Maefilia v Lulu [2016] SBHC 201; HCSI-CC 503 of 2011 (14 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

CIVIL CASE NO. 503 OF 2011.

IN THE MATTER OF: Babanga Customary Land Boundary Dispute

AND:
IN THE MATTER OF: An appeal against the decision of the Malaita Customary Land Appeal Court dated 18^th October 2011, pursuant to section 256 (3) of the Land and Titles Act (Cap. 133)

BETWEEN:

MALCOLM MAEFILIA and NATHANIEL KONA (Deceased)
Appellants

AND:

ELLISON LULU and ELISHA RAMOTAIFAU (deceased)
Respondents

Mr I. Kako for the Appellants
Mr D. Lidimani for the Respondents

Date of Hearing: 2^nd may 2016, 1^st September 2016

Date of Judgment: 14^th November 2016

JUDGMENT ON APPEAL FROM CLAC

Faukona PJ: This is an appeal from the Malaita Customary Land Appeal Court (MCLAC) decision dated 18^th October 2011.

2.	The decision of the MCLAC can be read in the following terms; that the babanga customary land belongs to the Appellant (Current Respondents), that the boundary of babanga and naki/ferafila customary land is as stated in the Appellant’s (current Respondent) sketch map. Unfortunately, I am unable to locate the Respondents’ map presented to the Customary Land Appeal Court, not even among the record of the Customary Land Appeal Court documents. However, I have taken cognisance of Mr Lidimani’s submissions that there is no new map tendered by the Respondents to the CLAC but the map marked Exhibit (1) was the same map tendered to the Local Court.
3.	In consequence, the Appellants did not agree with the MCLAC decision therefore filed this appeal. The notice of appeal was filed on 22nd December 2011, seeking declaration and consequential orders. The notice also contain seven grounds of appeal. In the latter course of time, as the appeal progressed forward, the Appellants further amended the grounds of appeal, which subsequently substituted the original and grounds under further amended notice of appeal.
4.	In the end the Appellants contended with four grounds of appeal, and they read as thus;
	1.	The MCLAC erred in law and in fact when it confirmed the map of the Respondent which was tendered as Exhibit (1) as the correct boundary when the said map did not indicate any bush road as determined by the Local Court judgment as the boundary of babanga customary land.
	2.	The MCLA erred in law and in fact when it failed to take into due consideration the Land Case NO. 10 of 1968 and Native Land Appeal No. 8 of 1968 in the High Court of Western Pacific between the Appellant’s father and Bethuel Gwaite’e in the case Luluanamae V Gwaite’e in which Mr Mark Irobako, the head of the Respondents’ tribe, as a witness claim ownership with Mr Luluanamae in the following words, “I came to only mentioned three devils, we worship at ferafila, Toloio, Ketegao, Ketewane, here I can run my line. Toloio, Uigao, Koofea ...” In the determination of the ownership and boundary of naki/ferafila customary land claimed by the Plaintiff and late Appellant Mr Ellison Luluanamae who lost the case to the Appellants’ father. Therefore the Respondents are privies to Mr Ellision Luluanamae and are bound by the principle of res-judicata.
	3.	The MCLAC erred in law and in fact when it accepted the map tendered by the Respondents as true when in the Native land case No. 10 of 1968 between Luluanamae v Gwaite’e (Appellants’ father), Mark Irobako the head of the Respondents’ tribe, claimed and mentioned fifteen (15) settlements, whereas the Respondents only claimed about six (6) settlements in the present case and map.
	4.	The MCLAC erred in law and in fact when it accepted the evidence and map tendered by the Respondents as the true boundary given to babanga land owners by rota tribe before the Local Court and MCLAC when there was no evidence of traditional customary facts of ownership of customary land in Malaita as stated in the High Court Case of Buga V Ganifiri (1982) SICR 119.
	Chronology of events:
5.	About 26th June 1968, the West Kwara’ae Native Court heard a land case No. 10 of 1968, between E. Luluanamae V B. Gwaite’e. The customary land that was in issue was naki/ferafila land. The Court awarded the ownership of the land to B Gwaite’e.
6.	Mr E. Luluanamae appealed against the decision to the High Court of Western Pacific in Appeal Case No. 8 of 1968. On 13th November 1968 the High Court in its decree dismissed the appeal. In its decree the High Court of the Western Pacific outlined the boundaries of the land naki/ferafila as thus;

“... a line commencing in the West at the junction of the kwainaolidi stream with orau river, thence up the steam to the valley known as kwaiabu, hence by a spear line running approximately east along the side of a hill to the head of valley known as kilo valley, thence down the line of that valley to orau river and thence West along the bank of Orau river to its junction again with the kwainaolidi steam”

7.	On 20th May 1996, an issue of trespass and compensation was referred to the Chiefs by the Principal Magistrate, Malaita, to determine the boundary between naki/ferafila customary land and babanga customary land.
8.	The Aimela Council of Chiefs heard the matter on 13th July 1996 and made a determination. Until today that determination is not shown in any material produced to this Court. In any event the Respondents then referred the case to the Malaita Local Court in Land case No. 24 of 1997, between the current parties.
9.	The Local court on 31st May 2006, affirmed in its decision the boundary that separated naki/ferafila land and babanga land by adopting the boundary made by the High Court of Western Pacific in paragraph (6) I quote above.
10.	The Respondents then appealed to the MCLAC, which set aside the Local Court decision and confirm the boundaries claimed by the Respondents were correct.
11.	The current Appellant then filed a notice of appeal in this Court on 22nd December 2011 and attached were grounds of appeal. Eventually, further, further amended notice of appeal was filed on 10th September 2015.
	The boundary claims:
12.	In the Principal Magistrates judgment, on 20th May 1996, which he decided lacking jurisdiction. He then mentioned in paragraph (4) that the current Appellants were the owners of naki/ferafila customary land. Undoubtedly, pursuant to the decision of the High Court of the Western Pacific, the current Respondents and their line were owners of babanga customary land. The issue in this proceeding is the boundary that separates both customary lands. The issue of boundary is very significant to ascertain whether there was a trespass done in the initial course of action which the Principle Magistrate was bound to hear.
13.	In confirmation to the Principle Magistrate’s conclusion, Mr John Liu in his oral sworn statement says by referring to the map Exhibit (1), page 41 of the Amended Appeal book/colour extract), the green line that follows kilo valley is the boundary an exponent of the decision in 1996 case. The pink line is the boundary we claim that separates our land babanga from the Appellants’ land ferafila.
14.	Since the boundary contention is either along the pink or green boundary as demarcated in map Exhibit1, page 4 of the amended Court book. That being the issue, this Court is therefore obliged to consider evidence in terms of tambu sites and settlements sites which are significantly existed near or along the area disputed to ascertain which boundary is the true one. By confirming to this approach, will require focus on relevant facts, which are pertinent to the claims of the parties, and avoid facts which add little or non-value to the real issue.
	Grounds of appeal:
15.	I am reminding myself that this is an appeal from CLAC. Pursuant to Section 256 (3) Land and Titles Act any appeal to the High Court must be on the ground that such decision or order is erroneous in point of law (not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.
16.	To interfere with the decision of CLAC the case of Buga V Ganifiri[1] sets out the limits which the court can exercise its powers, it states,
					“This Court has only power to consider points of law excluding points of custom law/or defects in procedure based upon written law. If no reasonable tribunal could reach the findings made by a Customary Land Appeal Court on the evidence before it then it may be that this Court could and should exercise its powers to intervene”.
17.	Ground 1:
	This ground seems to advocate upholding the reasoning that since there was no indication by label, as to the “bush road” to the boundary line demarcated by the Respondent, therefore render the decision of the MCLAC unreasonable.
18.	It is not in contention about the pink and the green boundary line shown in the map (Exhibit (1), page 41. The boundary line in pink is the boundary awarded by the MCLAC to the Respondents. And the boundary in green was awarded to the Appellants in 1968 cases.
19.	I find in the absence of notation or implication of “bush road” on the map does into render the CLAC decision unreasonable or unsafe. I find both boundaries run equally parallel to one another from orou river to otooto stream. The distance between both is subject of contention but unrelated to this ground. In any event, I accept that there was record of description in the Local Court record and affirm upon survey as recorded in paragraph 17 above. Hence the argument about the “bush road” not being written and shown in the boundary line is minimal to constitute an error of law or procedure to require interference by this Court upon CLAC decision.
20.	I noted the principle in Wemea V Gapu[2] which confine to providing clear description of the boundaries to the land. The rational as I could perceive is to provide sufficient boundary marks to convince the Court that the land in issue has been well defined precisely with clarity.
21.	In this case, the Respondents’ boundaries in pink colour, shown in the maps are sufficient enough to identify the boundary they claim. The fact that there was no actual notation of the words on the boundary line, did not amount to MCLAC Committed an error of law that would warrant intervention of this Court. This ground must be dismissed.
	Ground 3:
22.	This ground alleged that the CLAC erred by accepting the evidence concerning six (6) settlements sites shown in the map which is contrary to previous evidence in 1968 case which mentioned fifteen (15) settlements sites.
23.	By urging this Court to consider the existence of the number of settlement sites, or evidence related to truth of facts of the existence of the settlement sites, is an issue in custom which this court lacks jurisdiction to entertain. The lower land Courts are the appropriate forums with powers conferred by the statute to deal with such issue.
24.	However, if I am to determine the value to the contradictory evidence, I would accept the Respondents contention. The fifteen settlements cited in 1968 case was in respect of the whole land of babanga, as oppose to five settlement sites in the current case which the Respondents thus confine their evidence to settlements of custom significance within the disputed land that is between the two boundaries claim by the parties. In effect it is of no significance to dwell on an issue this Court has no jurisdiction to entertain. I must therefore dismiss this ground accordingly.
	Ground 4:
25.	This ground focuses as to why the map tendered by the Respondents in relation to the boundary was accepted where there was no evidence of facts to proof ownership. Again this ground contain question of fact and not law or procedure at all. Question of customary facts related to proof of ownership in custom is an issue that falls outside the jurisdiction of this court. The forum conferred with power to entertain such issue are the lower land Courts. Inconceivably, as it is, that cannot tantamount to error in law. If it is perceivably an error of fact that must be answered by an appropriate forum and not on appeal to this Court. To entertain such issue is usurping the jurisdiction of the lower land Courts and the Chiefs. Suffice to comment that the process in this case has gone or has bypassed that stage where the jurisdiction of the lower Courts can be invoked; that definitely cannot be raised now as the privilege had been foregone.
26.	In the case of Koke V Halanga[3], the Court provided guidance in this instance, it states;
				“The ground is neither a question of law nor that of a procedural error. The Courts below had accepted on the evidence before them the tambu places belonging to the respondents and did not accept that the appellants had shown that they had any in the disputed area. That was a decision they were entitled to make and this Court is not in a positon to disturb unless it is shown that no reasonable tribunal in their position would have reached such conclusion on the evidence before them”.
27.	This firmly establish in the case of Buga V Ganifiri[4] which the Court “has power to consider points of law excluding points of custom law) on defects in procedure based upon written law”. By reason of AG V Maui[5] the High Court has power to deal with matters of customary land circumscribed by Section 256 of the Land and Titles Act, thus limited in application.
28.	In terms of judicial precedence in case law, its effect and application is well define by the Practice Direction NO. 1/81 on 4th June 1981 endorsed by Daly CJ and was affirmed by Kapi J in the case of Estate of Panjuboe[6].
29.	The problem with the law in precedence when dealing with customary land, is that a decision given in a land dispute is a decision inter-party. It applies and affects the parties to the litigation only. However the doctrine of precedence may be flawed precisely, where a party can proof he has no privity, title or interest to the parties who had previously indulged in litigation concerning the same subject land, upon from a decision on merit had been discharged. In my respectable view this issue has been subsumed into the issue of res-judicata which I will deal with in due course.
30.	Meantime, I find the MCLAC had not committed any error of law or procedure in its finding; in fact has exercised its powers and discretion in accepting the evidence and map contain in the local court record. In this instance, this ground must fail as well.
	Ground 2:
31.	This ground premises and align arguments contesting the appropriate application of the principle of res-judicata. The ground states that MCLAC erred in law and fact when it did not take into consideration the decision of 1968 cases which Mr Irobako of the Respondents gave a statement on behalf of Mr Luluanamae (losing party) as privy, thus bound by the principle of res-judicata.
32.	The term res-judicata is define by Blacks Law Dictionary (8th edition) to mean an affirmative defence having the same parties from litigation 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 the first suit.
33	The material further sets out three essential elements to establish, they are;
	1.					An earlier decision on the issue
	2.					A final judgment on merit
	3.					The involvement of the same parties, or parties in privity with the original parties of the same cause of action, which had been decided. The same elements were propounded in the case of Talasasa V Paia[7]
34.	The notion is further emulated in a number of English authorities which are adopted and applied in many cases of the same nature in this jurisdiction. I noted the focus in this ground is based on element (3) which derive its germination from what witness Mr Irobako said in his evidence in the West Kwara’ae Native Court case No. 10 of 1968. Therefore the issue of “parties in privity” is the major tenor of this ground which this Court ought to investigate diligently.
35.	The starting point is the adaptation of English principle of res judicata and privity of blood, title or interest by the case of Majoria V Jino; the relevant part is;
			“... that between the former and the present litigation there is identity of parties and of subject matter or cause of action”, see Carl Zeiss Stiftung V Rayner & Keele Ltd (2), per Lord Reid who observe, “It has always been said there must be privity of blood, title or interest. The requirement of identity of parties between the parties in the concluded action and the action in which the estoppel is raised is satisfied where there is privity in interest”.
36.	The Court continues to quote from Gleeson VJ. Vs J. Wippel & Co Ltd where Sir Robert Magarry VC-6 propounded the test for privity of interest; that is,
		“having due regard to the subject matter of the dispute, there must 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 the proceedings to which the other.”
37.	The law on res-judicate has been endowed with approval by the Courts in this jurisdiction and has become so commonly indulged with, so that it becomes a trite law. I need only to reiterate that the issue of identity of parties comes with the privity of blood, title or interest. And that a party relying on the principle not necessary require proofing all the elements at least one to succeed.
38.	As it would have been noted, this particular common law principle has been adopted and applied in many case authorities in this jurisdiction. For instance Majoria V Jino,[8] Lagobe V Odikana,[9] Lagobe V Premier of Western Province,[10] and many more.
39.	Suffice to say, where the principle is raised and confine to privity of blood, title and or interest, the first and for most things to do, is to indulge in investigating thoroughly whether there is sufficient degree of identification between the parties. In this case as between Mr Luluanamae and the current Respondents.
40.	In any event, I am obliged to apply caution when tasked to investigate the privity relationship either is in blood, title or interest between the parties concern. I also noted that the principle may have slight different application from the common law situation as to the factual circumstances in Solomon Islands. I intend to venture into this issue when I deal with substantive argument on the application of the principle.
	Identity of parties, privity of blood, title or interest:
41.	In the context of Malaita, where land rights decent through male genealogy blood ties transmitted from the source to the current living humans. Whether along the transmission, there are sub-tribes or even sub-clans branch out, so long as it is within the male genealogy, all are bound by one blood tie from the source. Meaning, the source being the prime and supreme landlord, with all the rights of ownership, had spread his wings through his off -springs by blood and who subsequently acquired rights from the source. Sub tribes may branch out for generations and may perhaps call themselves different names, yet they connect to the source by blood.
42.	If the source had own a customary land, his off-springs through male linage may branch out far and wide, but still has equal rights to the land through that one source, - see Maena & Siofa V Saeni & Others.[11]
43.	This cultural heritage can be distinguished by adoring certain overwhelming features as one source, one tribe (though branch out) same sacrificial sites, sacrifices to same ancestors (devils) by same blood, one genealogy, one prayer rituals or mode of prayer, same tabu sites and various living sites with of course many properties. When I refer to “other determinant aspects” in Koina V clerk to Local Court[12] that is exactly what I mean as acceptable features that will define rights of ownership.
44.	In this case the Appellants were abscessed by the standing and the evidence given by Mr Irobako as a witness in support of Mr Luluanamae in 1968 Native Court Case.
45.	To appreciate my perceived narratives, it would be of best interest to acknowledge that the claim by Mr Luluanamae in 1968 was the ownership of ferafila customary land. The extend of the boundary, according to the claim, is as far as Sasale river in the South West as marked in the map Exh.1 Page 41. Apparently the claim by Luluanamae over ferefila or naki customary land, including babanga land (marked green with no.3) in the said named map, now claim by the Respondents. Fortunately, the area shaded green and marked with no. 3 is not disputed.
46.	Going back to Mr Inobako’s evidence who stated they worship three devils (ancestors) at ferafila, they were Toio, Ketegao, and Ketewane and then he stressed his genealogical table. The next paragraph he stated that Luluanamae and mamate feasted at ferafila and he did feast at babanga. Customarily feasting must be celebrated at the tambu site and not on settlement site.
47.	From Mr Irobako’s evidence, is viewed as contributory in nature in an attempt to convince the Court. What his tribe owned as properties and social activities performed in the land should contribute towards presenting a strong landownership case in supporting Mr. Luluanamae. Why should it be, of a different person from a different tribe? It makes no sense.
48.	The evidence uttered by Mr Irobako was clear. His source of right was inherited from Toloio, which he traced down to himself (see his genealogy table on page 53). Babanga tambu site which he performed feasting was located with ferafila land according to the boundary decided by the 1968 cases. Therefore, Mr Irobako’s evidence was not accepted by the Courts and the decision was against him and Mr Luluanamae.
49.	Further still, it would appear without doubt that Mr Irobako had acquired his rights from Toloio, one of the three devils he mentioned. Mr Luluanamae traced his ancestors to Ketegao one of the three devils Mr Irobako mentioned as well. It would appear both Toloio and ketegao could have been the descendant of Manuaba and Riiwane, the two generation before both devils. From Irobako to Toloio is thirteen generations the same number as for Luluanamae to Ketegao.
50.	If both Irobako and Luluanamae did worship those two ancestors at ferafila, then of course both men are blood related to the ancestors. One cannot, by custom of Malaita, worship and offer sacrifice to an ancestral devil which you do not have blood related and connection to. Anything out of blood relationship, whatever activity done was defiled, unaccepted and expectedly always resulted in death. Therefore I have no doubt that both devils which Lulunamae and Irobako originated from and worshipped together in one tambu site were blood connected ancestors. As such, so far as babanga land is concerned should have one history, one genealogy, same tabu sites and same devils.
51.	To proof my conclusion, page 32 of the amended appeal book, the current Respondents tendered in the Local Court the same genealogy Mr Irobako tendered in the 1968 Native Court. In Paia V Talasasa the Court upheld the principle that judgment in customary land is inter parties which bind only the plaintiff or the defendant. The reason the Counsel for the Respondents relies on being that a disputing tribe has its own genealogy through which it claims land ownership rights.
52.	Whilst I agree with the Counsel, it is definitely different in this case. The geology which Mr Irobako as Mr Luluanamae traced point to one source, that is the two devils both worshipped at ferafila tambu site. Traditionally, two different ancestors (devils) cannot be worshipped in one tambu site, only blood related ancestors can be buried in one site and worshipped there. There can be no mixture of devils buried within one tambu site.
53.	By claiming the same genealogy as Mr Irobako did, the Respondents undoubtedly have privity of blood connected to Mr Irobako therefore is bound by the evidence of Mr Irobako. As I have narrated above, the rights of ownership to babana land by Mr Lulunamae and Mr Irobako points to one source that is the two devils, which clearly establish their rights. The fact that both were worshipped in one tambu site (at ferafila) both is related by blood. Therefore, Mr Irobako and Mr Luluamae can be identified as having privity of blood hence reinforcing a claim together to maintain their interest.
	Was Irobako a witness:
54.	The argument advances by the Counsel for the Respondents in treatment of Mr Irobaka’s evidence, that he was a mere witness with a different genealogy to that of luluanamae, hence Mr Irobako cannot be bound by the judgment in that case. The Counsel sought support from the case of Mae V Koete which outline the principle of res-judicata do not apply to a witness.
55.	There is no reason why I should not concur with the Counsel but on certain basis only. In the current case the evidence of Mr Irobako was not of an ordinary witness. His evidence can be analysed and treated as direct expository as a party. He related as him being an owner, he and Lulunamae worshipped their devils at ferafila tambu site; he owned settlement sites both within the disputed area and babanga customary land. Those settlement sites are now claimed by the Respondents. As clear as it would be, Irobako’s evidence had placed him side by side to Mr Luluanamae, together as one party. Such collaborated effort is not new. So often relatives would give evidence identifying him as having the same rights and interests as one of the parties. In such circumstances, claim of ownership to the same land is a common denominator of interest by a witness and as to that of a party. With paralleled and common history, genealogy, equal claim of rights to properties and of course equal participation and performances of certain traditional social activities, had grounded a witness and a party with the same mantel ie, both are bound by a decision given contrary to their interest.
56.	With the same genealogy exerted by Mr Irobako which now reproduced by the Respondent, cannot change the situation. The Courts had heard the evidence of Mr Irobako and Mr Luluanamae and had decided to reject it. How valuable and fresh are those same traditional stories impacted another Court of law to change a decision which had been made on those set of evidence. It would be totally out of context for a tribunal of law to decide otherwise on the same facts given in the same course of action.
57.	In 1968 case, the Court had dealt with the evidence that associated with ferafila and babanga customary lands. Now the Respondents are raising the same facts, genealogy and properties which Mr Irobako had raised in the 1968 case. With the same set of facts with two different boundaries determined, cannot be possible. Above all Mr Irobako whom the Respondents claim babanga land, been identified as having privity of blood and interest to Mr Luluanamae, therefore the Respondents are bound by the Court decisions in 1968, hence, the principle of res-judicata must apply in this case. I must therefore allow this ground.
58.	On the whole, the entire appeal is allowed with costs payable to the Appellants.
	Orders:
	1.					Order that decision of Malaita Customary Land Appeal Court given on 18th October 2011 be quashed.
	2.					The Court hereby upholds the decision of the Local Court upholding the decision of High Court of the western pacific on 13th November 1968, which upholds the decision of Native Court on 26th June 1968.
	3.					The costs of this proceeding be paid by the Respondents to the Claimants.
	The Court.

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^[1] (1982) SILR 119
^[2] (1997) SBNC 19
^[3] (1996) SBHC 92; HCSI-AC 12 of 1994 (10 June 1996)
^[4] Ibid (1)
^[5] (2016) SBCA 4, SICOA CAC 24 of 2015 (22 April 20116)
^[6](2002) SBHC 98; (2004) 3 LRSI
^[7] (1980/81) SILR 93.
^[8] (2009) SBCA 20; CAC 36 of 2006
^[9] (2008) SBHC 88; HCSI – CC 142 of 2006
^[10] (2008) SBHC 67; HCSI-CC 62 of 2008
^[11] (2013) HCSI-CC 317 of 2013 (2 October 2015)
^[12] (2013) HCSI-CC No. 155 of 2013