COURT OF APPEAL OF SOLOMON ISLANDS

Court of Appeal Civil Case No. 3 of 2003

Selwyn Dika and Casper Bana

v.

David Lenga Somana and Isabel Timber Company Limited
and the Attorney General

Court of Appeal of Solomon Islands
(Palmer, J)

Date of Hearing: 2nd May 2003
Date of Judgment: 16th May 2003

G. Suri for the Appellants
A. Nori for the First Respondent
J. Apaniai for the Second Respondent
F. Waleanisia for the Third Respondent

Palmer, J: On 3rd February 2003 Selwyn Dika, first Appellant and Casper Bana, second Appellant (hereinafter referred to as “the Appellants”) filed appeal against the decision of the High Court in Civil Case No. 208 of 2002, 6th January 2003. One of the things said in that judgment was that the first Respondent was entitled to pursue the issue of ownership in custom over Rakata land before the Chiefs pursuant to the Local Courts Act (Cap. 19).

The Appellants object to that conclusion as erroneous in law. They say that the issue of ownership over Rakata land had earlier been determined in the local court case, Selwyn Dika and Others v. David Lenga Somana, (hereinafter referred to as “the Rakata Baitfish Case”) and confirmed by the High Court in Selwyn Dika v. David Lenga Somana (hereinafter referred to as “CC 256/01”). For that reason, they say the Respondents should not be allowed to pursue the matter further before the Isabel Local Court until determination of this appeal. They come to this Court by Notice of Motion filed 22nd April 2003 pursuant to Rule 11(4) of the Court of Appeal Rules for orders inter alia, to stay any further pleadings or proceedings in the High Court Civil Case No. 208 of 2002 as between the parties.

Brief Background Facts

There are three parties in the dispute; Selwyn Dika (“Dika”) representing the Mamara Tribe of Isabel Province, Casper Bana (“Bana”) representing the Etingi Tribe and the first Respondent David Lenga Somana (“Somana”) representing the Etieti Clan.

The dispute is primarily over the issue of ownership in custom of a stretch of land from Fufuana River to Ghozi (hereinafter referred to as “the Disputed Land”) (see claims of the parties as described in Selwyn Dika v. David Lenga Somana, in particular the sketch map attached to the Bundle of Documents marked as “Exhibit 3” at page 3.2 attached to the affidavit of Selwyn Dika filed on 26th August 1999 in Civil Case 276 of 1999). Dika claims that the Disputed Land is part of Rakata land owned by Mamara Clan, which stretches from Rakata River to Fufuana River. Somana on the other hand claims that the Disputed Land is part of Fufuana Land, which stretches from Pukuhoghelera to Ghozi (refer the same sketch map at page 3.2 of the Bundle of Documents marked as “Exhibit 3” attached to the affidavit of Selwyn Dika filed on 26th August 1999 in Civil Case 276 of 1999). 

A further twist to the dispute is the competing claim of the Etingi Tribe, which overlaps part of the area (from Pukuhoghelera to Fufuana) claimed by the Etieti Clan, but not the Mamara Tribe. The Etingi Clan’s boundary supposedly ends at the west side of Fufuana River, whilst the Mamara Clan’s boundary supposedly commences from the east side of the Fufuana River to Rakata River. The Etingi Clan therefore does not have any dispute with the Mamara Clan over their land boundaries. As far as they are concerned the boundary separating their lands is at Fufuana River. The Etingi Clan and the Etieti Clan however would appear to have a potential dispute over the land area from Pukuhoghelera to Fufuana!

The second matter in dispute pertains to the decision of the Isabel Customary Land Appeal Court in David Lenga Somana v. Joses Lote (hereinafter referred to as “CLAC 4 of 1989”). The case was over an area of land (hereinafter referred to for convenience as “the 1989 Land”), which Joses Lote (“Lote”) on behalf of the Bulau Clan claimed was theirs. Somana on the other hand claimed that the 1989 Land had been given to them under a “will” by Margaret Madi executed in 1974. Margaret Madi it seems was the recognised land custodian of the Mamara Tribe. The Isabel Customary Land Appeal Court (“ICLAC”) upheld the submissions of Somana and ruled in favour of the Etieti Clan as follows:

“From the west side of Pazagere to Rakata water belongs in custom to Mamara clan and the Etieti Clan have the right to use this part of land.” (Note this was a reference to the 1989 Land.)

The dispute, which has arisen over the 1989 Land, seems to have come about as a result of a misinterpretation or misunderstanding of that decision! It is important to appreciate that the Mamara Tribe was not a party in that proceeding. Further, the ICLAC merely heard evidence to the effect that the 1989 Land originally belonged to the Mamara Tribe but that it had been given over to the Etieti Clan pursuant to a “will” made by Margaret Madi in 1974. What seems to have happened is that the parties now realize there are trees in the 1989 Land, which could be logged for money, and so are disputing ownership rights over that land. The Mamara Tribe seem to be saying that the transfer under the “will” of Margaret Madi was either invalid, or for usage rights only, such as building of houses, gardening and so on, but not inclusive of the trees and forests. The Etieti Clan on the other hand say it was a divestment of customary ownership and that the Mamara Tribe no longer have rights over the said land including the trees and forests therein. Respectfully this dispute remains unresolved until determined before the appropriate courts.

The issue on appeal

The crucial issue on appeal turns on the application of the doctrine of issue estoppel, whether the Isabel Local Court in the Rakata Baitfish Case had, finally determined the issue of ownership in custom over Rakata Land. 

The application of issue estoppel was raised in a somewhat indirect way by Mr. Suri before the High Court in CC 256 of 2001, in the form of a question:

“Whether the Isabel Local Court decision made in respect of the 1994 Rakata Baitfish Ground case had declared both the sea and inland boundaries of the Rakata Fish Ground and Land?”

The obvious intent of asking the above question for the court to consider was so that if the answer was in the affirmative then that would effectively bar (estop) the Etieti clan from later re-arguing the same issue as between the same parties.

Mr. Suri’s submissions in CC 256 of 2001 was basically to the effect that when the Isabel Local Court (“ILC”) considered the issue of the boundaries of the Rakata Baitfish Ground, it also had to take into account evidence of ownership over Rakata Land. At paragraph 5 of page 3 of his written submissions, Mr. Suri said:

“Thus although the 1994 case was to resolve dispute over baitfish ground, the Local Court had dealt with evidences relating to inland and had made orders affecting the inland. It is clear that the Local Court could not detach ownership of baitfish ground from ownership of inland. In order to determine ownership of baitfish ground, the Local Court had to enquire into ownership of the inland. The fishing ground and the inland were considered as one tribal property.”

Note that at page 2 of its judgment, the ILC said:

“The court will now turn to the evidence of the Mamara clan which was represented by Selwyn Dika. Mr Dika produced his genealogical table together with the map of the disputed area. He told the court that the Mamara traditional boundary is west bank of Rakata to Fufuana River. Within that area they have their tradition places. Kasubao, Tirobangara on the main land and Gufuna. He told the court that the Mamara clan share the ritual practice with Etini clan. They have tribal nuts at Ghozi River. The Tirobangara monument was shared with Etini. The Gufuna was also shared. It had had boundary with Etini clan.” 

Mr. Suri submits that it could be deduced from the above reasoning that the decision of the ILC in awarding ownership of the Rakata Baitfish Grounds, (stretching “… from west bank of Rakata river to east side of Fufuana river across to Gufuna which share boundary with Etini. ”) to the Mamara clan, was primarily based on the claims of ownership of the Mamara clan over Rakata land; which directly abuts the baitfish area in dispute. In other words, the foundational basis of their claim of ownership over the baitfish ground was pitched on their claim of ownership over Rakata land. If that claim of ownership were dislodged then their claims of ownership over the Rakata Baitfish Grounds must also suffer the same fate.

There are a number of case authorities from other jurisdictions, which have dealt with the doctrine of issue estoppel. In Queensland Trustees Limited and Others v. Commissioner of Stamp Duties, it was held that the doctrine of issue estoppel would apply “… to the matters legally indispensable to the conclusion reached, ‘the essential foundation or groundwork of the judgment, decree or order’ ”. At page 152 Kitto J. and Taylor J. said:

“The important point is that this answer was essential to the conclusion, in the sense that to deny the correctness of the answer would necessarily be to deny the correctness of the decision itself, not merely by invalidating a step in the reasoning which led to it, but by rejecting the very foundation upon which, as a matter of legal necessity, it rested.”

See also the comments of Dixon J. in Blair and Others v. Curran and Others:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter 119 E.R. 288 at 293, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

In the phraseology of Lord Shaw, “a fact fundamental to the decision arrived at” in the former proceedings and “the legal quality of the fact” must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation (1926) A.C. 155). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion.” [Emphasis added]

In essence Mr. Suri’s submission can be summed up as follows. (i) That the consideration by the ILC of the claims of ownership by the Mamara Clan over Rakata land was a necessary prerequisite to the consideration of their claims of ownership over the Rakata Baitfish grounds. (ii) That they were obliged to consider those two issues together as they were inseparable to each other. (iii) That the person or tribe that exercises ownership claims or authority over the adjoining land is the same person or tribe that would exercise rights to the baitfish grounds abutting that land. 

Dika’s claim of ownership over Rakata land thus was a matter “legally indispensable to the conclusion reached” in that case; that is, it formed “the essential foundation or groundwork of the judgment, decree or order” reached in the said case. To that extent, Somana on behalf of the Etieti clan, was estopped from re-agitating that same issue of ownership, albeit it was not the subject matter of litigation between the parties.

That submission was accepted in my judgment of 19th June 2002, CC 256 of 2001. At page 6 I held as follows:

“The area of the baitfish ground in dispute is coloured blue in the same exhibit. Copies of Exhibit “JL7” (annexed to the affidavit of Joses Lote filed 16th May 1995 in HCSI-CC 21 of 1995) can be made available to the parties on request. That primarily was the area, which formed the subject matter of the dispute in the Rakata Baitfish Case. In reaching its decision however, the ILC had to consider the ownership claims of the parties on the mainland itself. Ownership of the baitfish ground obviously was directly linked to ownership of the adjoining customary lands in this particular instant. Hence in determining the ownership of the respective baitfish grounds the ILC was obliged to consider the respective claims of ownership over the land itself. It was in that context that determinations on the different boundaries of the adjoining customary lands were made before any determination on the Rakata Baitfish grounds were made. That was how the decision in respect of the Mamara Clan’s claims was arrived at. That decision has not been appealed against and therefore is binding on Somana as the representative of the Etieti Clan. If he was not happy with that decision he should have appealed it. He did not and is therefore bound by it.” 

Although the doctrine of issue estoppel was not directly raised in the hearing before me in CC 256 of 2001 nor adverted to in my judgment, the above decision basically applied the doctrine of issue estoppel to the finding of fact or acceptance of fact by the ILC, that the ultimate decision of the ILC regarding ownership and boundary of Rakata Baitfish Ground was directly related to claims of ownership by Mamara Clan over Rakata land; that this was a necessary finding comprising the legal foundation and the ultimate facts which form the ingredients in the ultimate decision reached. That finding formed the very foundation on which the ultimate decision rested. To deny the correctness of that finding would result in the subsequent denial of the correctness of the ultimate decision in the Rakata Baitfish Case. 

Following that decision, another court case involving the same parties was filed before the High Court (Selwyn Dika & Casper Bana v. David Lenga Somana and Others hereinafter referred to as “CC 208 of 2002”), basically to affirm and to enforce the orders of the High Court of 19th June 2002 in CC 256 of 2001. Somana’s group had continued to defy those orders and interfered with the rights of Dika as pronounced in those orders. 

Mr. Nori of Bridge Lawyers represented Somana in that case. I re-visited the question as to whether Rakata land had been finally determined as between the parties and over-ruled my earlier decision of 19th June 2002. It was somewhat unfortunate that the subject of issue estoppel was not directly raised before me in that hearing. The focus of submissions and subsequently the decision in CC 208 of 2002 was more or less on the submission that the decision of the ILC in the Rakata Baitfish Case was confined only to the coastal boundaries of the Rakata Baitfish Ground; which was legally correct. Unfortunately the application of the doctrine of issue estoppel was completely overlooked, giving rise to two conflicting decisions. 

In his submissions before me in this application, opposing the application for stay, learned Counsel Mr. Nori sought to argue that the subject matter regarding the inland boundary of Rakata land was in any event independent of the issues raised in CC 256 of 2001 and therefore cannot be made the subject of any orders for stay. To do so would be to interfere with the rights of the first Respondent to pursue the matter under the Local Courts Act. Unfortunately I do not agree. The doctrine of issue estoppel raised in CC 256 of 2001 is pertinent to the competing claim of the first Respondent. If the Appellants should succeed in this appeal, then that will have the effect of displacing any competing claim of the first Respondent over that same area of land. Accordingly, the only appropriate order to impose in the circumstances of this case would be to grant a stay pending determination of this appeal. 
 
I have taken time to define the issues and claims of the parties in some detail, more for purposes of convenience so that the parties themselves can appreciate and understand the issues that are being agitated before the courts and now finally before the Court of Appeal. This is important because so many cases between the parties, or which impinge in one way or another over the same area of land in dispute have come through the courts (see David Lenga Somana v. Joses Lote HCSI-CC 21 of 1995, Selwyn Dika v. David Lenga Somana & Attorney General HCSI-CC 276 of 1999, Selwyn Dika v. David Lenga Somana HCSI-CC 256 of 2001 and Selwyn Dika & Casper Bana v. David Lenga Somana & Others HCSI-CC 208 of 2002). 

The inevitable conclusion reached is that any further proceedings in relation to the disputed area of land between the east side of Fufuana River to Ghozi, in the High Court Civil Case No. 208 of 2002 between the parties hereof must be stayed. I have restricted the orders for stay of proceedings to that area because my understanding of the dispute between the parties (Dika and Somana) is that Somana does not dispute the area of land from west bank of Rakata River to Ghozi. I say this because this very issue on the area of dispute was drawn to the attention of the parties when they came before me in High Court Civil Case No. 276 of 1999. I asked the parties specifically to identify clearly on a sketch map the areas of land they claim and to identify the area in dispute. They were given a day or so to consider the matter and eventually came up with an agreed map (see page 3.2 of Exhibit “SD3” annexed to affidavit of Selwyn Dika filed 26th August 1999 in HCSI-CC 276 of 1999) as correctly depicting the area of land that was in dispute between them.

But, if the first Respondent should insist that his claim also included the area from Ghozi to the east side of the Rakata River then this Order for Stay will have to be extended to include that whole area from Fufuana River to Rakata River. In the event that this is, the Appellant is to apply for extension of the orders for stay.

One further matter needs to be clarified; this is in relation to the order of the ICLAC over the 1989 Land, which formed the subject matter of the dispute in CLAC 4 of 1989. The Order of Stay does not affect that decision. I say this for the following reasons. (1) The Mamara Clan was not joined as a party to the dispute in CLAC 4 of 1989. The dispute was between the Etieti Clan and the Bulau Clan represented by Joses Lote. Any decision therefore made by the ICLAC did not bind the Mamara Clan. (2) Any references made to the Mamara Clan in that decision must be construed in the light of the submission of the Etieti Clan, that they had acquired title to the said land pursuant to a “will” made by Margaret Madi in 1974. Somana had conceded in his submissions before the ILC and the ICLAC, that the original landowners were the Mamara Clan. However, that submission was made in the light of their claim that they had acquired valid title in custom over the said land! (3) The order of the ICLAC that “the Etieti Clan have the right to use this part of the land” must be construed as endorsing their claim of a valid transfer in custom by the “will” of Margaret Madi. (4) If the Mamara Clan disputes that transfer as amounting to nothing more than just a transfer of rights entitling them to reside, build houses, make gardens and so on, but does not include transfer of such other rights as timber rights, then the parties ought to take this matter up under the Local Courts Act. What is important to appreciate is that this is a matter, which remains untested before the relevant courts. There is no binding decision as between them. The Order for Stay therefore cannot be extended to cover the 1989 Land. The issues in custom regarding the validity of the “will” and the rights transferred under that “will” remain live issues between them. 

Orders of the Court:

1.	Stay any further proceedings in the High Court Civil Case No. 208 of 2002 between the parties hereof in respect of the area of land in dispute between the east side of Fufuana River to Ghozi.

2.	Costs of and incidental to this application be in the cause.

The Court.