Kepo v Nalegolomo [2022] SBHC 107; HCSI-CC 660 of 2020 (7 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kepo v Nalegolomo
Citation:
Date of decision:	7 June 2022
Parties:	Calvin Kepo and Simmy Vazarabatu v Lazarus Nalegolomo
Date of hearing:	6 September 2021
Court file number(s):	660 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. On the first issue, the decision of the 1968 Lauru Local Court was not a decision in rem. 2. On the second issue a party who was not represented at and bound by an earlier decision is not estopped from bring a claim over the ownership and rights of customary land. 3. The 1968 Lauru Local Court decision binds the parties to that decision just as the 2019 CLAC decision binds the parties to that decision. One does not prevail over the other. 4. The application to strike out the claim is refused. 5. The Defendant is to pay the costs of this application.
Representation:	Mr L Kwaiga for the Claimants Ms L Ramo for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r 12.11
Cases cited:	Talasasa v Paia [1980] SBHC 2, Billy v Daokalia [1995] SBCA 5, Majoria v Jino [2007] SBCA 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 660 of 2020

BETWEEN

CALVIN KEPO AND SIMMY VAZARABATU
(Representing the Tavoto Clan of Choisuel Province)

AND:

LAZARUS NALEGOLOMO
(Representing the Tagara Clan of Choisuel Province)
Defendant

Date of Hearing: 6 September 2021
Date of Decision: 7 June 2022

Mr L Kwaiga for the Claimants
Ms L Ramo for the Defendant

Lawry; PJ

RULING

Introduction

1. The Claimants have sought declarations in relation to Duadua customary land in Choiseul Province. In 1968 the Lauru Local Court made a determination concerning the land. That decision was confirmed in a further sitting of the Lauru Local Court on 28 June 2019. On 30 November 2019 there was a ruling in the Western Customary Land Appeal Court in an appeal involving the Kuaka Clan and the Tagara Clan of the Duadua Tribe.

The Application

2. The Defendant has sought a determination on three preliminary issues of law pursuant to rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007:
   • 2.1 Whether the decision of the Lauru Local Court was a decision in rem; and
   • 2.2 Whether a fresh party can be estopped from bringing a claim over the ownership and/or rights in customary land; and
   • 2.3 Whether the 1968 decision of the Lauru Local Court prevails over the Western Customary Appeal Court decision of 2019.
3. The Defendant also submits that the proceedings should have been commenced by way of judicial review. The Defendant also submits that the Western Customary Land Appeal Court should have been named as a party. That of course would have been required if this was a judicial review because rule 15.3.7(c) so requires. As these two issues are not part of the application the Court will limit itself to the three questions set out above.

Decision in Rem

4. Whether proceedings involving customary law are inter partes or in rem has come before the Court on several occasions. In Talasasa v Paia [1980] SBHC 2 Daly CJ concluded that as customary land cases in Solomon Islands usually involve the interests of a genealogical line in a particular piece of land a judgment concerning customary land is generally not binding on the world at large and therefore not a judgment in rem.
5. The Court of Appeal in Billy v Daokalia [1995] SBCA considered the issue and said:
   • “Then we have the approach of the courts in this jurisdiction to such judgments. The High Court, in the cases of Talasasa v Paia and Another [1980/81] SILR 93; and Lilo v Panda, and Lilo v Ghotokera [1980/81] SILR 155, took the view that such judgments were “judgments inter partes” on the grounds that in the Solomon Islands context, native customary land cases usually involved the specific interests of a line or land-holding group, in a particular piece of land, as opposed to the interests of another line. This approach appears not to have changed.”
6. In Billy v Daokalia there had been a case determined in 1959. In 1961 there was a further case brought concerning the same piece of land but involving different parties. The Court asked itself the question: “Is the judgment in the 1959 case a judgment in rem and therefore binding on the world at large, or a judgment inter partes?” The Court found that the 1959 case had been to determine ownership between the two parties concerned. As a result, it was binding on those parties. They would have been estopped from initiating any further proceedings on the question of ownership over the said land. However, the 1961 proceedings were not between the same parties as the 1959 case and the issues raised were not the same. The Court then looked at the lineage of the parties. The Court said:
   • “There is no evidence in the 1961 case to show that Laubako and Fuleigau may have had in turn a common ancestry or were closely related to each other. There was no evidence to show too that Walter Bili was a privy to Misitana’s claim in the 1959 case. What is also important to note is that the claim of Walter Bili is separate and distinct to the claim of Misitana. Although the question considered in the 1961 case was related to questions of ownership over Suifau Land, it was a separate claim by a separate land-owner.”
7. The 1968 decision of the Lauru Local Court was a decision as to ownership of customary land determined between the two parties involved. It was therefore a decision inter partes and not a decision in rem. The Claimant did not dispute that such was the case. The Claimants pointed out that the 1968 case was not appealed and was binding on the parties involved. They acknowledged that the decision was a decision inter partes.
8. Applying the principles set out by the Court of Appeal. The answer to the first question is that the 1968 decision of the Lauru Local Court is not a decision in rem.

Estoppel

9. Similarly, the Claimants acknowledge that a fresh party is not estopped from bringing its claim over the ownership or rights in customary land. The principle of res judicata was considered in Majoria v Jino [2007] SBCA 20. The Court adopted what had been said in Talasasa v Paia concerning the essential elements of the principle:
   • “(i) an earlier case in which the cause of action or point in dispute was really the same;
   • (ii) a final determination by a court of that cause of action or point on its merits; and
   • (iii) the raising of the same cause of action 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.”
10. The Court then went on to apply those principles saying:
    • “On behalf of the First Respondent it was submitted that the Appellant is related to the plaintiffs in Veno and hence is bound by the judgment against them. No evidence was produced either at the trial or before us to substantiate this claim. At all events, much would depend on the precise nature of the relationship, if any. As we have already mentioned, the plaintiffs in that case did not purport to represent the Appellant or, for that matter, any members of his tribe. To the contrary, their whole case was that they were not members of the Kadiki tribe. It is not possible to accept that it is just that the Appellant or his tribe should by bound by the action of a litigant whose case depended on the repudiation of any connexion with them. Moreover, the issues in Veno were not those sought to be litigated by the Appellant in the present litigation, as appears from the above discussion of that case.”
11. The basis for the second question asked is whether a fresh party can be estopped from bring a claim over the ownership of the land. A fresh party may be estopped from bringing fresh proceedings determining the ownership of the same land as the land in the 1968 decision. It depends on the nature of the relationship between the claimant in the second proceedings with one of the parties in the previous proceedings, whether there was a final determination on the cause of action or point on its merits and whether the same cause of action or point has been put in issue by a party who has had that decided against him. The Court has then gone on to look at the relationship to determine whether the party in the earlier proceedings purported to represent the claimant in the later proceedings.
12. It follows that the answer to the second question is not a simple yes or no, it requires a consideration of the issues set out above. If, by the use of the term “a fresh party” it is intended to mean that the claimant in later proceedings has not been represented in the earlier proceedings then the claimant in the second proceedings would not have had the issue decided against him and would therefore not be estopped from bringing a claim over the ownership and rights of the land.

Does the 1968 decision of the Lauru Local Court prevail over the CLAC decision in 2019

13. The decision of the Lauru Local Court in 1968 was not appealed. It is binding on the parties to it including on those represented by those parties. Similarly, the decision of the CLAC in 2019 is binding on the parties to that decision. It does not and cannot over-rule the 1968 decision of the Lauru Local Court as against the parties to the 1968 decision. As set out in paragraph 1, the parties to the 2019 CLAC decision represented the Kuaka clan and the Tagara clan. In the 1968 decision the parties were Mark Qilavae of Nukiki and Peter Tavoto of Vurango. The Court found in favour of Peter Tavoto. The evidence before this Court is that he was of the Tavoto Clan as are the Claimants in this proceeding.
14. The Tavoto clan was not represented at nor a party to the proceedings in the CLAC hearing in 2019. The members of the Tavoto clan are not bound by the 2019 decision of the CLAC. The question posed over simplifies the issue and is not a question that is properly able to be answered. The decisions are each ones that bind the parties to those decisions.
15. The Defendant says that the Tavoto clan was named as a party in proceedings before the Tavalu/South Batava Council of Chiefs in 2008. They were not present before the Chiefs. It is not known why they were not present. The Defendant’s submission is that the 2019 CLAC decision has arisen out of the 2008 Chiefs decision. The submission is that as they did not take part in the hearing they have failed to defend their rights established in 1968. They are therefore bound by the 2019 CLAC decision to which they were not a party.
16. Such a submission fails to understand the reasoning behind the principle of res judicata. The Defendant appears to be submitting that when a decision of the House of Chiefs is appealed to the Local Court and not further appealed, a subsequent house of chiefs can sit in appeal on the Local Court decision. No authority has been put forward to support such reasoning.
17. The 2019 decision of the CLAC is not an appeal of the 1968 Local Court decision. It does not involve the same parties as the 1968 decision nor the same clan. It does not supersede the 1968 decision. Just as the 1968 decision was an inter partes decision so too is the 2019 CLAC decision.
18. The Defendant has asked that the Claim be dismissed. That application must be refused for the reasons given.

Orders

1. On the first issue, the decision of the 1968 Lauru Local Court was not a decision in rem.
2. On the second issue a party who was not represented at and bound by an earlier decision is not estopped from bring a claim over the ownership and rights of customary land.
3. The 1968 Lauru Local Court decision binds the parties to that decision just as the 2019 CLAC decision binds the parties to that decision. One does not prevail over the other.
4. The application to strike out the claim is refused.
5. The Defendant is to pay the costs of this application.

By the Court
Justice Howard Lawry
Puisne Judge