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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)
Civil Case No. 277 of 2012
BETWEEN:
RONALD BEI TALASASA (JR), TERRY
SAGEHABU TALASASA, HENRY TALASASA
AND RONALD BEI TALASASA (SNR)
(Representing themselves and members of their
clan or tribe)
Claimant
AND:
MARY BEA, ZIE KERRY, HUKATA BEA,
ETILEVE, AND TUMI BEN.
(Representing themselves and members of their
clan and tribe)
Defendants.
Date of Hearing: 31st August 2015, 1st September 2015 and
25th November 2015, 5th December 2015.
Date of Judgment: 19th February 2016.
Mr N. Laurere for the Claimant
J.S Pitabelama for the Defendants
JUDGMENT
1. A claim in category A was filed by the Claimants on 24th August 2012. The relief sought by the Claimants are six in all including costs. Three are seeking declaratory orders; one is for permanent restraining order, and damages for trespass limited to $50,000.00.
2. Litigation and dispute in this case commenced from an alleged entry by the Defendants into a piece of land known as boroboro land and stated clearing and cutting down trees and plants, including fruit trees that were allowed to thrive and grow, or were planted by the Claimants. The Defendant's entry into the land was on 28th December 2011. The Claimants then intervened and thwarted the Defendants' activities and allow space for discussions, but the Defendants' refused compliance.
3. On 29th December 2011, the Defendants re-entered the same land and continued to clear. Realising a potential breach of the peace was imminent, the Claimants therefore applied for interim orders which were granted by the Magistrate Court on 4h January 2012.
4. On 19th July 2012 an inter-parte hearing was conducted by the Magistrate Court, Gizo. At the end thereof, an order, inter alia, for the parties to take the customary land ownership issue before the Chiefs. In compliance with the interim order, the Defendants referred a land dispute to the Roviana Council of Chiefs to hear and determine the ownership of boroboro customary land which is within a bigger portion of land called loka customary land.
5. At the hearing the Claimants' party did not attend. Despite their absence, the Chiefs decided to proceed and subsequently decided in favour of Chief Daniel Bea, the Defendants' party. Since then there was no reference case referred to the Roviana Local Court until now.
The Claimants' Case:
6. The Claimants instituted this cause of action with full support from the decision of the Native Land Appeal Court Case No. 9 of 1971. The dispute was in respect of left hand kazekuru customary land, situated at South New Georgia, Western Province.
7. On appeal, the Court finally decreed that Edwin Biku and members of this line enjoys land rights secondary to those of the appellant Jacob Zingihite and members of his line. That future cultivation, plantings or buildings by the respondent, Edwin Biku or members of his line shall be subject to permission being granted by the appellant Jacob Zinihite and his line.
8. Boroboro customary land which is the subject of this present action is a small piece of land within left hand kazekuru land covered by the above decision.
9.T he Claimants also said that the Defendants in this action and Edwin Biku (the Respondent in Native Land Appeal Court No. 9 of 1971) are descendants of the two bothers namely Vivisi and Turana respectively. The two brothers had a sister named Vakorige whom the Claimants in this case and Jacob Singihite (Appellant in the Native Land Appeal Court No. 9 of 1971), descended.
10. Therefore, the Defendants are bound by the decision of the Native Land Appeal Court in 1971, hence barred from instituting a same civil action concerning the same land with the same parties in the Chiefs forum. In other words, the cause of action instituted by the Defendants is res judicata.
The Defendants' Case:
11. The Defendants major focus is one of custom issue which the Chiefs and traditional leaders were conferred with powers under the Local Court Act to hear and determine, and not this Court.
12. They claim they are the legitimate members of kazukuru tribe who have ownership and land rights in custom over boroboro portion of land situated within loka customary land, and not the Claimants, nor the parties in Civil Case No. 9 of 1971.
13. The Defendants stand firm on the fact that loka land customary land is a portion of kazukuru land given to Tanavido the daughter of Dete Banara; according to custom practices and norms. From then on the loka land was owned by Tanavido and her descendants down to the Defendants in this case as their clan property. The land has its own demarcated boundaries.
14. The Defendants deny being bound by the decision of Native Land Appeal Court No. 9 of 1971. The reason being that though loka land is located within the kazekuru land, it has its own natural features, boundaries and location and had already been given to Tanavido. The parties to the Native Land Appeal Case No. 9 of 1971 including the Claimants in this case have no right to it; their rights had been ceased on the date it was given. From that level, the chain of blood relationship does not exist in terms of ownership and right. It would be misleading to say that having emerged from the same tribe or clan or clans, the decision of Civil Case No. 9 of 1971 estopped all members of kezekuru tribe from instituting an action concern a particular customary land within the perimeter of kazekuru land. Overally, the Defendants are saying that they are not a party to the 1971 case which covered whole of left hand kazekuru customary land, hence not bound by it.
Issues:
1. Whether the land the subject of the decision of the Native Land Appeal Court Case No 9 of 1971 was confined only to kolonaki land or left hand kazekuru land?
2. Has the portion called boroboro land located within the kazekuru left hand land as described by Native Land Appeal Court Case No. 9/71, owned and used by the Defendants in the past up until now?
3.The issue of res judicata.
4.Whether the Defendants had trespassed into boroboro land on 28th and 29th December 2011 and damaged the properties of the Claimant?
5.Whether the order by the Magistrate, Western, of 19th July 2012 was made ultra vires its jurisdiction and is therefore null and void.
Land subject to 1971 decision.
6.The land that was subject to Native Land Appeal Case No. 9 of 1971 was left hand kazekuru land. The above Court described the boundaries of the land as "the piece of land on an east/west base of approximately one and half miles and extending, rectangular in shape to a corresponding east/west line in the north passing through the position of the ancient village site by the name of bao (some 10 miles to the north).
7.The Defendants perception of the boundaries is that it covered only a portion of left hand kazekuru land. That notion, as it seems, derived out of the interpretation of the words used in the decree of the Native Court Land Appeal Court where it stated, "That in that portion of Kazekuru bounded by the Munda airstrip to the South on east/west base." It was the used of the words "portion" in the decree that paves the way for rationality that that part of the left hand kazekuru land was not included in the decree, hence untouched.
8.An attempt to divert a decree which had finally being determined by the court which is definitive and without ambiguity is futile at this stage. One reason is that the subject matter of the current dispute does not concern the entire land of left hand kazekure. It is irrelevant to pop out an issue that has not even has a tip connected to the current issue. Second reason is that the Counsel for the Defendant has reserved right to interpret any decision of the Court. The word "portion" which appears controversial, which the Counsel persistently dwells on, may mean, by reference, since there is another kazejuru on the right. Hence, by referring to a portion of kazekuru land may mean that the Court in its decree confined to the portion of left hand kazekuru land excluding the right hand kazekuru land. This is supposedly a view taken on the general perception of the entire kazekuru customary land.
9.The fundamental of this case premises on, not that this Court is urged to deal with the whole entire left hand kazekuru land so that boundary is accepted as an issue. That is not the case here, and I disqualify any submissions related to that as out of context. The pivotal issue as unequivocally understood is whether boroboro land is situated with the left hand kazekuru land. This therefore brings us to the next issue.
Is boroboro land within kazekuru left hand land.
10.There is admission by Mary Bea that boroboro land which she and others are claiming is within left hand kazekuru land. There is no dispute about that fact.
11.The matter in issue, which arose out of boroboro land is whether the Defendants own it and used it from the past until now. The Claimants deny it. Hence, it amounts to the fact that the High Court has no jurisdiction to investigate into the customary merit of the Defendants' claim and usages.
12.Attach to the issue in paragraph 11 above, is the issue whether the Defendants are permissible in law to file a case in the Chiefs to hear the dispute as to ownership of boroboro land against the Claimants' party and other party who won the left hand kazekuru land in 1971 case. This issue will be dealt with under the heading res-judicata in later course.
13.Suffice for time being, it is pertinent to ascribe that right of usage though quite different from right of ownership, however links. A tribe or a clan may have right of ownership but has not use the land for generations. In vice-verse, a tribe or a clan may not own the land but have been using it for cultivation, hunting, diving and other traditional and social usages for generations. A common aspect often adore is the combination of both usages and ownership which directly manifested as evidence of ownership. Traditionally, this is important and often pursued to proof right of ownership to land. In any event not with-standing the diversified culture of the people in Solomon Islands which uphold diversified customary land tenure, there are similarities which are common and people do accept it.
14. It is noted, the issue at hand as persisted and repeatedly reiterated, is ownership in custom of boroboro portion of land. Definitely the High Court lacks jurisdiction to entertain. This boils down to the question whether the Defendants can have an audience with the Chiefs? The answer to that question is the main argument advance by the Claimants, that Defendants are barred and estopped from reopening the case because of the operation of the principle of res-judicate, that they are bound by the Native Land Appeal Court Case No. 9 of 1971. Submissions also make reference to the decision which states that the decision binds members of the respective tribes of Mr Singihite and Mr Edwin Biku.
15.The argument by the Defendants is that the issue of ownership and other land rights which were issues in Native Land Appeal Civil Case No. 9 of 1971 could not be applied to loka portion of kazekuru customary land, because land rights and ownership had been transferred to the Defendants by traditional gift. And that ownership rights over that portion did not extend to other lines or members of other lines within the kazekuru main tribe. When land was given to Tanavido in custom, it cut off the rights and entitlement of others as Jacob Zingihite, Edwin Biku and Ronald Bei Talasasa and members of their line.
16.Furthermore, the Defendants contend that loka land is a customary land and has never been litigated and the Claimants should have
referred this land dispute to the Chiefs as the right forum conferred by law to hear and determine the issue of customary land ownership.
17.The Defendant's approach and manner of thinking is misconceived. It is agreed without reservations, that loka land is situated
partly on left hand kazekuru land and part on the right hand kazekuru land. Those two lands had already being subject to Court decisions
which must certainly affect loka customary land. Therefore, there is no automatic action guaranteed for either the Claimants or the
Defendants to file a land dispute issue in the Chiefs tribunal.
18.By adhering to the order by the Magistrates Court, to refer the dispute to the Chiefs, which the Defendant had done, which now encountered with the objection through raising of the principle of res-judicata, is an obstacle which a non-qualified Magistrate, as the one in Gizo had not forseen.
19.As I wish to reiterate again there is no automatic qualification to rush to the Chiefs to get their decision. The hurdle and obstacle of the principle of res-judicata has to be addressed initially as required by the circumstances of this case.
20.This is the major issue here, which the Court must adjudicate at first instance before any legal process can be instituted in the Chiefs tribunal. And so let's venture into examining the principle of res-judicata then.
The principle of res-judicata:
21.It is pertinent to set out the genealogical connections of the parties. The Claimants are saying that the Defendants and Mr E. Biku are the same parties to the Native Land Appeal Case No. 9 of 1971. They were being the descendants of two brothers and a sister. The Claimants and Mr Zingihite are the descendants of Vakorige, whilst the Defendants are the descendants of Vivisi the brother of Vakorige, and Mr E Biku is the descendant of Turana, another brother of Vakorige. According to them it could be fairly concluded that they are all from the same kazekuru tribe.
22.The Defendants have raised two contentious issues. One, that Vakorige is not of kazekuru genealogy but of pazua tribe of Enogae, North New Georgia. Therefore, her descendants, Talasassa and Zingihite have no biological connection to kazekuru. In other words, vakorige was not of kazekuru tribe but married into kazekuru. Secondly, though the giver of loka land to Tanavido is not expressly stated, I could able to deduce from genealogical table "Exh 2" page 268 of Voume 2 of trial book, that it must be given by either Visale or Zagiri of the kazekuru tribe whose originality was from Vivisi.
22.Noted as well that Tanovido was the granddaughter of Berekana whose parents were from kazekuru and tirokiaba tribes. It was through the giving of the land that the beneficiaries enjoyed the right of ownership from Tanavido down the clan to the Defendants.
23.Arguments in relation to tribe and genealogical connection are not the function of this Court to investigate and make conclusions. However, a brief touch on important matters will assist the Court analysing, in particular when it comes to considering the element of, "that between the former and the present litigation there is an identity of parties," one of such element required to proof in the principle of res-judicata.
24.In practical meaning the word res-judicate as define by Black's Law Dictionary [1]stated,
25.In the case of Majoria V Jino[2] the Court of Appeal stated that the principle of res-judicata is as thus;
"To make act estoppel per rem judicatam or "cause of action" estoppel, it is necessary to show that the earlier judgment relied on was a final judgment and that between the former and the present litigation there is an identify of parties and subject matter of "cause of action"
26.Over the years, this principle had developed to certain elevation and Lord Reid's dictum in Carl Zeiss Stiftung v Raynor and Theeler Ltd (No.2)[3] outline the essential ingredients, which the doctrine of res judicata would apply in judgments interparty. The dictum was approved and applied in the Majoria case, and as well as in the case of Talasasa V Paia[4]. The dictum is read as thus,
(a)An earlier case in which the cause of action or point in dispute was really the same.
(b)A final determination by a Court of that cause of action or point on its merits.
(c)The raising of the same cause of action, or the same point which was distinctly put in issue, by a party who has had the action or point solemnly and with certainty decided against him.
27.One of the important aspects which the Court of Appeal in Majoria case approved from Lord Reid's dictum was in respect to the identity of the parties there must be privity of blood, title or interest.
28.If these necessary elements are present, then the party seeking to raise the issue anew can be stopped from doing so and the Court will refuse to determine the matter afresh.
Previous proceeding, Native Land Appeal Court Case N0. 9/71.
29.The above proceeding is said to give rise to such estoppel. It is not a contentious issue that the court had dealt with the substantive issue of ownership and boundaries of left hand kazekuru customary land. A determination to that effect had been made, that is, "the respondent, Edwin Biku and members of his line enjoy land rights secondary to those of the appellant Jacob Zingihite and members of his line."
30.It is with no doubt that the cause of action in relation to ownership of left hand kazekuru land had been finally determined on its merit. The highest Court of the land had made that determination. There was no privilege or legal obligation open to any aggrieved party to lodge an appeal. Hence, the legal processes as conferred by law had come to an end.
Privity of matter or cause of action.
31.The question to pose is, has the cause of action in Native Land Appeal Case No. 9 of 1971, or point in dispute is the same as the cause of action instituted by the Defendants in the Roviana House of Chiefs, are really the same?
32.It has been commonly acknowledged that the Court decision in 1971 covered kolonoki customary land now known as left hand kazekuru land. Its boundaries are well defined in paragraph 6 above.
33.The Defendants in this case do not claim ownership of the whole of left hand kazekuru land as define by the boundaries describe in paragraph 6. In fact they are claiming ownership of boroboro portion of land situated within loka customary land and located within kazekuru left hand land. See map schedule 2, page 264 of the trial book volume 2. The map thus identified loka land with indication of names but the boundaries are not well defined. Indeed it was not described at all, even at trial. The focus of evidence premise on identifying and location of boroboro land within the left hand kazekuru land and perhaps for no other purposes more.
34.With the linkage in linage by the current parties to the previous parties in the 1971 case, it is apparent that the cause of action and its effect upon all parties is predominantly universal which binds them all. The fact that secondary rights were awarded to Mr Biku and clan did not absolutely disqualify him from having any right at all to the land. The same can be equated to the Defendants in the current case who descended from Vivisi, the brother of Turana whom Mr Biku represented in 1971 case. Therefore, one can conclude that the current Claimants and the Defendants are all members of the kazekuru tribe. Naturally, the general application of 1971 case decision conveyed rights to all the members of the kazekuru tribe without exception.
35.To distinguish from the previous cause of action of which a final determination on merit had been done, the cause of action the Defendants wish to pursue is not the same as the previous one, the boundary is not the same, the land as described is not the same and the manner in which the land was traditionally acquired was different. Noted as well, is the fact that the former and the current dispute were between the same tribe. It could have been the best option if the dispute is sorted out on tribal level. That was not the option they favoured, rather prefer a formal Court or Chiefs to determine their rights.
36.Conceivably, the current case is different from the case of Maena & Another V Saeni & Another[5]. In Maena's case the disputing parties were descendants from a brother and a sister descended from a common ancestor (father); may be similar in some circumstances. In the previous proceeding (15th August 1981), the parties were Mr Maena V Shem Agiomea. Mr Agiomea was a descendant from another sister. The claim in the case of Maena V Saeni concerns the whole of ulubiu customary land, with the same boundaries which the Court had determined on 15th August 1981 between Maena V Agiomea. In that case I found the cause of action was the same, the land was the same with all the boundary marks and the parties were originated from one common ancestor.
37.Therefore, the facts in the above case though similar in some ways are different and cannot assist the contentious approach advanced by the Defendants.
Identity of parties, privity of blood, title and interest.
38.It is not an issue that the Defendants are descendants of Vivisi and Edwin Biku was the descendant of Turana; and that Vivisi and Turana were brothers. Their sister was Vakorige whom the Claimants and Jacob Singihite descended from. There is no dispute that there exist privity of blood where title and interest has direct connection between the parties in the previous case and the current ones. Apparently, the dispute is between the same tribe of kazekuru, an internal conflict and litigation as supposed to.
39.However, the claim by the Defendants that though the chain of blood relationship exist, their title and interest is different apart from the general ownership and coverage by the left hand kazekuru land. The defendants agitated that once a portion of land (loka land) was given by kazekuru tribe to an individual of the same tribe, the ownership and rights of the entire tribe ceased on the date the land was given. I agree to that submission, a principle of customary land tenure recognised and adopted in Solomon Islands. In such circumstances, as I perceived, the principle of res judicata do not apply. Furthermore, it is common knowledge that members of the same tribe do not have the same land rights, powers and status depending on customary obligations and merits. In almost all circumstances, some members of the tribe may own specific land which the rest of the members don't. In the event a dispute arose internally the proper course is to make all necessary attempts to resolve it internally. However, where attempts had failed then parties can recourse to utilizing the jurisdiction of the Chiefs to resolve the issue between them. In this case an attempt to resolve the dispute by discussion failed, hence the party's recourse to the Magistrates court.
40.While the dispute over loka land is yet to be determined, any determination as to trespass and damages is premature, that has to be prolonged until such time.
41.The question whether the Magistrate Western's order ultra vires its jurisdiction is a question in law. He may not have jurisdiction for lack of full investigation of the status of the left hand Kazejuru land, whether the principle of res-judicate applies or not. In any event, he ought not to be blamed because he is an unqualified Magistrate with no legal qualification.
42.What appears most convenient is that the claim by the Defendant not only concern loka land located within the left hand kazekuru land, but also a portion extends into right hand kazekuru land. To sort out ownership of loka customary land require proper forum conferred by law to hear customary land dispute, and that forum is the Chiefs Council.
43.I noted on record that the Roviana Chiefs Council had made determination in CC No. 277 of 2012. Despite that determination, the Counsel for the Defendants urge this Court to refer the matter back to the Chiefs for proper hearing with all parties must attend. In addition, since the subject land of dispute has part of it extends into right had kazekuru land, it would be proper that legitimate owners of right hand kazeduru land be a party to the dispute in the Chiefs hearing.
44.With the reasons given, I hereby strike out all the reliefs sought by the Claimants with cost.
Orders:
1.Refuse to grant declaration that the Defendants are bound by the decision of Native Land Appeal Court No. 9 of 1971.
2.Refuse to grant declaration that the issue of customary land ownership over kazekuru left had land is res judicata as between the parties and members of their line.
3.Refuse to grant declaration that the order by the Magistrate Western on 19th July 2012 to refer the dispute to the Chiefs for litigation ultra vires its jurisdiction.
4.Refuse to grant permanent restraining orders against the Defendants, members, or their clan from entering boroboro land, but maintain the "Magistrates order restraining both parties not to enter and carry out any work in the disputed land until further orders of Court.
5.Refuse to grant order as to damages
6.Cost be paid by the Claimants to the Defendants
The Court.
[1] 8th Edition
[2] (2009) Unreported CA 36 of 2006
[3] (1967) 1 AC 853 909 - 910
[4] (1980-1981) SILR 93, 100-1
[5] (2013) HC-SI, CC No. 317 of 2015 (October 2015)
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