Daurara v Kwasite'e [2015] SBHC 82; HCSI-CC 184 of 2008 (2 October 2015)

HIGH COURT OF SOLOMN ISLANDS
(Mwanesalua, J.)

Civil Case No. 184 of 2008

BETWEEN:

KWASI DAURARA (Representing himself and Members of his Galisu'u Tribe)
Claimant

AND:

CORNELIUS KWASITE'E (Represent himself and members of the Sinoro Tribe)
Defendant

Date of Ruling: 2 October 2015

Mr. D. Marahare for the Claimant
MR. D. Hou for the Defendant

RULING

1. This is the Ruling on the following preliminary questions agreed to by both parties to this case through their respective counsels dated 6 August 2012 for determination by this court. The questions are:
   
   1. Can the Claimant rely on the principles of res judicata in so far as Local Court case no. 3 of 1995; Customary Land Appeal Court No. 11 of 1985; and Local Court Land Case No. 7 of 1991 are concerned?
      
   2. If the answer to 1 above is in the affirmation, then does the right of ownership and use of the Land in custom possessed by the Claimant ranks over above that of the Defendant?
      
   3. In the circumstances, a matter that involves the question of custom that do not fall within the jurisdiction of the High Court and best dealt with by the appropriate forum?
      

LOCAL COURT No. 3 of 1985

2. This Land case was heard by the Malaita Local in April 1985. The Plaintiffs were Mr. Sulu'usia and Mr. Jimson Siofa'a and the Defendants were Mr. Siruaba'aba and Mr. Maelasi. The issue between the parties was the ownership of Maesi land in custom. Each of the parties gave evidence and called witnesses. After oral evidence was heard, the First Plaintiff and the First Defendant accompany two court justices and the court clerk to survey the land for real evidence, such as the boundary of Maesi Land and old tambu places claimed by the parties on the Land. The Local Court delivered its judgment on 19 April 1985. It was held: (i) that the primary right over Maesi Customary Land was held by Mr. Siruaba'aba; (2) that Mr. Sulu'usia still has possession to whatever he has on the Land but should seek permission from Mr. Siruaba'aba on any new proposed development on the Land.
   
3. An appeal was lodged against the Local Court decision to the Customary Land Appeal Court with the grounds of appeal. The Land was surveyed and submissions made to the customary land court justices. The Customary Land Appeal Court delivered its judgment on 21 November 1985.
   

The Customary Land Appeal Court was constituted by Joseph Kaia President, Enoch Fisu member, Daniel Baetalua member, Adam Kwaeria and Magistrate J. A. Brown. The Court affirmed the decision of the Local Court.

The decision of Local Case No. 3 of 1985 which the Customary Land Court
Affirmed states:

"Court approved and confirm Luluga is belong to Sulu'usia, Jimson and Angaianamae Defendant W.I. That Sulu'usia can make garden use the land Masesi still possess whatever he has in the land. Any new proposed development should seek permission from primary right defendant SURUABA'ABA. Every gifted land to female remains theirs".

"Right of Appeal explained within 90 days from today's date 19th April 1985"

4. The issue before the Local Court is the customary ownership of Maesi Customary Land. The competent court to hear appeal from Local Court decisions on Customary Land is the customary land appeal court. That was done in relation to Maesi Customary Land. The Malaita Customary Land Appeal Court had made its final decision as to the custom ownership of Maesi Customary Land on 21 November 1985. That judgment binds the Claimant and the Defendant as far as the Custom ownership of Maesi Customary Lands is concerned.
   
5. The customary ownership of Maesi Customary Land had been made by the Local Court and affirmed by the Malaita Customary Land Appeal Court. The decision of the Malaita Customary Land Appeal Court is binding on the parties and their privies.
   
6. The Court will now consider the questions set out in paragraph 1 above as follows:
   
   • (1) Can the Claimant rely on the principle of res judicata in so far as the decision of the Local No. 3 of 1995 and the Customary Land Appeal Court No. 11 of 1985 are concerned? This principle will apply to both parties and their privies.
     
   • (2) The Defendant does not have rights of ownership over Maesi Land. His rights are limited to the possessions which he had on the Land at the time the Local Court made its decision in 1995, which was affirmed by the Customary Land Appeal in 1995.
     
   • (3) The appropriate forums for hearing disputes over the ownership of the Land have already made their decisions. The court is not aware of other issues which require the Customary Land Courts to determine.
     
7. The parties are accordingly reminded to abide by the said decisions of Local Court and the Customary Land Appeal Court.
   

THE COURT