In October of 1996, the current
Appellants commenced a land dispute case the Chiefs Committee againsgainst
the current
Respondents over what was described as �rights of inheritance
occupational rights over Biranakwao and
Kwaruiasi Lands�.
The Respondents refused to attend the Chiefs hearing arguing (albeit
erroneously) that the matter had already been
finally determined in case MLC
18/84. The Appellants took up the matter further with the Malaita Local
Court. It was
heard as Malaita Local Court Case Number 2 of 1997. The
Respondents (defendants before the Local Court) reiterated their argument
inter alia, that the matter was res judicata, relying on case MLC 18/84.
Their argument was accepted by the Local Court
and the claim of the
Appellants (Plaintiffs) dismissed. The Local Court also observed, although
this appears not to have
been raised in evidence and argument before the
said court (see copies of transcripts of evidence and judgment of the Local
Court reproduced at pages 21 to 24 of the Appeal Records) that in custom
there was no such thing as primary or secondary
rights existing among
landowning groups of customary land in Malaita.
The Appellants took the matter
further to the Malaita Customary Land Appeal Court (��). Eight points
were were raised
on appeal. These included the grounds (i) on res judicata, that
the Local Court erred in law in finding that the doctrine of
res judicata
applied to the case before it, and (ii) the issue of the rights of ownership
as between Atonia, Sade and
Billy Maoma were fresh issues between the
parties yet to be argued before the courts and finally determined (see pages
19-20 of the Appeal Records).
The MCLAC gave judgon 17
November 1997, in favour of the Respondents. It again ruled, inter alia,
that the Local
Court was correct in applying the doctrine of res judicata
and that the issue of succession was not separate from the issue
of
ownership. It went further to point out that the Appellant could only argue
about the issue of succession over Billy
Maoma�s share but not that of
Atonia and Sade.
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The Appellant now comes to this
Court for relief on grounds essentiallt the findings of the MCLACMCLAC (and
the Malaita
Local Court), on the doctrine of res judicata were wrong in law.
The Respondents argue otherwise.
With respect, I find the
Appellants to be correct and that their appeal should beld. The
doctrine of e of res judicata
had been amply discussed by this Court in numerous
cases already. In Talasasa v. Paia and Another (1980/1981) SILR 93 at
page 100-104, his Lordship Daly CJ. discussed in detail the application of
that doctrine to decisions
involving customary land disputes. His Lordship
states:
Solomon Islands cust customary land
cases usually involve the interests of a line in a particular piece of land
as opposed
to the interests of another line. There is very often no
determination of who falls within the line and a degree of vagueness
about
the extent of the land under discussion. For my part, I would be most
reluctant to hold that a judgment in a customary
land case is a �judgment in
rem� and binding on the world at large. After consideration of the
authorities, I am happy
to conclude that they do not in any way require me
to do so.
These judgmentsthen, in
my view, jud, judgements inter parties�
His Lordship then went on to
identify the three essential ingredients in which the doctrine of res
judicata would apply
in �judgments inter partes�:
(i) &nb) &nnbsp; &nsp; aniearlasr c
in which hich the cause of action or point in dispute was really the same;
(ii)   &nb p; al ina determinatiination by a court of that cause of action or point on its merits;
(iii) &nbs; &nbhp; tis ra ofng the the same cause of action, or the same point which has been distinctly put in
issue,
by a party who has had the action or point solemnly and with
certainty ed ag him.an>
These principles had been
adopted by this Court in more recases (see David Lenga v.ga v. Joses
Lote (unreported) Civil Case number 21 of 1995 judgment delivered on
18 May 1995; and Aziel Laealaha v John Tohuinoni (unreported) Land
Appeal Case number 8 of 1995 judgement delivered on 13 October 1995).
I had already set out for
convenience in this judgment who were trties to case MLC 18/84, re4, relied
on by the Respondents
as establishing the doctrine of res judicata to this
case. That was done primarily to demonstrate that the parties to that
case
were not the same parties as sought to be relied on by the Respondents in
this case. In the case MLC 18/84, the
parties were Ata Salani and David
Idui of the one part, and Billy Maoma, Atonia and Martin Sade of
the other part. The decision in that case accordingly could only be binding
as between the Plaintiffs and Defendants
in that case; namely Ata Salani and
David Idui and their tribes on one part, and Billy Maoma, Atonia and Martin
Sade
and their tribes on the other part. It does not bind Billy Maoma for
instance, that is, stop him from taking any case against
the other two
defendants to establish what rights of ownership in custom each of them
might hold. It is not in dispute,
and the Appellants in this Court nor the
courts below, deny, that in the case MLC 18/84 and CLAC No. 5 of 1985, the
issue
of ownership of Kwaruiasi and Biranakwao Lands as against Ata Salani
and David Idui had been awarded in favour of the three
Defendants. In the
present case however, the Appellants now wish to identify in custom what
exactly are their rights
of ownership as amongst themselves (as the
recognised landowners). It seems the Appellants are alleging that primary
rights of ownership are vested in them whilst merely secondary rights vested
in the Respondents. They argue that issue had
never been determined in any
court of law previously and that accordingly the doctrine of res judicata
does not apply.
Respectfully I agree. The proper order in the circumstances
is to allow the appeal and remit the case back to the Malaita Local
Court to
determine the question of rights of ownership as between the three
landowners de novo.
In my respectful view some of
the things thellants (who were the Plaintiffs in the Local Court) may
y
have to clarify
in their claim, is whether their dispute against the
Respondents (the Defendants in the Local Court) include any particular
area
of land within Kwaruiasi and Biranakwao Lands, as well as the question of
rights of ownership (referred to by the
Appellants in their claim as the �degrees
of ownership�). Some concern was raised regarding the use of the terms
�primary and secondary rights� as being of foreign importation and
not relevant to the context of Solomon Islands culture and custom. With
respect however,
that is not necessarily so, provided it is clear in the
mind of the parties and the court what exactly is meant by the use
of those
terms. Similar concerns were raised in other cases but otherwise it seems
the distinctions have general application
where the terms are clearly
understood in relation to the rights identified (see the cases of Buga v.
Ganifiri (1982) SILR 119; Zephaniah Kinisita v. Orkley
Ramolele and Augustine Maemarine Land Appeal Case No. 1 of 1996
judgement delivered 30 September 1996; and Narovo v. Peter Geli, John
Soga, Harold Sai and Solo Semi Land Appeal Case No. 4 of 1996 judgement
delivered 2nd May 1997). It would be important therefore for the
parties who use those terms to explain to the court what exactly is meant
by
those terms so that their use is understood by all.
It may be of interest and
relevance for instance, to refer to the Report of theial Lands
Commission sion written by Colin
H. Allan in 1957, headed �Customary Land
Tenure in the British Solomon Islands Protectorate�, submitted to this
Court by learned Counsel Mr. Radclyffe, in which the learned Author sought
to explain what primary
interests and secondary interests might mean. I
quote the relevant parts in full because these may assist the parties in
having a better understanding of the use of those terms:
�6. idualreste
of m of members of land groups mups may be divided into two kinds, primary and
secondary. Primary
interests are usually derived by inheritance, though in
some instances they may be acquired by purchase or some customary mode
of
transfer. Only members of the actual fine within the land group can hold
primary interests. Each member of the line
is regarded as having a joint and
equal primary interest in the actual soil of the land, and if on the coast,
of the
reef which adjoins it. Such interest differs from those interests
which each member of the line has acquired in the land by
his own efforts.
Normally such interests constitute a right to use specific plots. The method
of establishing such interests
differs for persons holding primary as
against secondary interests.
7. ;&nbssp; It i>It isl forl for
members of the the line to confide jointly the guardianship of their primary
interests to the head
of the line, whexpeco consult all primary
interest holders if a if any many major transfer of interest in the land is
contemplated. The essential characteristic of a primary interest is that the
holder can clear virgin forest for the purpose
of growing subsistence crops
without seeking anyone�s permission, providing he does not interfere with
the cultivation
of others. If cash crops are to be planted, it is becoming
usual for a man to be required to consult with other primary interest
holders.
8.  ondacy interests
are usually no more than rights of usage, and never constitute an interest
amounting
to ownership in the actual soil. They areired r by
o secondary kinship relationstionship thip to memo members bers of the line,
or by seeking
and receiving permission to cultivate a plot of land, by inheritance, or by
some customary mode of transfer.
Secondary interests can sometimes be,
converted to primary interests if every primary interest holder dies out.
ORDERS OF THE COURT:
1. &nbbsp;& &nsp; Usp; UPHOLD APPEAL.
p clasoNormaNormaNormal" stl" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
2. SET ASIDE ORDERS DERS OF THE MALAITA CUSTOMARY LAND APPEAL COURT DATED 17 NOVEMBER 1997.
3. p;&nbbsp; REMIT CASE BASE BASE BACK TO
THE MALAITA LOCAL COURT TO BE HEARD DE NOVO ON THE CLAIM OF THE PLAINTIFF.
(Note: not tit rematters, subject of-course to any usual
grounds of objection whic which mayh may be r be raised, whether
the said local court is
comprised of the same local court justices or not, as the issues in this
case had not yet been
fully agitated before the said court).
4. THE LANTS TO HAVE THEIR
COSTS IN THIS APPEAL.
THE COURT
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