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

Civil Case No. 313 of 2013

BETWEEN:

desmond taou
Claimants

AND:

JOHN HAGAPWETO & OTHERS
First Defendant

AND:

ANDREW PWATE
Second Defendant

AND:

JOE KONIHAKA
Third Defendant

Date of Hearing: 28th July and 1st August 2014
Date of Judgment: 27th August 2014

Counsel: Donald Marahare – For the Claimants 
Counsel: Manaka – For the Defendants 

JUDGMENT

Maina, J:

Claimant Desmond Taou and his group has dispute over the ownership of Makia land with Andrew Pwate (2nd Respondent).

Desmond Taou wanted to bring the dispute to the Ugi Islands Chiefs, but the respondents prevented him to pursue or bring his case of claim of ownership before the Chiefs on the reason that judgment or determination of the ownership of the land has been made by the Courts. And his grandfather was a party to the previous Court decisions on the land and decision is bidding on him.

The Claimant Taou claims that he and his group were not parties to any previous Court cases covering Makia customary land on Ugi Island.

He now brings the matter to the Court and seeks declaratory orders that the Claimant were not parties to any previous Court cases covering Makia land on Ugi Island, Makira/Ulawa Province and therefore not to be stopped from pursuing his claim of the ownership of Makia land on Ugi Island, Makira/Ulawa Province.

Issues

The issues relates to res judicata/issue estoppels and appropriate forum for referral of the dispute.

And the issue is whether the principle of res judicata applies to the parties in the cause of action and whether the Claimant is estoppels to pursue his claim of ownership of Makia land.

Fact of the case

The Claimants and 2nd Defendants have a dispute over the ownership of Makia land and the Claimant referred the dispute to the 1st Defendants who are the members of Ugi Council of Chiefs by letter on 28th August 2012. And a follow up letter was made to the 1st Defendant dated 31st November 2013. Defendants said that the ownership of the concerned land had already been decided in the previous Courts decisions. The 3rd Defendant is the Chiefs of Ugi Island and also thinks that the ownership of the Makia land had been settled in the previous Court decisions.

Second Defendant stated that the Claimant's grandfather was a witness in the previous Local Court and High Court cases which the second Defendant won in those Courts. He further stated that the courts had finally determined the ownership of Makia land.

Agreed Facts

The agreed facts by the parties are:

1.	The Claimants are not related to the second Defendant and third Defendants either in blood or in custom through tribal ties.

2.	The Claimants were not parties to the following cases namely:

(a)	Joe Konihaka v Clement Maewawa (Bauro Native Court No. 4/71 
Judgment delivered on 25th April 1972.

(b)	Joe Konihaka v Clement Maewawa (High Court of Western Pacific Case No. 20/71)
Judgment delivered by J. Bodily, CJ on December 1972; and

(c)	Andrew Pwate v Joe Konihaka (High Court of Solomon Islands Civil Case No. 116 of 1996)
Judgment delivered by Palmer J (as he then was) on 31st October 1996.

3.	These cases are related to the Makia land being the land the subject of this proceeding.

4.	According to the decisions of the cases outlined above the ownership in custom of Makia Customary land is vested on the second Defendant.

Analysing of Evidence

Counsel Manaka for the Defendants contended that the relief sought by the Claimant is, in fact seeking to re-determine the ownership of Makia land, but the ownership had been determined by the Court in the previous cases.

The contention is that the Claimant was a party to the previous proceedings on this Makia land and therefore the principle of res judicata applies and that would estoppels the Claimant bringing the case to the Ugi Island Chiefs and the Court.

The appropriate starting point or the test for the issue in this case is the case Talasasa v Paia [1980] SBHC 2; [1980-1981] SILR 93 (13 October 1980). In that case CJ Daly held:

"Judgments in customary land cases are judgments inter partes rather than judgments in rem and therefore do not bind third parties unless prior to the proceedings".

With the above, I also remind myself that there are also common features or aspects on custom that need to be bore in mind or take into account when making or considering judgments in customary land cases.

In brief, the decision in customary land is binding only to those who were parties to case before the Court. Customary land is tribally owned and usually traced from lineage, an inheritance from father or male ancestor and or an inheritance from mother or female ancestor. It is not owned by one person rather a group of people. The parties comprises of people who are in tribal grouping that claims ownership of customary land. There may be others who were excluded on certain reasons that commonly known by those tribal groups.

The evidence must show that the previous decisions of the Courts on Makia land is or are not binding to Claimant.

For the Claimant, it is submitted that as clearly shown in the agreed fact, the Claimants are not related to the 2nd and 3rd second Defendants either in blood or in custom through tribal ties. And they were not parties in the Makia land dispute that were decided in Native Court, High Court of Western Pacific and High Court of Solomon Islands that earlier referred to in the agreed facts.

The 2nd and 3rd Defendants in the present case were disputing parties in the previous cases as noted in the agreed facts i.e. Clement Maewawa and Joe Konihaka over the ownership of the Makia land and the former won the ownership from the later.

From the sworn statements by the children of the two previous disputing parties in the previous cases, they claim that Claimant's party (Hopkens Manuitai) was a witness for Clement Maewawa's party in the previous cases. The Defence relied on the sworn statement of Grover Warite, son of Andrew Pwate (2nd Defendants). He made reference to letter on 11th February 1972 from District Commissioner's Office, Eastern (Exhibit "GW1"). However, that letter in fact relates to authority to travel on the ship Komaliae for the land case and being witness.

He also made reference to letter of 6th March 1978 by A. Siau, Government Agent (E) Makira/Ulawa Kirakira (Exhibit "GW2"). But what transpires from the letter relates to the discussion between President of Ugi Local Court and the Government Agent. Claimant's father Manuitai was prevented from opening a case related to Makia land. Government Agent said he believed Mr. Manuitai was not acting on Konihaka's half.

The evidence of Grover Warite made reference the cases to the land in question but it was made outside the Court or arose from the conversation. It was not made at the proceedings of the Bauro Native Court No. 4/71 judgment delivered on 25th April 1972, High Court of Western Pacific Case No. 20/71, judgment delivered by J. Bodily, CJ on December 1972 and High Court Civil Case No. 116 of 1996 judgment on 31st October 1996.

All that is clear before me is that the Claimants grandfather was not a party to the previous Native Court, High Court of Western Pacific and High Court which the Defendant attempt to rely on. This is also confirmed in the agreed fact that the Claimants are not related to the second Defendant and third Defendants either in blood or in custom through tribal ties.

Counsel for Respondent raised a related issue of same interest that being ownership over Makia land. However, such fall short from the test of findings on privity of blood, title and interest as it is clear that the Claimants are not related to the second and third Defendants either in blood or in custom through tribal ties.

Counsel for Respondent also refer to the case Lagobe v Premier of Western Province [2008] SBHC 67; HCSI-CC 62 of 2008 (20 October 2008). In that case, Foukona J held that judgments of Vella La Vella Local Court and Western Customary Appeal Court are final and the principle of res judicata applies in the case. It is so with that case because the Court proof that the parties were parties to previous Court proceedings relates to the land.

Applying the Law 

The Law on the principle of res judicata is well settled in this jurisdiction. This principle relates to issues that have been settled by a judicial decision or the same parties from litigating a second lawsuit on the same claim, or related claim arising from the same transactions.

Among others a leading case is by Court of Appeal in Majoria –v- Jino [2007] unreported CA 36/06 when the Court held that:

"To make act estopppel per rem judicatam or "cause of action" estoppel, it is necessary to show that the earlier judgment relied on was a final judgment, and that between the former and the present litigation there is an identity of parties and subject matter or "cause of action".

The Court of Appeal has approved the statement of essential elements of the principle of res judicata in Talasasa –v- Paia [1980 – 81] SILR 93, 100-101]

(a)	An earlier case in which the cause of action or point in dispute was really the same.

(b)	A final determination by a Court of that cause of action or point on its merit.

(c)	The raising of the same cause of action, or the same point which was distinctly put in issue, by a party who has had the action or point solemnly and with certainly decided against him.

The case laws now set the premises which the Court can rely in the determination the issue of res judicata and particularly with customary land matters.

Conclusion

With the Claimant's case, there is no evidence to show that the Claimant was the party to the previous Court cases on the Makia customary land. On that basis the decision on those previous cases are not binding to Claimant and his party. The principle of "res judicata" does not apply to the Claimants and therefore he not estoppels to bring a claim of ownership between him and the second and third Defendant to the appropriate tribunal i.e. Ugi Council of Chiefs.

I am satisfied with the Claimant claims and accordingly make the orders as follows:

Orders

1.	Claimant are not parties to any previous Court cases covering Makia land on Ugi Island, Makira/Ulawa Province.

2.	Claimants are not stopped from pursuing the issue as to the ownership of Makia land on Ugi Island, Makira/Ulawa Province.

3.	First Defendants or Chiefs to convene a hearing to hear the dispute as the issue of ownership of Makia land as between the Claimants on one part and the second and third Defendants.

4.	Cost in the cause.

THE COURT

Leonard R Maina
Puisne Judge