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Sori v Saeni [2017] SBHC 91; HCSI-CC 430 of 2007 (16 August 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)


Civil Case No. 430 of 2007


BETWEEN: JOHN SORI - Claimant


AND: FALASI SAENI & THOMPSON TAGINI - Defendant


Date of Ruling: 16 August 2017


  1. Laurere for the Claimant

L. Kwana for the Defendant


JUDGMENT


Maina PJ:


Introduction


The Claimant, John Sori claims that his uncle Timothy Tagini for his tribe was awarded or won the ownership of Salofou customary land in a Local Court case no. 1 of 1976. And alleges the Defendants were members of Samani’s tribe who lost in the case thereby cause of action in case between the Defendants estopple.


A claim (Originating Summon (O.58.2)) for judicial review was filed on 16th November 2007 and later refiled under Claim Category C (R.5.5) on 29th July 2013. The Claimant is seeking for:

  1. A declaration that the First and Second Defendant are bound by the decision of the Malaita Local Court case No. 1 of 1976;
  2. A declaration that the claim by Aena’asi in the Malaita Local Court case in 1984 for ownership of that block of land called Daolana within Salofou land is res judicata;
  3. An order that the Respondent have no lawful ground to remain and occupy Daolana land or part of Salofou land;
  4. An order for the Respondent to pay the cost;
  5. Any other order the court deems fit and equitable in the circumstance.

This case was struck out by the Registrar for want of prosecution but was reinstated by the order of the court on 12 March 2013. Defendant deny the claim and filed a defence on 6th June 2013.


Facts


The parties agreed to the fact and are summarised as follows:


A case on the customary land ownership of Salofou land was litigated or contested by Timothy Tagini (uncle of the Claimant) and Samani before the Malaita Local Court in 1976. The ownership of the land was awarded to Timothy Tagini and his tribe. There was no appeal to Malaita CLAC of the decision in 1976 case. It is therefore a final decision on the customary ownership of Salofou land between the parties’ tribes.


In 1984, a dispute over a piece of land named by Lionel Aena’asi (Claimant) as Daolana land and known by Makasi Irokisi (Defendant) as Ausumae land was litigated before the Local Court. The Daolana or Ausumae land referred to by the parties is a same piece of land within Salofou customary land. The case had reached the CLAC which ruled that Lionel Aena’asi’s line owned Daolana. Irokasi appealed to the High Court (HC/CLA no. 10 of 1984) and the High Court remitted back the case to a different constitutes CLAC members.


The agreed fact seems to suggest this remittance by the High Court of the dispute between the Defendants has not been heard to this date. However the then Principal Magistrate – Malaita in his letter dated 16th May 1989 to Lionel Aena’asi confirmed that the CLAC had heard the case and further remitted the dispute to the Local Court.


The Issues


The parties agree on 5 issues for the court to determine for this case and are:


  1. Whether the land referred by the Claimant as Salofou land is the same land described by the Defendant as Daolana land?
  2. Whether the Defendants are of the same line as Samani who lost the land case between Samani and Tagini in the Malaita Local Court Case no. 1 of 1976?
  3. Whether the boundary of Salofou land is that was described by the Local Court in Land case no. 1 of 1976?
  4. Where is Daolana land in relation to Salofou Customary Land?
  5. Whether it is proper for the Claimant to question, challenge and or/bring this proceeding before the High Court given that up to date the customary land appeal case between Irokisi and Aena’asi is still pending before Malaita CLAC after it was remitted by the High Court on 3rd May 1984?

Noting from the declaratory sought by the Claimant, facts and issues as presented by the parties to the court it is on the question of whether the decision of the Local Court case no 1 of 1976 is binding on the Defendants in particular Lionel Aena’asi (plaintiff in 1984 case).


This relates to the principle of res judicata and it is my view that if the issues in 2 and 5 is dealt with, it will answer and determine all the issues.


Issue 2


This Issue 2 is questioning the linage or relationship in custom of the Defendants and Samani who lost the land to Tagini (Claimant’s side) in the Malaita Local Court Case no. 1 of 1976.


For this issue the argument presented by the Claimant to support his case is on question of custom that this court lacks the jurisdiction to deal with custom.


Counsel for the claimant in his submission made reference to the famous cases in this jurisdiction i.e. Veno and Young v... Oliver Jino & Others [2003] SBHC 127; HCC-CC: 152 of 2003, the Simbe case Court of Appeal Civil Case no. 8 of 1997 on the issues of custom with this court.


Counsel for the Defendant also said in his submission at the conclusion:


“(f) As far as Salofou is concerned as far as the parties to that dispute in 1976 are or were concerned, the decision is final and binding on the parties and not the land. The decision is not binding on non-parties to the said dispute. Daolana or Ausumae land is not Salofou land but a piece of land within Salofou”.


And counsel for the Defendant submitted that this issue of linage of the Defendants with Samani who lost in LC no. 1 of 1976 had been referred to the chiefs within or around the locality. The Olemaoma Council of Chiefs on 7th October 2011 dealt with this issue of linage on the parties. The chiefs made reference to the Malaita Local Court Case no. 1 of 1976 and said or ruled that Irokisi, Falasi, Thompson (Tagini) and Samani are close relatives to each other. The chief’s decision on the Defendant parties’ linage with Samani not been or any referral to the Local Court in pursuant of section 12 of the Local Act. With the chiefs notes or record disclosed in the court the parties (Aena’asi v Irokisi) to the 1984 case are of the same tribe of Samani or they are relatives of Samani who had lost in the 1976 case to the Claimant’s tribe.


With the question on jurisdiction, it is just right that this court lack the jurisdiction to deal with issues of the custom. But the question is if the chiefs or the local court for that matter had dealt with this linage issue of the parties. And that had been done when the Olemaoma Council of Chief’s ruled that Aena’asi and Irokisi are from the same tribe of Samani and they are close relatives to each other.


The LC case no.1 of 1976 record of proceeding also shows the 2nd Defendant’s father Obed Tagini) gave evidence at hearing of the local court. Thus, make the Defendants estoppel by record to deny or permit to dispute the fact upon a judgment was made that Salofou land was owned by the Claimant John Sori’s tribe.


The chiefs has power to deal with custom issues and when this issue of linage was brought to them, they made reference to the LC Case no. 1 of 1976 and decided or confirmed the Defendants are relatives or same line with Samani who lost in the 1976 case.


Defendant did not disclaim this relationship in defence but para. 5 of the Defendant’s defence admitted the Lionel Aena’asi was the first named Defendant’s (Falasi Saenz) grandfather and these people were arguing a portion of land within the Salofou land.

The evidences with the documents presented to the court shows that a dispute on the ownership of Salofou customary land was brought by the parties before the Local Court in LC no. 1 of 1976 and the decision was in favour to the Claimant’s side in the case.


On the submission by the Defendant’s counsel at the conclusion that thought the 1976 decision is final it is binding on the parties and not the land. I wish to refer to what Faukona J stated in the case David Koina, Havea Majoria, Lezi Tusi and Nelson Sam v Clerk to Local Court (Western) & Oliver Bikomoro Jino HC/Civil Case no. 155 of 2013. He said:

“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”.

I applaud and adopt this statement by Faukona J as this is the common belief in ownership of customary land that human person cannot be isolated from the customary right of ownership to the land. Custom is and as well accepted by the people is or must time immemorial, reasonable, certain and continued without interruption. This is well accepted by the people in particular Melanesian society and it continues.

Local court applies custom when deciding on the ownership of customary land and so the chiefs when they decide on the linage issue of Samani and the Defendants who are the parties in 1984 case.

The law that regulate customary land is custom. It is unwritten and oral tradition and is recognised by the Constitution as part of the laws of Solomon Islands.

From the fact that it is unwritten kind, its existence as law can be recognize that such practice, use or behaviour is custom by the features or attributes of custom as it is or must be of time immemorial, reasonable, certain and continued without interruption. Certainly it is so as no contrary evidence was shown by the Defendants for their case.


For this issue I rule that the Defendants are of the same line with or close relatives of Samani who lost in the LC Case no. 1 of 1976.


Issue 5


This issue is questioning the right of the Claimant to commence this case against Defendants who are disputing among themselves a portion of land within the Salofou customary land that was awarded by the court to the Claimant. The Defendant’s case had reached the High Court but was remitted back to the courts below.


As far as this Issue 5 is concerned the Malaita CLAC had attended to the remittance by the High Court on 3rd May 1984 and referred back the case to the local court. Principal Magistrate (Malaita) in his letter dated 16th April 1989 to one of the Defendants Lionel Aena’asi confirmed this referral to the Local Court.


The Defendant acknowledged in the submission that the Claimant is not a party in the case between Lionel Aena’asi and Makasi Irokisi over a piece of land known as Daolana land (within Salofou customary land awarded to claimant’s tribe by the LC Case no. 1 of 1976).


For the Claimant, he is not a party in the dispute between Lionel Aena’asi and Makasi Irokisi over Daolana land within Salofou customary land which the CLAC had referred back to the Local Court. With that fact and with the decision of LC Case no. 1 of 1976, that would not prevent him nor raise any question or to bring this proceeding before the High Court.
The law on res judicata


This case concerns or relates to the law on res judicata and Foukona J in the case David Koina, Havea Majoria, Lezi Tusi and Nelson Sam v Clerk to Local Court (Western) & Oliver Bikomoro Jino HC/Civil Case no. 155 of 2013 states that requirement to establish or the principles of res judicata:


“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”.


He stated that for the identity of parties in the concluded action and to establish the action estopple is to satisfy or evidence that there is privity of interest.


The elements of the principle of res judicata was stated by Daly CJ in Talasasa V Paia (1980/81) SI LR 93 and adopted Palmer J (as he then was) in the case Kofana v Aute'e [1999] SBHC 92; HC-LAC 001 of 1998. The elements required for the res judicata that or to ensure an earlier case in which the cause of action or point in dispute was really the same; a final determination by a Court of that cause of action or point on its merits; and 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.

For this case and as the evidences is that:

  1. The dispute in the LC Case no. 1 of 1976 is on the land as accepted by the parties in the agreed facts on the ownership of Salofou customary land.
  2. The cause of action with this case is or relates to the ownership of this land won by the claimant from the Defendants in the 1976 case. Now the dispute between the parties in this case is over a portion of land known to the Defendants as Daolana land is within the Salofou customary land;
  3. A final determination in the LC Case no. 1 of 1976 was on the cause action or on the ownership of the Salofou customary land between the Timothy Tagini (uncle of the Claimant (claimant’s tribe)) and Samani who is the relative or same tribe of the Lionel Aena’asi and Makasi Irokisi. The Defendant parties are disputing among themselves over a portion with the land already won by the claimant’s tribe in the LC Case no. 1 of 1976 from them; I take judicial notice that in custom land is tribally owned every people of the tribe;
  4. The dispute in the case Lionel Aena’asi v Makasi Irokisi currently pending before the Local court after it was remitted to them by the CLAC since or sometime in around 1987. This case in the local court is by or among the parties who had lost in the 1976 case to the Claimant’s tribe.

These facts reveals the ownership of Salofou customary land was litigated between the claimant’s tribe and Samani who were relatives of the Defendants by linage or tribe in the LC Case no. 1 of 1976. The cause of action was the ownership of the land which was awarded to the claimant’s tribe. A decision in the case is against Samani and the Defendants.


The Claimant is not a party to this dispute between Lionel Aena’asi and Makasi Irokisi over Daolana land within Salofou land. And the Claimant is holding a decision of the court (Malaita Local Court in the Case no.1 of 1976) which binds him and the Defendant’s side. The defendant parties were relatives and participated in that case the claimant’s party was awarded ownership of Salofou Customary Land. The second Defendant’s father Obed Tagini) gave evidence at the hearing of the 1976 case when the ownership was awarded to the Claimant’s side.
From the facts stated in Issues 2 and 5, I am satisfied that:


The First and Second Defendants are close relatives and the same of linage of the Samani who lost the Salofou Customary Malaita Local Court case No. 1 of 1976 to the Claimant side. The Defendant are bound to the decision of 1976 case and or including that block of land called Daolana within Salofou land and subject to the claim by Aena’asi in the Malaita Local Court case in 1984.


ORDERS


  1. Declaratory Orders in 1, 2 and 3 are granted;
  2. Cost in the cause; and
  3. No further orders

THE COURT


......................................................
Justice Leonard R Maina
Puisne Judge

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