Case Note 5 of Volume 3, 1999

UNUFANA’ADALO V WALESUA AND ANOR

High Court of Solomon Islands
Unreported Land Appeal Case No 4 of 1995
1st November 1996

This is a matter which involved an appeal from the decision of the Customary Land Appeal Court in Malaita. It involved two separate allegations that the earlier proceedings were corrupted by bias along with an allegation that the decision of the Appeal Court to rely on one of its own earlier decisions concerning the same land thereby invoking the principle of res judicata or estoppel of record somehow constituted an error of law. 

The first allegation of bias, and hence denial of natural justice, was based on the unchallenged allegation that the President of the Customary Land Appeal Court was seen during the proceedings conversing with a member of the court in the vicinity of the place of hearing before the judgement in the proceedings was actually given. However, the President was not himself a member of the Court. Apparently in the proceedings at the local court the President had been one of the witnesses for the respondents.

In fact it was on that basis that the President had disqualified himself on sitting on the appeal before the Customary Lands Appeal Court.

This claim was dismissed by the Court on the basis that the circumstances were not such as to show any real likelihood of bias according to a right minded person applying the test laid down by Lord Denning n Metropolitan Properties v Lennon and Others [1968] 3 All ER 304 applied in the Solomon Islands in Talasasa v Paia and Another (1980-1981) SILR 93. There was a need, it said, to show something more than a mere suspicion of bias the court holding (at p. 3) :

"It would be a disaster to our system of justice to allow mere suspicion or conjecture by an aggrieved party to a litigation to thwart the disciplined and reasoned decision of an impartial court. The complaint by the appellant in this case is an attempt to do just that."

The second allegation of bias was based on the claim that the respondents submitted a list of expenses to the court before the decision was actually taken. Presumably this was supposed to be an allegation of prejudice on the part of the justices involved. However, this allegation was denied by the respondents and dismissed as the appellants were unable to discharge their onus of proof.

In relation to the final ground it was alleged by the appellants that there was an error of law in that the Customary Land Appeals Court seemed to refer to and rely heavily on one of its own prior judgement concerning the same land. The former appeal Court had in fact decided that the land in question was owned exclusively by the respondents. As this previous finding was relied on heavily by the Court in the current proceedings it had in effect evoked a principle of res judicata against the appellant.

The appellants contention was that this was improper and that the Customary Land Appeal Court in the current proceedings presumably should have made its own determination of the issue. 

Res judicata is a principle of common law estoppel. It has its parallel principles in the criminal law in the form of the doctrines of autrefois acquit and autrefois convict. It is thought to be based on the notion that "it is in the public interest that there should be an end to litigation". It is just, in other words, that proceedings between parties should attain some finality as regards the issues involved in them. Once there has been an order of the court resolving these issues then the decision can only be attacked by brining an appeal or challenge on the grounds of natural justice where either is available. However, a disappointed party cannot bring the issues involved in the proceedings to life again by seeking to litigate them once more. 

Obviously there is some connection between the notion of res judicata and the doctrine of precedent because a court concerned to rule on the question will be compelled to determine what the issues were which were decided by the previous court. But there is a significant difference between a court barring an appellant's claim on the basis that it seeks to re-litigate these issues and one which involves the court merely following its own prior decisions. 

The High Court rejected the appellant's contention, saying that what the Court below had in fact done was merely to have followed its own prior decision - a stance which it was clearly entitled to take. In fact, it concluded, the Court below had not made any finding based on the doctrine of res judicata so as to bar the appellant in the present proceedings at all. The appellant, in the former proceedings, was not taken to be legally barred from challenging the issues settled in the previous proceedings. The appellant had failed to give any evidence in any event but was not at all prevented from doing so by the Court. Hence there was no misapplication or, indeed, application of the principle at all. 

Professor R. Hughes