Koina v Clerk to Local Court (Western) [2013] SBHC 69; HCSI-CC 155 of 2013 (21 June 2013)

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

Civil Case No. 155 of 2013.

BETWEEN:

DAVID KOINA, HAVEA MAJORIA, LEZI
Claimant

TUSI and NELSON SAM

AND:

CLERK TO LOCAL COURT (WESTERN)
First Defendant

AND:

OLIVER BIKOMORO JINO
Second Defendant.

Date of hearing: 17th June, 2013.
Date of Judgment: 21st June, 2013.

Mr D. Marahare for the Claimants.
Mr Muria (Junior) for the First Defendant.
Mrs M. Bird for the Second Defendant.

RULING.

Faukona J: The Claimants in this case seek declaratory and consequential orders as outline in the relief sought. The basis of the claimants claim is premised on the doctrine of estopple by judgment or cause of action estopple.

The law on res judicata:

2. To establish cause of action estopple it is necessary to show that the earlier judgment relied on was a final judgment and that between the former and present litigation there is identity of parties and the subject matter or cause of action.

3. The famous case often refer to by Courts in this jurisdiction is Carl Zeiss Stiftung V Rayer and Keeler Ltd (No. 2) (1967) 1 AC 853 where Lord Reid observe,

"It has always been said there must be privity of blood, title or interest..."

The requirement of identity of parties in the concluded action and the action in which the estopple is raised is satisfied where there is privity in interest.

4. In Gleeson V J. Nippel & Co Ltd (1977) 1 WLR 510; [1977] 3 All ER 54, Sir Robert Megory VC propounded the following test for privity of interest;

"[H] aving due regard to the subject matter of the dispute these must be sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other".

5. In Kofana and others V Lucy Autee and another, Palmer J (as he then was) adopted what Daly CJ said in Talasasa V Paia (1980/81) SI LR 93 in which the following elements of the principle of res judicata was identified.

1. An earlier case in which the cause of action or point in dispute was really the same;

2. A final determination by a Court of that cause of action or point on its merits; and

3. The raising of the same cause 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.

6. The Claimants are relying on a number of Court cases, Chief determinations and the determination by the Western Provincial Executive on 18th September 2002, identifying them as being persons lawfully and entitled to grant timber right over Rodo customary land.

7. The case pleaded involved the very same parties who over the years had litigated with the Claimants over the timber rights and ownership of Rodo land, hence the applicability of the doctrine of res judicata; that the first and third Defendants are therefore being estopped from disputing those decisions, and seek Court to stop due process being abused. And that the first Defendant is restrained from convening the sitting of the Local Court (Western) to hear and re-determine the question of ownership of Rodo customary land which had finally being determined.

8. It is not contended that the parties involved in a number of legal litigations before the chiefs, courts and the Western Provincial Executive. However, no one gives detail as to parties in Chief Ngatu's case, except in claimants submission that the Rodo land belong to Rikana from whom the Claimants descended and claim right of ownership.

9. From many cases outline in the chronology of events by Mr. Marahare, it is my view, the most important cases that may form the basis for consideration on the doctrine of res judicata is as follows (1) Chief Ngatu's decision (2) WPC determination (3) Marovo Council of Chief's decision (4) Court of Appeal decision in Majorie V Jino, Civil Case No. 36 of 2006, and (5) Decision of Customary Land appeal Court (Western ) on 13th January, 2012.

Chief Ngatu's decision 1914:

10. What appears, perhaps the case, was that Chief Ngatu adjudicated as a single sitting justice in 1914 Native Court and decided that Rodo land belongs to Rikana from whom the Claimants claimed right of ownership.
And holding that Luze of whom the Second Defendant descended lost the case. Because it appears to be as legally binding and applied with full force and effect over customary matters, it is often refer to as the final determination that binds the parties. Unfortunately the Court of Appeal in Majoria V Jino, Civil case No. 36 of 2006, describe that decision as having no precise geographical information or description that precisely identifies the land. In the absence of identifying the land to which it refers, this judgment is of limited assistance in the present proceedings.

11. Adjudicating on the issue of customary ownership to customary land does not only involve determining a mere human person in isolation who has the customary right of ownership to the land in question. Other determinant aspect that correlate and affirms ones right of ownership to customary land includes common acknowledge features as physical boundaries which traditionally recognised that demarcated the boundaries of the land. Tambu sites, worshipping and sacrificial places, old village sites, edible fruit trees, totums, skulls and bones, fishing sites, reefs, genealogical table and above all the land must be surveyed if so requested or by direction of the Court.

12. How much of those features and activities actually involved and done by chief Ngatu before arriving at a decision he did. There was probably nothing. To be precise chief Ngatu had never prescribed the boundary of Rodo land covered by his decision. The decision was half baked in itself. Is that a final determination by a Court of that cause of action on its merits as advocated in Talasasa V Paia and Kofana V Lucy Autee. That can't be. Chief Ngatu's decision is not helpful at all.

13. That subsequently paves the way for Marovo Council of Chiefs, the most appropriate forum to commence proceedings to determine the issue of customary ownership of Rodo land between the Claimants and the Second Defendant. It did and the decision was in favour of the claimants. The Marovo Council of Chiefs also identified the boundaries of Rodo land. The second Defendant then referred the matter to the Local Court which is currently pending hearing.

14. What other forums more from the chronology of Courts produce by the claimant's counsel that had the privilege to determine the issue of Rodo land ownership between the parties. This Court and the Court of Appeal cannot be for they lack jurisdiction and not right forums to consider and determine the issue of customary land ownership.

15. The Western Provincial Executive by its determination on 18th September 2002, a copy of which is attached to David Koina's Sworn statement filed on 24th May, 2013, in its capacity identify persons lawfully entitled to grant timber rights on Rodo land. It did not consider and even determine or call upon to be read or adduced any traditional and customary facts and evidence that would enable it to adequately determine succinctly the issue of ownership of Rodo customary land. There was nothing on form 2, nor other material available before this Court to affirm such. The requirement prescribes in paragraph 11 above were not or part of any evidence considered by Western Provincial Executive.

16 This leads on to the appeal which was filed within a month from the date of WPE determination. That appeal was finally heard by the Western Customary land Appeal Court on the 13th January 2012. A copy of such decision was attached as exhibit D-K 7 to David Koina's sworn statement. I have perused and study the decision carefully and concluded that WCLAC did not either consider any issue of ownership of Rodo land. In fact no facts related to right of ownership to customary land was placed before it. The appeal was an appeal from WPE determination, which based on its powers to identify persons lawfully, entitled to grant timber rights. No particular reason for decision was known but one can assume that there could have been a reference to Chief Ngatu's decision. That should be a clear aid in assisting the WPC identified persons to grant timber rights.

17. In the Western CLAC the question of ownership was raised in ground 6 which the CLAC in its answer refer to the case of Majoria V Jino which the Court of Appeal stated in paragraph 38, that decision of Marovo Council of Chiefs was given before the WCLAC made its decision. Can a party to the former decisions go behind it to re-litigate the same question in the WCLAC?

18. At this point the WCLAC is correct. The issue of land ownership had been determined by the MCC of which a reference to the LC is still pending hearing. As such the CLAC cannot decide on it. However, that case authority, together with the decision of MCC and a new evidence of a document of Ngatu's decision in 1914, did assist the CLAC to decide dismissing the entire appeal and upheld the WPE determination.

19. On a single point sought by the second Defendant seeking to refer the matter back to MCC is the only point that touches on the ownership issue. The WCLAC has not determined the land ownership issue at all. Had it been so, adequate customary evidence be read and placed before it. There should be survey of the land and the Court has to see for itself traditional proof before it can determine who has the right of ownership to the land. Without disposition of customary evidence before it, the Court cannot adequately determine the issue of ownership.

The effect of the Court of Appeal Case Majoria V Jino, Civil Appeal 36 of 2006:

20. The above case was determined on 1st November, 2007. The famous paragraph is 39 on pages 20-21, outline what now appears to be the law. Simply put, if there is a local Court decision on the question of customary ownership that is binding on the parties, they are estopped from seeking a different decision in respect of that question under the regime instituted under the Forest Resources and Timber Utilisation Act, or vice versa.

21. In my view, the Court of Appeal is crystalline clear. The issue of customary ownership of the subject land has to be determined. And no determination can be arrived at without considering customary evidence related to the land, customary right of possession of the land and how it was acquired including traditional activities on the land and of course land survey, demarcation of boundaries and genealogies.

22. In this case, the WPE in its determination did not consider at all issues of land ownership. An appeal from its decision to the WCLAC also did not address the issue of customary evidence because nothing was put before it for determination. How would the Court determine the issue of customary land ownership without customary evidence and facts? Determining ownership of customary land cannot be just said or partly done. Customary land to Solomon Islanders is life in its full value; been treasured and adored. To deal with it in litigation process touches the crevices of a human heart. In this context that parties who litigate has to bail out whatever customary evidence in store and lay it before a Court of law or whatever regime legally instituted to make a determination.

23. The Court of Appeal's determination was five years after the appeal to the Western Customary land Appeal Court was lodged. Eleven years after that, the appeal was heard. Apparently, it reflected from the WCLAC decision that the issue of ownership was not addressed at all, if so, in a very limited fashion. The appeal itself did not ground any issue concerning ownership, or which would bring to the attention CLAC that the issue of ownership will be hotly litigated so that evidence as to ownership has to be unveil in full course and not in a pass-by context. Therefore, the effect of the Court of Appeal pronouncement does not have any impact on the CLAC (W)'s decision at all. To this case, that decision is a mere novel.

24. In returning to the elements of res judicata. There is no contention in relation to parties to the previous cases. The significant question is which Court gave the final determination. It can't be Chief Ngatu, his decision is of little assistance to any Court. It remains the only regime that could give final determination is the Marovo Council of Chiefs. That determination has rightfully according to the process been referred to the Local Court, which is yet to be heard. This boils down to the third element; in which Court does the issue of ownership as being the same cause of action raised the same point. In my humble view there is no other Court after Marovo Council of Chiefs determination, neither the Western Provincial Executive nor the WCLAC on 13th January 2012 heard and determine the issue of ownership of Rodo customary land.

25. I therefore must decide that the claim that the Marovo Local Court be restraint from sitting to hear a referral case pending before its jurisdiction as res judicata must fail.

26. I noted and agree that the 1st Defendant's functions have been laid down by the Local Court Act and the power to convene a local court sitting is not on record. That may be true literally, but in practice the Local Court Clerk in conjunction with Local Court officer determine and set dates for convening Local Court sittings.

Orders:

1. That declaratory order sought in order1 is refused and dismissed accordingly.

2. Consequential orders sought in Orders 2 and 3 refused and dismissed and that Marovo Local Court to proceed and hear the referral case pending before it commencing 24th June, 2013.

3. Costs are paid to the Defendants.

The Court.