to be was in the written agreement of sale, nothing was done. Even if it was not entrenched in the agreement parties could have performed in later course of time. It appears the parties had satisfied and concluded $200.00 was the consideration for the sale and sufficient to seal the agreement and so custom and usages not needed. That indeed reflected the wishes of the parties at that time of the sale, hence, concluded the agreement.

The issue of res judicata

10. Mr Marahare argues the principle of res judicata does not apply in this case. He points out that the Claimant was not a party to the previous Local Court and Customary Land Appeal Court cases, which determined the ownership issue. And High Court case CC No. 123 of 1988 did not actually determine the issue of validity of 1978 sale. And High Court case CC No. 207 of 1991 did not consider the question whether or not the first Defendant had made necessary consultation or obtained consent from gaubata tribe.

11. He further submits that on the basis of new evidence in relation to whether the first Defendant had authority to deal with the land in 1978 and the validity and effect of the transactions occurred in 1978.

12. Mr Marahare refers to section 40 of the Land and Titles Act which states that every transaction of or disposition affecting interest in customary land must be done in accordance with current customary usage applicable to the land. At this point Mr Balea joins in to explain that sales of customary land in Gela involve transaction of customary items and values. They are not done in this case.

13. In determining this issue, I reminded myself of the principle of issue estoppel now commonly used in modern times because of its widening application of the doctrine. In the case of Talasasa V Paia and Bisili[1] His Lordship Chief Justice Daly stated on page 5 paragraph 3,

"that in judgments inter parties' for the doctrine to operate there must be (...) earlier case which the cause of action or point in dispute was the same (b) final determination of that cause of actions or point on its merits (c) that the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."

14. Chief Justice Daly had made it clear in that case that the doctrine applies to customary land cases which all Courts must refuse to entertain an action which endeavours to reopen matters already decided by a final judgment. Note the word privies are added. In Solomon Islands context when dealing with customary land we are dealing with the interest of a tribe or clan and their relationship.

15. I turn to the question whether the cause of action or point in the dispute was really the same. In the Gela Local Court the issue was the sale of land for $200.00 by the first Defendant. The Court finally decided that the land was fully paid for $200.00 as demanded by the landowners themselves. That could conclude that the sale by the first Defendant was valid. The two High Court cases had affirmed the same. See paragraph 5 above.

16. On the issue of same party or privies, it appears from the second High Court case in which John Lagi was a party. Though it was a criminal trespass case, the Claimants pursued remedy in a civil nature with exactly the same issues. In this case, the Claimant is John Lagi's real uncle. Both from gaubata vahunabolo clan. I have no doubt the parties are the same, the issues are the same.

17. The claimant in this case comes to Court to litigate that the sale was null and void because it did not comply with Gela custom. It is just another twist or an extension to seek a different result. The issue of validity and effect of the sale and whether the first Defendant had the capacity to dispose of the land had already been dealt with. To declare the sale null and void those two issues has to be considered. They have been raised in the previous High Court cases and decisions had been made to that effect. In my view it is final and the Claimant should not re-raise the same cause of action again.

18. On the issue whether the sale was done according to Gela custom and usages; that I have dealt with in paragraphs 7, 8 and 9, above.

The issue of mistake.

18. It definitely appears that the Counsel for the Claimant thought the two previous High Court cases were made in error or mistake, hence attempt to persuade this court to invoke its inherent jurisdiction to revisit those decisions, and if at all, rectify it. The Counsel makes reference to two case authorities; Mellor v Swire[2] and Dick Mune v Paul Poto[3] (PNG election case). In Mellor case reference is made to noncompliance to practices. The court decided it has jurisdiction to set wrong right. That it has inherent power over its own records and can set right any mistake in them.

19. The problem with the written submissions is that there is nothing advance by the Counsel to verify specific circumstances upon which the court may exercise its inherent jurisdiction in those two cases. As it appears, in my view, there was no mistake or wrong that necessary need intervention. However, I take comfort on Mr Radcliff's submission that verification of own decision can only apply to the question of law where different opinion can be expressed as to a particular law and its applicability, but not to the issue of fact.

20. The question pause is whether or not the sale of the land is valid both in law and custom. Section 40 Land and Titles Act and Section 119 of Evidence Act provided that custom be considered as a prior element in dealing with customary land. But custom practices and usages are questions of facts which need not necessary require another opinion. It ought to be noted that the question of law had well-articulated by Palmer J that Mara was a sole surviving trustee who had power to dispose of the land. Both questions of law and fact had been determined by the two High Court cases. I see no reason for interfering with their decisions, as I do not have any opinion in law, which I would oblige to express. Should there remain any more question of fact related to whether the sale transaction was not endowed by custom and usages that have been subsumed in the written agreement, which concluded the mind of the parties who intended to, create a legal relationship.

21. That should come down to a final conclusion that any transfer of land is valid both in custom and law. I therefore refuse to grant declaratory orders sought by the claimant and grant orders the second Defendant seeks in his counter claim.

COURT ORDERS.

1. Declaratory orders sought in the claim refused.

2. This Court hereby declares that neither the Claimant nor the first Defendant own the land or have any interest in it and the Second Defendant and family are entitled to possession of the land.

3. An injunction order is hereby granted restraining the Claimant, his family, servants or agents from in any way interfering with the Second Defendant's right to possession of the land.

4. Cost is paid to the second Defendant.

THE COURT.

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^[1] 13^th October, 1980.
^[2] (1885) 30 Ch. D.239.
^[3] SC 508 (21 September, 1996).