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Tosafu v Baeana [2021] SBLC 8; Land Case 3 of 1993 (13 April 2021)

IN THE MALAITA DISTRICT LOCAL COURT
(SOLOMON ISLANDS)
Civil jurisdiction (customary land)
Land Case No.03 of 1993

BETWEEN: SAMUEL R TOSAFU (Deceased)
Plaintiff

AND: ABUOTA BAEANA (Deceased)
Defendant

Date of hearing: 24^thMarch & 13^th April, 2021
Date of ruling: 13^th April, 2021

Paul Iroota, Philip Taloinao and Stanley Agwainao for the Plaintiff
David Taluiburi, Alfred Taebaea and Patterson Irokona for Defendant

.......................................
RULING

........................................

The Court: This is the ruling on preliminary issues in the case currently before this court. The dispute is between Samuel R. Tosafu (deceased) (as plaintiff) and Basil Osibiata and Abuota Baeana (both deceased) (as defendant).

2. The dispute is over ownership of customary land contested as ILIGU or FANIMANU land situate in North Malaita region. It is referred to the local court by the plaintiff from a decision of a panel of six (6) chiefs made at Maluu on 20 October 1993.
   
3. This court convened preliminary hearing on the matter to check current status and position of the parties and the dispute, and to determine whether the parties are barred by operation of res judicata or similar estoppels based on a 1944^[1] case.
   
4. The 1944 case is a case on Fanimanu land held at Maluu between FIULAUA and ELOA. In this case, Fiulaua and his people made a garden at Fanimanu land and Eloa wishes to charge them for it. In the same case, Fiulaua gave the following evidence:
   

‘Iligu is the beu abu^[2] which was started by KANIMELA. From this akalo spread the following:

ABUNAOLI – FIULAUA

WAU’U - KEDAKWAO

ANIRARAKE - BIRUASI

KWAONAMAOFI - NIUOLOFIA

FAMARAKWA - FANATA

KOKO’O - ELOA’

The decision of the case states:

‘The above are all the beu abu’s out of Iligu. Maekali and Gwaimae will pick up all their old men who will show their own boundaries and then must stop within them’

5. The decision obviously follows Fiulaua’s evidence quoted above. Thus, though not clearly stated in the decision, it can be assumed with confidence that the list in the first column above are the beu abu’s and the list on the second column is a list of those old men (traditional leaders) who represented them whereas Maekali and Gwaimae, whose names also appear in the decision, were Headmen^[3] of their time.
   
6. In another record on the same case^[4] dated at Malu’u on 6 April 1944 before District Officer Michael Foster, the genealogy of KANAMELA (probably the same ancestor recorded as Kanimela in the first record touched on above) is given as follows:
   

The decision of the case states:

‘The ground at Fanimanu therefore belongs to Rinafiu and his heir Ramoalatha and to Irokona. Sukubea and his heir Ganiau have only such rights as accrue to inheritance through the female line. The genealogy was accepted as true and correct by all the parties concerned.’

7. Res-judicata, as defined by the Black’s Law Dictionary^[5] means:
   
   1. An issue that has been definitely settled by a judicial decision.
   2. An affirmative defence having the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the earlier suit.
      
8. In Maena v Saeni^[6], Faukona PJ. states:
   

‘...for a doctrine of res judicata to operate, the required ingredients remains three fold, as Lord Guest uttered in the case of Carl-Zeiss-Stifting V Rayner and Keeler Ltd and Others[3], at page 565G;

"The requirement of issue estopple still remain (1) that the same question has been decided (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised or their privities".

9. And the tests for res judicata as further established by Keniapisia J. in Misiava v Tukinava ^[7] are:
   

‘...(i). Same parties, (ii). Same issues (iii). Same cause of action as have been previously decided by a competent court.’

10. When examined on the question whether both parties’ forebears were involved in the previous case in 1944, Defendant confirms that Fiulaua (complainant in 1944 case) was their man and Eloa (defendant in 1944 case) is not related to the current Plaintiff. Rather, the Plaintiff was his witness in the previous case.
    
11. It follows that the issue of res judicata cannot apply in this case, in particular, because there is no evidence of whom the Plaintiff’s forefather who witnessed for the Defendant is and his testimony in the 1944 case. For res judicata to apply this court must analyse the Plaintiff’s genealogical or custom connection to the previous witness and his actual statement given in 1944 and then apply the rules established in Maena v Saeni and Misiava v Tukinava as set out above on the evidence.
    
12. The Plaintiff’s case in the case now currently before this court is an application in the following terms:
    

‘That you Abuota Baeana, Basil Osibiata and your tribe or descendants not being members of Iligu Fanimanu tribe are not entitled in custom to occupy and settle on Iligu Fanimanu land and have lawful authority in custom to sell, give away or otherwise part with any part of Iligu/Fanimanu or any property on Iligu/Fanimanu land.’

13. He was the successful party before the chiefs in 1993 and his application set out above is in no way matches the requirement for referral in section 12(3) (a) and (b) of the Local Court Act nor has the Form I^[8] “Unaccepted Settlement” been adequately filled and signed by the chiefs to comply with section 12(2) of the Act. These two points have been duly contested by the Defendant. Defendant in fact, raised 11 issues, ten of which were raised against the constitution and conduct of the chiefs and legitimacy of their decision. The ruling of this court must therefore, support a proper referral to the chiefs.
    
14. In his written submission filed during preliminary hearing, Plaintiff contends that FIFIDA and DAMUITAKA, being two males mentioned in the Defendant’s genealogy in the 1944 case and 1993 chief’s decision respectively, are not descendants of Iligu/Fanimanu land. Rather, they assert Fifida was a Bakwa^[9] according to Ailamae^[10] and was killed without leaving any offspring.
    
15. Plaintiff further contends that Damuitaka (whom they claim was mentioned by Defendant before the chiefs in 1993 probably as their/Defendant’s significant ancestor) is a descendant of Buraki land, distinct from Iligu/Fanimanu land which they claim is owned by them. Defendant therefore, they assert should leave Iligu/Fanimanu and occupy Buraki land.
    
16. Plaintiff further asserts that the Defendant is encroaching into other neighbouring tribal lands and using his authority to occupy and use Iligu/Fanimanu land without their permission.
    
17. In this case, the Plaintiff as found on preliminary examination is not the same party as ELOA (defendant in the 1944 case). Further, the issues now raised by the Plaintiff have yet to be definitely and authoritatively decided by a judicial (court) decision. In other words, the issues raised are triable issues in custom yet to be exhausted before the relevant traditional chiefs, and then by this court upon proper referral.
    
18. First issue raised by the Defendant was against copy of the record on the same case dated at Malu’u on 6 April 1944 before District Officer Michael Foster (Defendant Exhibit “3”).
    
19. For avoidance of doubt, the two 1944 decisions referred to at paragraphs 4 and 6 above (Defendant Exhibit “2” and “3”) are true decisions of the District Officer’s court (equivalent to a Magistrate Court). Copies of these two decisions are also kept with the Malaita Local Court office at Auki, Malaita Province under Malaita District Land Case Files (indexed as LC/MD/# where # refers to the number of the file). These copies are believed to be deposited with and preserved by the Local Court (formerly, Native Court) office since the days of Colonial Administrators and District Officers. The copy questioned by the Defendant was previously issued by clerk of the local court endorsed/certified with current Malaita Local Court official stamp.
    
20. Defendant had been reluctant to attend recent chief’s settlement with the Plaintiff upon advice of their lawyer on estoppel based on the 1944 decision. Such advice is wrong for reason that decisions on customary land disputes are judgements “inter partes” which binds only the two parties to the case as opposed to judgements “in rem” which binds the world at large. This is trite law established by the High Court in the case of Talasasa v. Paia^[11]. In this case, his Lordship Daly CJ. states:
    

‘In Solomon Islands 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 judgments are then, in my view, judgements inter parties’

21. As found above, the Plaintiff is not same as ELOA of the 1944 decision therefore, res judicata cannot apply. Whether the Plaintiff has no genealogical or other custom connection to the ELOA in the 1944 case is true or not can also be determined by chiefs of the area of the land knowledgeable in the custom facts of their area including genealogical connections.
    

The orders of this court accordingly,

ORDERS

1. Set aside the Chief’s decision of 20 October 1993.
2. Refer both parties to an agreed panel of chiefs within the locality of the land with order for both parties to equally share the cost of the chief’s settlement.
3. Order the Chiefs to also hear stories of party witnesses from neighbouring lands/tribes and to survey the land, record the boundary marks and tabu sites within as requested by parties and attempt to determine the issues touched on in this ruling.
4. The party who cannot accept the decision of the chiefs can refer the dispute to the local court with order for the chiefs to produce minutes of their hearing together with the Form I “Unaccepted Settlement”.
5. Parties to bear own costs.
   

Right of Appeal Explained

Any of the parties to this case not happy with the decision of this court can appeal to the relevant court within ninety days as of the date of this decision

THE COURT

Justice Nelson Nee (Acting Vice President)
Justice Eddie Wasi (Member)
Justice Philip Waletobata (Member)
Officer Hillary D. Fioru (Court Clerk)

^[1] See Case on Fanimanu land tendered as Defendant Exhibit “2”
^[2] Beu Abu is the native term for the “men’s house” where men conduct their affairs segregated from the womenfolk and children. In the 1944 case it also implies minor tabu sites started by descendants of Kanamela, the founder of Iligu, probably the Principal tabu site in the area.
^[3] Maekali and Gwaimae were confirmed Headmen of the British Solomon Islands Protectorate Government (BSIPG) by the Plaintiff during preliminary hearing.
^[4] See Case on Fanimanu land tendered as Defendant Exhibit “3”

^[5] 8^th edition
^[6] Maena v Saeni [2015] SBHC 83
^[7] Misiava v Tukinava [2020] SBHC 92
^[8] See Form I containing the decision of the chiefs dated 20 October 1993 filed 29 October
^[9] According to Plaintiff’s version, ancestors who first discover or first settle on newly found land originate or descend from the bush (inland) and migrate coastward. A bakwa then, they say, is an ancestor who arrives by the coast and is therefore, a foreigner and cannot discover and own land. This may not be the case in other parts of Malaita and should not be taken as the only custom of Malaita regarding first discoveries and first settlements.
^[10] Ailimae refers to custom stories or oral history being passed down from generation to generation.
^[11] Talasasa v Paia [1980] SBHC 2; [1980-1981] SILR 93