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Ramo v Olemaoma House of Chiefs [2010] SBHC 19; HCSI-CC 56 of 2009 (26 May 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 56 of 2009

BETWEEN

GABRIEL RAMO
Claimant

AND

OLEMAOMA HOUSE OF CHIEFS
First defendant

AND

PLACID SADE
Second Defendant

Mr Radclyffe for the Claimant
Ms Bird for the Defendants

Date of Hearing: 14th May 2010
Date of Judgment: 26th May 2010

Judgment

1. On the 30th October 2008 the Olemaoma House of Chiefs (the First Defendants) made a decision about Buirakwaena Land which is on Manaoba Island in Malaita Province. This case is not about whether the Chiefs made the right or the wrong decision, it is about whether they were entitled to make any decision at all. The answer to that question is provided by consideration of the legal principle of res judicata.
   
2. Res judicata applies by operation of law, it is not a principle where the court can exercise discretion one way or another. What it means is where a court of competent jurisdiction has made a decision, the decision or judgment is final and conclusive as to the rights and duties of the parties involved. There is an absolute bar to any subsequent case if the same issues, the same parties and the same cause of action are raised in that subsequent case. Of course, res judicata does not apply where there is an appeal from one court to another, from a subordinate court to a higher court.
   
3. Does the principle apply to matters before Chiefs? It might be said after all that a hearing before the Chiefs is not a court case as such. It might also be said that the exclusive jurisdiction given to the Local Courts by section 254 of the Lands and Titles Act [Cap 133] and the operation of Local Courts as set out in section 12 of the Local Courts Act [Cap 19] would preclude the operation of the legal principle of res judicata. This question has been answered comprehensively in a number of cases from Tavea v Paripao House of Chiefs[1] to the more recent Court of Appeal case Majoria v Jino[2]. Chiefs cannot go behind previous decisions of a competent court whether it is the Local Court, Customary Land Appeal Court or the High Court. They are bound by the operation of res judicata.
   
4. What that means is if there has been a previous decision where the same issues, the same parties and the same cause of action, have been litigated and decided then the Chiefs cannot re-open the case.
   
5. Before I look at the facts in this case it must be said, I believe the Chiefs all around Solomon Islands carry out an important function resolving disputes involving custom and in particular, resolving disputes about customary land. Their work is extremely important and they go about it largely unappreciated but with good grace. They bring an enormous amount of knowledge and experience to their task and I, for one, would be very, very cautious in ever saying they had gotten something wrong. I would therefore stress again, in this case the question is not did they arrive at a wrong decision, rather the question is should they have arrived at any decision or, should they have even agreed to hear the dispute, or put another way, were they bound by a previous case?
   
6. There was some confusion with the defence case initially, caused by the wrong exhibit being attached to Alick Buga’s sworn statement filed on 20th April 2009. It would seem that the Malaita Local Court (MLC) case originally attached related to a dispute about a reef. The Claimant in this case does not dispute that claim. It is not part of what I need to consider. The exhibit that should have been attached was one relating to Buirakwaena. The issue was further complicated by Mr Buga’s evidence itself. Mr Buga was hard of hearing but he was assisted by my associate Mr Simeon Davis. It seemed clear from Mr Buga’s evidence that he was saying the statement was his, he had signed it and it was all true. However in cross examination he said that there was no Magistrate (or Commissioner of Oaths) present when he did sign. His evidence in cross examination was he signed the document, which he could not read, and it was later taken away and stamped. I ruled that it would be unsafe to let the sworn statement in as evidence.
   
7. Mr Placid Sade gave evidence and was cross examined as well. When asked by Mr Radclyffe he said that his tribe was Ferata’a. He added, Ferata’a and Ulufera tribe are the same. He agreed that Mimidi was a member of the same tribe. He confirmed what he had said when re-examined but in a slightly different way. He said, "Ferata’a same tribe with Su’u". It was just one tribe. "Mimidi for Su’u tribe which you call Ulufera". In his sworn statement[3] he says that in 1970 Mimidi was the spokesman of the Ferata’a tribe. He confirmed Mimidi was a member of the Ferata’a tribe.
   
8. We then turn to the previous High Court cases produced by the Claimant[4]. The very clear judgment of His Lordship the Chief Justice traces various cases heard by the MLC and the Malaita Customary Land Appeal Court [5] (MCLAC). There is no dispute the Defendant in one case, Gabriel Lamani, was the father of the Claimant in this case. His Lordship relates the history of cases involving Mimidi and Lamani. He concludes paragraph 3 on that page by saying, "The doctrine of res judicata applied to that land as finally determined between the parties" . The "that land" in question was Buirakwaena land.
   
9. An apparent stranger to these proceedings is introduced in another case His Lordship refers to in the shape of one Paul Maenu’u. Mr Maenu’u had commenced proceedings against Gabriel Lamani Ramo. Mr Maenu’u was shown by His Lordship’s clear analysis to base his claim on that of Mimidi. In fact then it turns out that Mr Maenu’u clearly wasn’t a stranger. A decision from the MCLAC went in favour of Gabriel Lamani Ramo. Mr Maenu’u did not appeal that decision, instead it appears the whole dispute was settled, commendably, in custom. Mr Maenu’u was still, however, bound by the MCLAC decision.
   
10. So here we have a situation where the late Mimidi represents both the Ulufera and Ferata’a tribes. His case against the Claimant’s father has long been decided. Mr Maenu’u acts in Mimidi’s name in a case against the Claimant. A decision in that case has been handed down by the MCLAC. The daughter (or so I believe) Alamoa Mimidi on behalf of the Ulufera tribe starts a case in the High Court against several defendants including the Claimant. She is told by His Lordship the Chief Justice in the 2004 case that the matters she raises are res judicata. Mr Placid Sade now throws his hat in the ring by going to the Chiefs. He clearly admits he is of the same tribe as Mimidi and the dispute involves exactly the same land. There is no doubt in my mind that the issues he raised (with his co-complainant Mr Alick Buga) are exactly the same as those raised by Mimidi in the 1970’s and by Mr Maenu’u in 1989 and finally by Alamoa Mimidi in 2004. At one point His Lordship commented[6], "The door for litigation under the Local Courts Act........now closed". I suppose I can only add that I hope this case now bars and double deadlocks the door which will then remain firmly shut.
    
11. It is right, as put forward by the Claimant, the (Olemaoma) House of Chiefs had no jurisdiction to determine ownership of Buirakwaena land as between Gabriel Ramo and Placid Sade on the grounds of res judicata.
    
12. I can understand the pressure that the Olemaoma House of Chiefs was put under. During my time as Principal Magistrate on Malaita I would daily receive copies of letters sent to the Chiefs to re-open this or that case. The Olemaoma Chiefs did the right thing initially, they asked the Local Court Officer for advice. I think they were slightly let down by the rather ambiguous advice they received. The letter dated 30th January 2008[7] should have also carried a caveat along the lines of, provided you are satisfied there have been no previous court decisions affecting the parties and the land. Mr Diau Mauga in his sworn statement tries to justify the decision of the Chiefs to hear the case but clearly it was wrong for the Chiefs to become involved as they did even if they felt they had been "directed" to do so. Whilst they may be right, and I emphasise again I am not deciding that one way or the other, and they merely confirmed the 1970 MLC decision, they did not look at the later decisions in that case by the MCLAC.
    
13. I would just add here that it is probably unwise in cases such as this one for the Chiefs to be represented by the same lawyers as the "main" Defendant. If they are they may end up arguing the unarguable and that may have a consequence in costs.
    
14. In all the circumstances I have no option but to order that the determination of the Olemaoma House of Chiefs made on 30th October 2008 that Placid Sade and Alick Buga on behalf of the Ulufera and Ferata’a tribe own Buirakwaena land, Manaoba Island, Malaita Province, be removed to the High Court and be quashed.
    
15. I was not addressed on the question of costs. I will leave the question open and seek Counsel’s views when I hand down my judgment. As a preliminary view, and I make it clear I have heard no arguments on costs, I would be prepared to make an order in the Claimant’s favour on the basis that the Second Defendant pays 75 percent of the costs and that the First Defendant pays 25 percent. As I have said, I have heard no arguments about costs. It maybe that costs are not an issue. I will leave it at that for the time being.
    

Chetwynd J

^[1] HCSI CC 196 of 1999
^[2] CA CAC 36 of 2006
^[3] See paragraph 2 of sworn statement filed 20^th April 2009
^[4] Alamoa Mimidi –v- Lolo/Ngalau Dev Co Ltd & anor. HCSI CC No 75 of 2004
^[5] See at page 4 of the judgment
^[6] See page 7 of his judgment
^[7] See exhibit “DM1” to the sworn statement of Diau Mauga dated 15^th April 2009