Maena v Saeni [2015] SBHC 83; HCSI-CC 317 of 2013 (2 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 317 of 2013

BETWEEN:

MOFFAT MAENA and REUBEN KONA SIOFA
Appellants

AND:

SIMON SAENI (JNR), EDDIE KANATOLE and JOHN GEGENI
Respondents

Date of Hearing: 3rd August 2015.
Date of Judgment: 2nd October 2015.

Mr. G. Faaitoa for the Appellants
Mrs M. Bird for the Respondents

JUDGMENT ON APPEAL

Faukona PJ: This is an appeal against the decision of the Malaita Customary Land Appeal Court (MCLAC) delivered on 28th May 2013. An amended notice of appeal sought four (4) orders and four (4) grounds of appeal. In latter course of this proceeding, the first ground was withdrawn from record and was dismissed accordingly. This Court has only three (3) grounds left to consider and draw determination on. The grounds can be paraphrased as follows.

2. The MCLAC erred in law in holding that the principle of res judicata did not apply to the appellants, despite finding that the Appellants and one Shem Agiomea both descended from two sisters who purportedly had rights to or in ulubiu customary land, North Malaita, Malaita Province.

3. The MCLAC erred in law by misdirecting itself into finding that:-

(1) According to Local Court record (Land Case No. 14/99), there is [sic) little to show if it had carefully examined in detail the family tree of the appellant with Shem Agiomea's for it to be able to conclude that the appellant should not be allowed to continue with this case;

(ii) The said Local Court record and judgment is [sic] not clear whether it had considered the Appellants' claim that they are descended from the male line, or the respondents claim that they both descended from two sisters.

4. The MCLAC erred in law in holding or suggesting that the said Local Court ought to have conducted a survey to find out the true owner of ulubiu customary land.

Survey of the land:

5. I will first deal with ground four (4). In its judgment the MCLAC stated in paragraph 12 (b) that to ascertain customary ownership of land, parties must proof their connection to, and that they own the land by showing special features as tambu sites, sacrificial sites and shrines. How could a Local Court effectively determine as to which party is the true owner of ulubiu land without conducting a survey? It is not a contentious issue that the Local Court did not conduct a survey of the land. In fact there was no survey done at all. In such circumstance, does that tantamount or explicitly merit that impinged on the MCLAC to set aside the Local Court decision and ordered a rehearing by differently constituted justices?

6. Conduct of land survey is part of the Court process when hearing a customary land dispute. Practically, physical surveying and site viewing is a critical aspect where by which the Court can proof to itself the truth of customary facts adduced in Court. However, the Court below has the sole discretion to decide whether to conduct a survey or not. Where both parties or either party is insisted on survey the Court must take heed and conduct a survey of the disputed land. Even if the parties or a party insisted, but the Court thinks the boundaries are not in dispute, as well as the properties therein, then the Court by exercising its discretion can refuse to conduct a survey.

7. The question ought to pause in this case is whether the case was actually reopened for a new hearing or not. Let us observe the spirit of the orders for direction in the Principal Magistrates orders of 5th August 1999. Order (1) is the main order which his Worship stated that the Chiefs in the area were to settle the dispute between the parties (same parties in this case), amicably or consider whether the Defendant (current Respondent) and his line have any rights on ulubiu customary land, or whether they are from the same line as Shem Agiomea who previously litigated with the current Appellants.

8. There are three things, in my opinion; the Chiefs were opted to do under the orders. The first is quite clear, it was the second and third which may cause some confusion because of lack of better clarity. In my opinion, the Principle Magistrate at that time of making the orders was optimising whether the Respondents do have rights in ulubiu land, through whom and from what source. This is the crux of this case. If the respondents acquired rights and interests from the same source, and whether equated or unrelated to Mr Agiomea, then the Chiefs had to state with clarity in their determination. This will assist the Magistrate determine the criminal issue of trespass and may be damages.

9. In such circumstance, I do not think a survey is necessary. The issue before the Chief should focus on how rights and interests are acquired and genealogical connection to previous litigants.

Sources from which parties advance their claim:

10. Ground 3 (ii) pleads issues of fact which this Court lacks jurisdiction to entertain. An attempt would surely unveil the whole entire customary narration related to derivation of rights and interests, customary ownership of land, interest on properties, customary social activities on the land and the whole bulk of facts which had been tendered to the lower Courts which a determination to that effect had been made. Appeals to the High Court should premise on points of law and procedure only. Therefore I must dismiss ground 3 (ii) on that basis.

Grounds 2 and 3 (1) (res judicata):

11. The motive in ground 3 (i) is to draw conclusion premises on the principle of res-judicata. It does not actually draw a time line but facts refer to seem to uphold, or favour a determinative conclusion to estop from continuing the proceeding because of the application of the principle. For ease of reference the two points are taken together and amalgamated less than one topical heading, issue estoppel or res judicata.

12. Basic to a number of grounds and submissions was a reference to the previous litigation in Customary Land Appeal Case No. 11 of 1983. Very often common and village people are not well versed with the principle of res judicata. With that back-ground, in Solomon Islands there is however, a distinct reluctance to accept that this doctrine applies to customary land cases. In the case of Talasasa v Paia[1]. His Lordship Daly CJ stated on page 5, paragraph 3 (last sentence)stated;

"It does apply and in appropriate case all Courts must refuse to entertain an action which endeavours to reopen matters already decided by final judgement as between the parties"

13. The Blackstone law Dictionary[2] defines the term res judicata as follow;

1. An issue that has been definitely settled by a judicial decision.

2. An affirmative defence having the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not, raised in an earlier suit.

14. The criteria to apply, which do apply in this case, turn upon the examination of the previous litigations, in particular the parties and the issues arose therein, and relationship to the parties and matters raise in the present litigation. In Solomon Islands land dispute cases usually involve the interest of a tribe of a particular customary land as opposed to the interest of another tribe. Following consideration of authorities, the Courts now acknowledge and uphold that a judgment in respect of customary land is judgment inter parties. As such, for a doctrine of res judicata to operate, the required ingredients remains three fold, as Lord Guest uttered in in the case of Carl-Zeiss-Stifting V Rayner and Keeler Ltd and Others[3], at page 565G;

"The requirement of issue estopple still remain (1) that the same question has been decided (2) that the judicial decision which is said to create the estopple was final, and (3) 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 privities".

15. The same issue was considered and adopted by the Court of Appeal in the case of Odikana V Lagobe[4]. The Court of Appeal thus stated;

"... Given that it is clearly the law in this jurisdiction as set out in earlier decision of this Court, which decision we have no cause to question and about which we have no feeling of unease, the doctrine of res judicata is applicable, and there are no submissions from the appellants that the earlier decision of this Court should be reconsidered..."

16. With the authorities, retrospectively, the Courts are mindful and will decline to entertain a claim that an earlier litigation had decided the matters at present disputed by the parties. In other words the Court of Appeal is crystalline clear that the doctrine or principle of res judicata applies to customary land dispute cases in Solomon Islands. And the Courts must not hear an action which tries to reopen matter already been decided by land Courts which are final judgments between the parties which had been made.

17. The above dictum, which outline the essential ingredients affirm that the doctrine of res judicata would apply in judgments inter parties as oppose to judgment in rem which a Court with competent jurisdiction determine the status of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation[5]. Similarly, the Courts in Talasasa V Paia[6] and Majoria V Jino[7] adopted the principles expounded by Lord Reid. The significant point is that, where those matters are present, the party seeking to raise the issue a new is estopped from doing so and the Court will refuse to determine the matter afresh.

18. Three aspects of the previous proceeding which I will examine succinctly are as follows, (1) the previous preceding itself which give rise to such estoppel (2) privity of matters or cause of action and (3) privity of blood, title or interest.

Previous proceeding: Moffat Maena V Shem Agiomea, 15th August 1981:

19. I now turn to the proceedings said to have given rise to such estoppel. On or about 14th December 1981 the Malaita Local Court (MLC) determined ulubiu customary land dispute between Moffat Maena as plaintiff and Shem Agiomea as defendant in Land Case No. 19/81. The boundary of the land is between mana'abu stream in the east and ngalifasi stream in the west, see P.270 of court book. Since the inception of the dispute, these boundaries had never been in contention. As such it is most essential not to allow litigation to interfere with what is commonly understood to be a non-disputable issue. In Land Case No. 14/99 the maps produced by the parties in that case were the same.

20. The issue before the Local Court in 1981 was ownership of Ulubiu customary land. The plaintiff Mr Maena claimed he was descended from Fiula the son of Alabaita (the source of authority and customary owner of ulubiu land). Mr Agiomea claimed that his right of ownership was inherited through a legendary female. Her name was Finianatabu the daughter of Alobaita (the same source ownership). The MLC decided that Shem Agiomea had the primary rights over ulubiu land and Moffat Maena had the secondary rights.

21. Being aggrieved by the decision Mr Maena then appealed to the Malaita Customary Land Appeal Court (MCLAC). On 29th April 1983 the MCLAC decided that Mr Maena had the primary rights and Mr Agiomea had the secondary rights. Mr Agiomea then appealed to the High Court. On or about 24th November 1983, the High Court dismissed Mr Agimea's appeal, and hence, the MCLAC Court decision on 19th April 1983 prevailed.

22. Upon facts made available before it, the MCLAC adjudged that Moffat Maena being the descendant of a son (Fiula) of Alobaita had primary rights over ulubiu land, whereas Shem Agiomea who descended from a daughter (Finianatabu) of Alobaita had the secondary rights.

23. In addition, the fact that may have convinced and drawn the attention of MCLAC members to decide in the manner they did was because Mr Agiomea himself had stated in his evidence in the Local Court that Alobaita had six daughters and eight sons, page 49 of the court book. There was no explanation or narration by Mr Agiomea of the sons of Alobaita. Mr Agiomea may have had his own reasons not to resurface by narrating the histories about the sons. That in it gave the Court a strong inclination to belief that Maena could have been a descendant of one of the sons. There was neither an adverse option nor any rebuttal evidence to divert the Court to decide otherwise. As a result the MCLAC arrived at a decision which over-turned the decision of the Local Court.

24. Since the MCLAC was the final Court to determine issues of customary law and facts pertaining to land rights or landownership in customary land dispute, it followed that the MCLAC decision on 29th April 1983 was a final judgment. A protective provision is S.256 (3) and (4) of the Land and Titles Act which expressly provides that decision of CLAC shall be final and conclusive and shall not be questioned in any proceedings whatsoever.

25. The fact that the direction by the Principle Magistrate seemed to open afresh the case; the question now being, whether the Respondent in this case has any privity of blood, title or interest to that of Mr Agiomea, and whether the cause of action is different from that the Courts had already decided? This brings us to the next point.

Privity of matter or cause of action:

26. A cause of action or matter in dispute in this case is undoubtedly claimed of ownership of ulubiu customary land. The boundaries of the land are well defined without any contention. I do not intend to feature the entire boundaries again as the Local Court in Land Case No. 14/99 had well described on paragraph 3 of its judgment (see Page 270 of court book)

27. However, the question ought to pause is, has the Respondents' claim or cause of action in this case No. 14/99 the same as land case No. 19/81 as between the Appellant and Mr Shem Agiomea which had been finally determined?

28. There are conflicting arguments as expected from the parties. Interestingly, the Respondents' point of contention can be identified as thus, there was no male survivor of ulubiu tribe except women, that he was descended from a female tribe that was chosen in custom to take up the mode of worship for ulubiu tribe, and that the family tree of Shem Agiomea and the Respondents are not identical. I will deal with the issue of family tree later under the heading of privity of blood title or interest.

29. The central point of focus in this case is Alobaita, who according to evidence, the supreme owner and custodian of ulubiu customary land. He might have his own tribe and genealogy before him. Whatever historical epics, social narrations and prayer in ulubiu land are premised on Alobaita. Alobaita was the beginning of a new derivations acknowledged by his children. The question whether he had no male child or a mixture of six daughters and one son was an issue, which had been raised in the Local Court in case No. 19/1981. Ultimately, inheritance of rights to ownership of customary land premise on the patrilineal system adopted, adored, and valued by people of the northern region of Malaita Province. This system takes precedent over the matrilineal system. Should there be no male to continue the linage; right of ownership must therefore be swayed to the female lineage.

30. In circumstances where only the females survive, in my opinion, they have equal rights to their father's land and properties.

31. In the current case the Respondents claim that the Appellants together with themselves were born of daughters of Alobaita, an assertion denied by the Appellants, who attested that they were born from a son of Alobaita. This issue had already been raised in the previous Local Court and the customary land Appeal Court. The Malaita Customary Land Appeal Court accepted the version submitted by the Appellants and decided in favour of them. The Respondents appealed that determination but was dismissed by the High Court.

32. Apparently, the MCLAC could have noted a convincing fact affirmed by Mr Agiomea in his evidence adduced in the Local Court, that Alobaita had six daughters and eight sons. There was no narration or explanation or cross examination about the eight sons, their whereabouts, their existence, their genealogies, their social and cultural activities and adaptation and etc. This evidence gave no exception to the MCLAC to determine in a manner it had, and later affirmed by the High Court.

33. The only new evidence adduced by the current Respondents is that Tekwelethau, one of the daughters of Alobaita was chosen in custom to take the mode of worship. In an appropriate language in the north Malaita concept, her descendant was appointed and anointed to take up the mode of worship or prayer in terms of priesthood or a fataabu. The question to ask is, is a fata'abu who took up the mode of worship, made him superior in status and right of ownership to land than her other sisters? The simple answer is no. There are certain reasons that support my reasoning. One that in any tribe in the northern region of Malaita Province, there ought to be a fata'abu (priest), a Chief (leading figure) and a ramo (a warrior of the tribe). These responsibilities do not convey superior rights of ownership to a priest, chief or warrior separately. They are all members and belong to the same and one tribe and they equally own the land of their fathers.

34. In this case, the previous Courts recognized and accepted that there was a male survivor from whom the Appellants descended from. Therefore, rights of ownership acquired through inheritance proceeded through patrilineal system which is a prevalent tradition in North Malaita. There is no need to feature and emphasize that point again. It was already determined.

35. So, does the point of taking a mode of prayer or worship tantamount to a different cause of action from the 1981 case? Here we have a context where the children of Alobaita acquired rights from one source alone that is from Alobaita himself. The Court had determined and accepted there was one son. The Respondents still deny in this Court. That there was no son at all. Would that mean the Respondents who descended from a women blessed with mode of worship had a higher right than her sister which Mr Agiomea descended from? I have stated clearly in paragraph 29 above the status and rights of women descendants. Being given the responsibility of a priest, chief or warrior does not qualify you to possess a special right superior than your other sisters. As sisters, you have equal rights. With the present and existence of one son the patrilineal system adaptation must prevail. And the MCLAC in 1983 had determined it all. So the privity of matter or cause of action in this case is the same as 1981 case.

Identity of parties, privity of blood, title and interest:

36. The question to ask is has the Respondents in this case privies of parties, privity of blood or has the same interest as Mr Agiomea as in 1981 proceedings. The Respondents' contention is that they are descendants of one sister and Mr Agiomea was the descendant of another sister. Both sisters were the daughters of Alobaita. Evidence has revealed that both sisters claim rights of ownership from one and only sources, Mr Alobaita. The only difference is that the Respondents female ancestor was given the mode of worship. Would that qualify her descendants a better right of ownership than her sister? I have decided that issue and the status and rights of the sisters earlier in this judgment.

37. The previous Courts also accepted the evidence that Alobaita had one son. Therefore his rights of ownership were of primary. That cannot be changed now. It was a final judgment by the Court.

38. The fact that both female ancestors of the current Respondents and Mr Agiomea are sisters and acquired rights from the same source, make them privity of blood and has the same interest and title. Being blessed with the mode of worship does not change the sisters' right of ownership. A priest, a chief and a warrior are part and partial of tribal existence and set up, acceptable in North Malaita. Without any of those special responsibilities present, you have a tribe without a second limb and cannot function to its fullest, leaving it susceptible to suppression and risk. Therefore, in my view, the sisters would have the same secondary rights.

39. I noted as well that John Kwanairara was a witness for Mr Agiomea in the 1981 case. By sworn statement of Simon Saeni (J), one of the Respondents, in his own genealogy stated that John Kwanairara was his grandfather. In this case he was allowed to reopen the case again. Is that not a privity of blood with the same interest? I have no doubt that it is.

40. Another issue raised by Counsel for the respondents is in relation to the family tree of the Respondents and Shem Agiomea was not properly examined in detail. I think it is not necessary at all. There is clear evidence that the Respondents and Agiomea descended from two sisters who acquire equal rights from their father, Alobaita. Despite one was chosen to take up the mode of worship, did not change their rights of ownership of ulubiu land. Those women will eventually marry to other tribes and their children will acquire full rights and interest from their father's tribe. This is what North Malaitans adopted as a patrilineal linage of the male line. In this case, the previous Court accepted in their final Judgment that Alobaita had a son whom the Appellants descended from. From hence onward until the Respondents, the descendants of the two sisters were by tradition were of different tribes, tribes of their fathers whom they acquired full and primary rights. If Mr Agiomea is from uala tribe, that is the tribe of his father, no one can question. What about the Respondents, which tribe are they from? It must be from their father's tribe as well. It was the female ancestors who were originated from ulubiu land that permit them to be part of ulubiu land but full and primary rights are left for the male descendants. For those reasons it is not justifiable to allow the family trees of the Respondents and Mr Agiomea to be examined. In doing so is allowing the case to be referred back to the Chiefs and Local Court which had jurisdiction to examine the family tress.

41. Another issue raised is in terms of the declaration by the Chiefs, Church leaders and tribal members including Isso Kafeau which confirmed no male surviving Alobaita in ulubiu customary land. I have read the document on Page 214 of the court trial book. That document was purely intended to deviate the Court decision of 1981. The evidence of Agiomea that Alobaita had eight sons was a record in Court record book. The MCLAC had accepted the argument that Alobaita had a son and was affirmed by the High Court. No documentary evidence collectively endorsed by the Chiefs and Church leaders will change the Court record, only the Court itself will change and no one else. I therefore reject the declaration made absolutely. It was done on no basis at all.

Summary:

42. From my perception, I thought I have done justice according to the evidence before me. All the parties beginning with Moffat Maena, Shem Agiomea and recently Simon Saeni Jnr and his group dependent on their connection to Alobaita to claim rights to ulubiu customary land. Their source of right of ownership emanated from a sole custodian of ulubiu land, Mr Alobaita. Whether the current Respondents accept or not the MCLAC had decided that Alobaita had a son, Fiula, hence he was given the primary rights of ownership. That was affirmed by the High Court. Those determinations were final judgment. In this case the Respondents claim to have descended from another daughter of Alobaita, one named Tekwelethau. The question to ask is has the Respondents claim different from that of Mr Agiomea? The answer is no.

41. The cause of action in this case is the same as 1981 case of which the Court had finally determined the ownership of ulubiu customary land. And the Respondents in this case are identified as having privity of blood to Mr. Agiomea and have the same interest.

42. Therefore, I must allow the appeal and uphold the principle of res judicata or issue estoppel applies in this case.

Orders:

1. That Mr Reuben Kona Siofa'a is joined as party to this case in place of his deceased father Felix Siofa who was named in the amended notice of appeal filed on 28th August 2013.

2. This Court therefore orders that the decisions of Malaita Customary Land Appeal Court of 28th may 2013 in Land Appeal Case No. 8 of 2007 be quashed, on the ground it being res judicata..

3. The Respondents to pay the Appellants costs on standard basis.

The Court.

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^[1] (1980) – 1981 SI LR 93 (13 October 1980)
^[2] 8^th Edition
^[3] (1966) 2 All ER 536.
^[4] (2006) HCSI-CC No.142 of 2006 (3 October 2008)
^[5] Halsbury Laws 4^th Edition Vol.16, para 1522.
^[6] (1997) SBCA 20; CA-CAC 36 of 2006 (1 November 2007)
^[7]( 2007) SBCA 20; CA – CAC 36 of 2006 (1November 2007)