Midi v Gulf Three Ltd [2024] SBHC 88; HCSI-CC 309 of 2021 (2 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Midi v Gulf Three Ltd
Citation:
Date of decision:	2 August 2024
Parties:	Philip Afu Midi v Gulf Three Limited, Tropical Resources Development Company Limited, Harry Tupa
Date of hearing:	5 July 2024
Court file number(s):	309 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The principle of res judicata does not apply to the application to the Nautuha House of Chiefs to determine the boundary between Vatina customary land and Bolilau customary land. 2. The Third Defendant is not estopped from raising the issue of the boundary between the Vatina customary land and Bolilau customary land in this Court or the Courts of custom. 3. The Third Defendant is not estopped from filing a defence or cross claim in relation to the Nautuha House of Chiefs’ decision on ownership and or boundaries of Vatina customary land.
Representation:	Mr E Toifai for the Claimant Mr J To’ofilu for the First and Second Defendants Ms R Danitofea for the Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Evidence Act 2009 S 77, S 77 (2) (a), S 77 (a) (b)
Cases cited:	Talasasa v Paia [1980] SBHC 2, Talasasa v Bea [2016] SBCA 16, Isabel Timber Company Ltd v Huhurangi Enterprises [2021] SBHC 115, Hopgood v Brown [1955] EWCA Civ 7; [1955] ALL ER 550, Franklin v Manufacturers Mutual Insurance Ltd [1935] 36 SR

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 309 of 2021

BETWEEN

PHILIP AFU MIDI
Claimant

AND:

GULF THREE LIMITED
First Defendant

AND:

TROPICAL RESOURCES DEVELOPMENT COMPANY LIMITED
Second Defendant

AND:

HARRY TUPA
(Representing Himself and his Bolilau Sub-Tribe)
Third Defendant

Date of Hearing: 5 July 2024
Date of Decision: 2 August 2024

Mr E Toifai for the Claimant
Mr J To’ofilu for the First and Second Defendant
Ms R Danitofea for the Third Defendant

Lawry; PJ

RULING

Introduction

1. The Claimant has brought a claim in trespass against the First and Second Defendants alleging that timber has been felled on Vatina customary land in Central Province.
2. The First and Second Defendants assert that the timber was felled in adjoining land being Bolilau customary land. The Third Defendant has been joined to this proceeding as an interested party claiming the logs were felled on Bolilau customary land entitling the Third Defendant to the royalties from the sale of those logs.

Application

3. The Claimant has applied to the Court to determine preliminary issues of law. The issues are stated as:
   1. “Whether or not the Nautuha House of Chiefs’ decision is res judicata?”
   2. “Whether or not the Third Defendant is estopped from bringing again the ownership and boundary of Vatina customary (land) in the Nautuha House of Chiefs?”
   3. “Whether or not the Third Defendant is estopped from filing a defence or cross claim in this Court?”

Res Judicata

4. The Claimant has relied on a determination of a House of Chief’s decision in Ngella, being a determination in the Local Court in NLC 02/2003 between Mathew Paia and Nathaniel Nati dated 14 September 2005 and a judgment in the Central Islands Customary Land Appeal Court [‘CICLAC’] concerning Vatina customary land with Mathew Elvis Paia being the Appellant and Nathaniel Matekolo being the Respondent. There was a cross appeal between the same two persons in the CICLAC.
5. The Claimant has deposed that copies of each of those decisions were annexed to his sworn statement filed on 10 June 2021. At annexure PAM 2 there is unaccepted settlement form of the Customary Land Dispute. At paragraph 4 of the form there is a description of the land relating to the dispute. It is described as:
   • “The land that was disputed has been from Betiglomea to Sope. Geleniro (Kolosaga) to Tabagea Hill – Kavali Levulau – Boromole – Haravi which allows Vatina land to be located at the centre of the sub boundaries. The land was not surveyed.”
6. If annexure PAM 2 is a Chiefs decision it does not appear to have determined the boundary between Vatina customary land and Bolilau customary lands. It merely recorded the area that was in dispute and recorded that Vatina was located at the centre of the sub boundaries.
7. Of importance are two facts that appear to be agreed. The first is that the Third Defendant does not dispute that the Claimant is the owner of Vatina customary land. The Second is that the Third Defendant and his line were not a party to any of the proceedings referred to in paragraph 4.
8. The argument for the Claimant is that a person named Duddley Gorota from Bolilau tribe is an uncle of the Third Defendant. Counsel for the Claimant said that Mr Gorota gave evidence at the Local Court in support of the Claimant’s line as to the ownership of Vatina Customary land. Counsel said that Mr Gorota did not dispute the boundaries and remained silent on the subject. He recorded him as simply saying:
   • “Vatina customary land and Bolilau land are adjacent.”
9. The Court concludes that Bolilau land is the same as Bolilau customary land. The Claimant argues that the boundary was determined in the Local Court with a relative of the Third Defendant giving evident and not disputing the boundary. He says that as a result the principle of res judicata applies and that the Third Defendant is bound by the ruling in the CICLAC.
10. In Talasasa v Paia and Another [1980] SBHC 2 this Court confirmed that judgments in customary land cases are judgments inter parties rather than judgments in rem. The Court said that there must be an earlier case in which the cause of action or point in dispute was really the same. Further, the final determination by the Court on that point was on its merits and thirdly the raising of the issue is by the party who has had the same point, which has distinctly been put in issue, who has had the point solemnly and with certainty decided against him.
11. Later in Talasasa v Bea [2016] SBCA 16 the Court of Appeal said at paragraph [9]
    • “... res judicata is a principle applicable where there is an existing decision on the same issue between the same parties which is binding.”
    • At paragraph [12] the Court said:
    • “Res judicata does not only cover issues litigated but also issues which should have been litigated by the parties when the matter was before the earlier tribunal.”
    • Speaking of those who are bound the Court said:
    • “EB claimed ownership on behalf of his tribe and lost. It is now not now open to his descendant on behalf of the same line to claim the same land.”
12. The fact that Mr Gorota gave the evidence relied on by the Claimant did not make him a party to that decision. Counsel for the Claimant submitted that the Third Defendant is bound by the facts asserted by Mr Gorota, submitting that the boundary between Vatina customary land and Bolilau customary land had been dealt with in the Local Court after Mr Gorota gave evidence. Counsel was asked to indicate in the Local Court decision where in the judgment the boundary was clearly stated by the Local Court but counsel was unable to do so. He referred to a form which set out an unaccepted settlement but that does not clearly settle the boundaries as counsel submitted. In any event the Third Defendant and his line were not a party to the proceedings. When Mr Gorota gave evidence in the Local Court that was after the matter had been before the Chiefs. That means it was after the unaccepted settlement form had referred the matter to the Local Court.
13. The principle of res judicata cannot be extended to prevent the Third Defendant from claiming the logs were felled on Bolilau customary land. It follows that the Third Defendant is not prevented from relying on the decision of the Nautuha House of Chiefs in 2022 on the basis of res judicata.

Estoppel

14. Counsel for the Claimant then submitted that the Third Defendant is estopped from bringing again the issue of ownership and boundary of Vatina customary land before the Nautuha House of Chiefs. Counsel again relies on the failure of Mr Gorota to dispute the boundary between Vatina and Bolilau customary lands when he had the opportunity to do so. Counsel relies on the decision of the Chief Justice in Isabel Timber Company Limited v Huhurangi Enterprises [2001] SBHC 115. The Chief Justice cited Hopgood v Brown [1955] EWCA Civ 7; [1955] 1 All ER 550 at 559.
    • “...where one person (“the representor”) has made a representation to another person (“the representee”) in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee, at the proper time, and in the proper manner, objects thereto.”

The Chief Justice then went on to cite the words of Jordan CJ in Franklin v Manufacturers Mutual Insurance Ltd [1935] NSWStRp 62; [1935] 36 SR (NSW) 76 at 82.

• “The type of estoppel which became definitely established in the common law by the case of Pickard v. Sears [1837]....depends upon different principles. In order that this type of estoppel may arise, it is necessary that (1) by word or conduct, (2) reasonably likely to be understood as a representation of fact, (3) a representation of fact, as contrasted with a mere expression of intention, should be made to another person, either innocently or fraudulently, (4) in such circumstances that a reasonable man would regard himself as invited to act upon it in a particular way, (5) and that the representation should have been material in inducing the person to whom it was made to act on it in that way (6) so that his position would be altered to his detriment if the fact were otherwise than as represented.”

15. The circumstances in Isabel Timber Company Limited are quite different from in the present case. The Chief Justice concluded the doctrine of issue estoppel could not be used as a sword but only a shield. In the present case the Claimant relied on silence or inaction by Mr Gorota. However the Claimant must demonstrate that the silence of Mr Gorota was reasonable likely to be understood as a representation of fact, in this case as to where the boundary lay between Vatina customary land Bolilau customary land, AND that representation has caused the Claimant to act in a particular way inducing the Claimant to change his position to his own detriment.
16. All the Claimant asserts is that Mr Gorota could and should have asserted where the boundary between Vatina and Bolilau customary lands lay when he had the opportunity to do so. Counsel has not suggest that the Claimant has thereby altered his position to his own detriment as a result of that ‘implied’ representation. It follows that the Third Defendant is not estopped from raising the issue of the boundary between the two customary lands.
17. In this case both parties allege that the other is claiming land beyond the boundary as it was understood to be. The counsel for the Claimant submitted that the Third Defendant is seeking to move the boundary from its true position into Vatina customary land. Counsel for the Third Defendant similarly alleged that the Claimant is seeking to move the boundary from where it was alleged when Mr Gorota gave evidence to now extend the boundary into Bolilau land. This is properly a matter for the customary Courts and not one prevented by issue estoppel.
18. Similarly there is no basis for the submission that the Third Defendant should now, on the basis of issue estoppel, be prevented from defending the claim or bringing a counterclaim in this Court.

Admissibility of Local Court and CICLAC decisions

19. Section 77 of the Evidence Act 2009 limits the use of earlier court decisions to prove a finding of fact. It provides:
    • “77. (1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.
    • (2) This section does not affect the operation of –
    • (a) a judgment in rem; or
    • (b) the law relating to res judicata or issue estoppel.”
20. The Claimant seeks to use the ruling in the Local Court and the CICLAC to prove the location of the boundary between Vatina customary land and Bolilau customary land. Section 77 would prevent that unless the facts of this case come within the proviso set out in section 77(2). Section 77(2) (a) means that the rule does not apply to a judgment in rem. As set out in Talasasa v Paia the present case is not a judgment in rem. The other exception as set out in section 77(2) (b) relates to the law of res judicata and to issue estoppel. For the reasons set out, the doctrine of res judicata does not apply, nor does the doctrine of issue estoppel. Section 77 therefore limits the use of those decisions in the present case.
21. The preliminary issues are therefore determined as set out in the following orders.

Orders

1. The principle of res judicata does not apply to the application to the Nautuha House of Chiefs to determine the boundary between Vatina customary land and Bolilau customary land.
2. The Third Defendant is not estopped from raising the issue of the boundary between the Vatina customary land and Bolilau customary land in this Court or the Courts of custom.
3. The Third Defendant is not estopped from filing a defence or cross claim in relation to the Nautuha House of Chiefs’ decision on ownership and or boundaries of Vatina customary land.

By the Court
Hon. Justice Howard Lawry
Puisne Judge