That second disadvantage is perhaps the more worrisome to Mr. Letagara.
A
case is said to be res judica> if it is brougbrought as
between the same parties or their successors in title as in an earlier case,
concerning the same
subject matter and founded on the same cause of
complaint. Res judicata is usually a plea and a
special one at that, urging the court to decide it before entering the merit
of the case. Given the
history of this case, Mr. Letagara was expected to
respond to the case papers of the 1994/95 Local Court case served on him.
He
did not, but I am prepared to accept that even so, given the supervisory
power of the High Court, especially about
procedure, it was open to him to
apply to the High Court to correct what he considered to be a miscarriage in
procedure.
The subject matter of this case is Dond, the same land that was was the
subject of the case in the Court of the District
Officer, decided on
25.10.1951, the Local Court Case No. 4 of 1970, and the case in 1994 in
which judgment was given
on 24.8.1995. The nature of the complaint in all
the cases is customary right over Dola Land. From the record there is one
question though, about the extent of the right claimed in each case. The
1970/71 case was silent about the extent of
the right of Asavalaka and his
clan vis a vis the extent of the right of Koniliasi and his
clan, and if Asavalaka had joint right with Koniliasi, the extent of that
joint right. It was also silent about the right of Asavalaka (not Koniliasi)
vis a vis the right of Letagara. The same applies to
the 1994/95 case.
It is agreed that the parties in the 1951 case dide did not include Letagara and
his clan. The subsequent case, the 1970
case, however, included Letagara and
his clan and, the court divided Dole Land between Letagara and his clan on
the one
hand and Koniliasi Jog and his clan on the other hand. The more
difficult issue is whether Asavalaka and his clan were parties
in the 1970
case (1971 appeal case). Letagara says that Asavalaka was a party because
Asavalaka is a grandson of Ngulabatu
and that Ngulabatu was a party on the
same side as Koniliasi Joe a successor to the title of Doreen Ledavetala, in
the
1970 case. I think that argument stems from the fact that in a case in
1951, Asavalaka's grandfather Ngulabatu was named jointly
as party against
one Telokan, not in anyway connected to Letagara and his clan though. That
may be so, but it does not
appear in the record of the 1970 case and the
appeal in 1971. Instead the parties were stated as: "NAME OF DEFENDANT.
KONILIASI JOE OF LIULIU. NAME OF PLAINTIFF: LESILI OF LIULIU." If Asavalaka,
the present defendant, and his clan
were part of the clan of Koniliasi Joe
and therefore party in the 1970 case, represented by Koniliasi, the time for
making
that clear was during the 1970 case itself or failing that, during
the 1994/95 case. The Local Courts were in a position to
inquire into the
consanguinity whereas this Court is not in a position to. Mr. Letagara
declined to attend the 1994/95
case.
The defendant Mr. Asavalaka seemed to believe that as betw between his clan and
that of Letagara, they have customary
right to part of Dola Land,
independent of the right of the clan of Koniliasi Joe. They took their claim
to Chiefs; claiming
against Letagara and his clan. Letagara did not attend.
As Chiefs decision binds only upon written consent being filed, and
Letagara
did not consent, the Chiefs' decision was of no effect. So Asavalaka went to
the North Choiseul Local Court
in 1994. Letagara did not attend. He now says
that the Local Court had no jurisdiction because the case was res
judicata. Asavalaka of course wants to effect that part of the
judgment which gave him (successor to title from Ngulabatu) and his clan
parts of Dola Land given as: "From Gabe to Peba river and up to Susuraporapo
stream and up again to Rokaisapisi
and straight down to Gabe." Letagara can
no longer ignore local tribunals he is now forced to act.
I
dothink that I can act on information outside the record of p of proceedings
of the local courts, to decide whether
Asavalaka was not part of Koniliasi's
party or that he was party, in the 1970/71 case. There is simply nothing in
the
1970 record that clarified how Ngulabatu and therefore Asavalaka was a
party represented by Koniliasi, said to be a successor
in the title of
Doreen Ledavetala. I am therefore not able to say that the parties in the
1994/95 case which included
Asavalaka, were the same as the parties in the
1970/71 case, although I can say that Letagara was a party in both cases. I
also do not think that the rights of Asavalaka, succeeding from Ngulabatu,
have been defined as between him and Letagara
or as between him and
Koniliasi Joe, succeeding in title from Doreen Ledavetala in the past cases.
I decline to make
the declaration asked for by the plaintiff, Mr. Leslie
Letagara, that, "the land case filed by the plaintiff (in that
case
Asavalaka) before the North Choiseul Local Court (the Court) and in which
judgment was delivered and dated 29th August 1995 was barred by
the doctrine of Res Judicata�� I also decline to make
the complementary declaration that the judgment of the Local Court was,
"void and is of no
effect." The originating summons of the plaintiff is
dismissed.
ts are awarded to the defendant Asavalaka against the plainplaintiff Letagara.
This case brings to the fore the need to have much more exha exhaustive
legislation about the jurisdiction of the Local
Court and the Customary Land
Appeal Court, in the determination of right over customary land. Their
jurisdictions in
enforcement of their decisions, interlocutory orders and
other aspects that enhances their substantive jurisdictions could
make them
more effective and would clarify many uncertainties.
Delivered this 22nd day of June 1998
At the High Court,
Honiara
Sam Lungole-Awich
JUDGE
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URL: http://www.paclii.org/sb/cases/SBHC/1998/32.html
