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Ramouda v Suifa'asia [2011] SBHC 59; HCSI-CC 330 of 2007 (9 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 330 of 2007

BETWEEN

BARNABAS RAMOUDA
Claimant

And

Rev SAMUEL SUIFA'ASIA and OTHERS
(Rep Descendants of Mamasau & Ors)
Defendants

Mr Rano for Claimant
Mr Nori for the Defendants

Date of Hearing: 5th August 2011
Date of Judgment: 9th August 2011

RULING

1. This case came before me in May this year as an application to strike out the Defence. In the ruling dated 14th June it was said the Defendants did not appear to be very interested in defending the case. Delays and prevarications on their part have been condemned in costs. The issue of res judicata was raised and a preliminary hearing to deal with that question was organised. Directions were given. I do not know why I was surprised when it became clear at the hearing the Defendants had not made any effort to comply with them.

2. There is absolutely no doubt that res judicata can be relevant in cases dealing with customary land ownership. Such cases almost invariably involve judgments inter partes rather than judgments in rem. In simple language the judgment binds those who were involved (inter partes) rather than the world at large or everyone else (in rem) [1]. In order for res judicata to be relevant certain conditions apply. They were set out by the Court of Appeal [2];

"To make out estoppel 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 identity of parties and of subject matter or "cause of action"

3. There is no doubt that those conditions are satisfied in this case and the earlier judgments contained in the court book provided by the Claimant clearly demonstrate, as against the Defendants, he is the owner of Babalakona land. He is entitled to the declarations sought in the Amended Claim filed 4th July 2008.

4. Unfortunately that is not an end to the case. The declarations can only now apply to the land which was contested in a case in January 1952. It was heard by a Deputy Commissioner of Her Britannic Majesty's High Commissioner's Court of the Western Pacific. Babalakona was the land which is "bounded by the shore, the Kwaisatalua River, the Anuradi River going back as far as the Babalakona Hills"[3] . The reference to Anuradi River is actually the Aurade River. If we then fast forward some 38 years the Malaita Local Court is asked by the then Chief Justice to decide what is the exact line of the high ground known as the Babalakona Hills [4]. They did a survey and reported back to His Lordship. The report is set out on page 92 of the court book. What the Justices said was the line of high ground known as the Babalakona Hills was the line which more or less follows what is now called the Busurata Road. It is a road I have driven several times and it follows a ridge with the Langa Langa Lagoon to the south and the Kwaibala River to the north. It is the area of land shown coloured green on the map at page 100 of the court book.

5. The High Court Register reveals the case which gave rise to the Chief Justice's order in 1990 concerned the issue of an order of attachment, or civil arrest warrant. It is not known what happened in the case, the file has gone missing. The copy documents show the parties were Siru Luluakalo (he was applying for the arrest) and Geobauta.

6 We now return to 1952. In December another Deputy Commissioner for the Western Pacific, J F Bartle Esq, heard a case. The Plaintiffs were Mamasau, Roko'ibua, Geobauta, Fifilota and Morisoe. The Defendants were Siru Luluakalo and Ms Buagalena. The court was asked to declare the exact boundary of Babalakona as declared by the earlier court as belonging to Ms Buagalena. The decision in that case is set out at pages 47 and 48 of the court book. Deputy Commissioner Bartle confirmed the boundary as that described by Deputy Commissioner Allan in January case.

7. At page 43 of the court book is an interesting piece of evidence from Siru Luluakalo. Paraphrased he says that he purchased a second area of land from Ms Buagalena. Without going into great detail, the land was north of the line formed by the Kwaisatalua River and the Busurata Road. It is probably the area coloured purple on the map at page 102 of the court book. This piece of evidence caused some consternation for the Plaintiffs in the case. The next day they asked Deputy Commissioner Bartle if they could give some evidence about that land. Roko'ibua was sworn. He was asked by the Court, "Has this piece of land you wish to talk about and to dispute ownership of, anything to do with the land defined by the Court in January case or the land called Rafia which is under dispute in this case?". Roko'ibua answered, quite truthfully "No". Whereupon the Deputy Commissioner said, " In that case it is of no relevance to the case in issue and as it has no bearing even on the case which is present before the court, the court does not wish to hear anything further about this land but will confine itself to the case in hand. Should the Plaintiffs wish, at a later date, to take legal action with regard to this other land, which is not now in dispute before this court, they may, of course, do so."

8. It is unfortunate the court did not pick up on the indication from the evidence that Babalakona land was more extensive than the area litigated about earlier in the year. The reason was probably because the December case seemed to concentrate on a smaller area inside that land. The Plaintiff called it Rafia. It was an area on the coast [5]. He was saying the land had been jointly owned by the bush and saltwater people. Deputy Commissioner Bartle says in his judgment:-

"The second point – with regard to the joint ownership by bush and saltwater natives of this piece of ground - was extensively investigated by this court in case MC/2/52 in January, as can be seen by the evidence and the judgment therein, and it was clearly established in that action that this joint ownership had in fact ceased some time before Bubuhera's death and that the sole ownership had vested in Bubuhera and his immediate line and that on his death this ownership had passed unreservedly to his daughter, Buagalena, one of the defendants in this present case"

9. Deputy Commissioner Bartle had given a clear indication of what the Plaintiffs (in the December 1952 case) should do if they disputed Siru Luluakalo's and Ms Buagalena's claim to ownership of land which was bordered by the Kwaibala River to the north, basically the purple land. However, as can be seen from the above, his judgment also contained the clear warning that the supposed joint ownership by bush and saltwater people had been dealt with, and disposed of, in the January case. Any future case about different land based on this "joint ownership" would meet the same fate. That might explain why no case has been referred to concerning the purple land, as between the Claimant and the Defendants.

10. There was a case in the Malaita Local Court [6] but it was between various factions or tribes on the defendants' side. It is not entirely clear what areas of land were involved but a boundary feature was certainly the Kwaibala River.

11. If there has been no previous decision involving the parties in this case and the "purple" land there is not a lot to show the principle of res judicata can be relied on in respect of that land. It does not mean the findings made in 1952 are irrelevant or would not affect the outcome of a case involving the parties and ownership of the purple land. If it were argued before the Chiefs or the Local Court or the Customary Land Appeal Court that any of the Defendants had purchased Babalakona land from the descendants of Theelder, Mamasau, Mausai, Finifota or Takae they would not succeed. They could not succeed because the 1952 case says these people came from the "Rarata clan" and they have lost all rights to claim any interest in Babalakona land [7].

12. How the Defendants claim ownership of Babalakona land north of the Kwaisatalua River and the Busurata Road should have and would have been clear had the Defendants complied with the directions given on 14th June. They were served with copies of the Claimant's sworn statement filed on 15th July. They had the bundle of court documents and the large scale maps filed by the Claimant on same day. Had the directions been complied with the real issue would have become clear. The real issue concerns the ownership of the land north of the Kwaisatalua River and "the line of high ground called the Babalakona Hills" and south of the Kwaibala River. No one seriously disputes that it is part of the larger area known as Babalakona Land even if small areas within Babalakona are known by different names. The Defendants have known since 1952 the Claimant's line, through its purchase from Buagalena, claims ownership of the purple land. Instead of filing a defence which intimates they dispute the Claimants assertion they own the whole of Babalakona they could have, should have said, we do not dispute the land awarded in the 1952 cases we dispute land adjoining it which has not been before a court. If they had complied with the directions they could have set out their position in sworn statements. Because the Defendants have failed (again) to comply with directions they shall pay the costs of the hearings on 17th May and 5th August reason. Those costs are to be taxed if not agreed.

13. The Claimants are not entirely blameless. They have known or should have known, all the cases they rely on left undecided the ownership of the purple land. Even the memorial dated 17th December 1952 makes that obvious. The diagrammatic sketch map (which seems to have been registered at the same time as the memorial) could not be clearer. It says parts of Babalakona have not been the subject of civil action. It even mentions who might have competing claims.

14. Unless there are cases which have not yet been disclosed the Claimant can only partly succeed in his claim. If there are no other cases then the only way ownership of the purple land, as between the parties in this case, can be resolved is by starting the process set out in the legislation and which is too well known by everyone for me to have to describe in detail here. Suffice it to say it starts with the Chiefs.

15. The matter will be adjourned to 8th November 2011 at 9:30 in the morning. The hearing will deal with evidence of any relevant cases yet undisclosed. Even if there are other cases an order will be made along the lines suggested at paragraph 1. The parties should agree an order in respect of the land where ownership is beyond dispute. If they cannot agree one then the court will take the matter out of their hands and make its own order. If there are no further cases to disclose the parties should consider what should happen in this case. It would be sensible to conclude these proceedings with an order about the "undisputed" land and one in relation to any remaining costs. There seems to be no point in adjourning these proceedings to wait for a case to complete its passage through the customary land dispute process. The hearing has been listed so far in the future because Mr Nori may be indisposed until November.

16. Finally, this case once again raises the importance of full disclosure in civil proceedings. Counsels are advised to read the provisions as to disclosure set out in Chapter 11 of the Solomon Islands Courts (Civil Procedure) Rules 2007. It is beyond any doubt, all the parties in every case have a duty to make full disclosure. It is not a discretionary requirement, something the parties can do if they feel like it, it is a duty.

Chetwynd J

^[1] See for example Talasasa v. Paia and Another (1980/1981) SILR 93 and Kafona & Ors v Aute’e & Ors High Court Land Appeal case 1 of 1998
^[2] Majoria v Jino Court of Appeal Civil case 36 of 2006
^[3] See page 20 of the court book.
^[4] See the order set out at page 90 of the court book.
^[5] See the area coloured blue on the map at page 101 of the court book
^[6] Malaita Local Court Case No 1 of 1982 between Kinilofea and Gaote’e v. Rokaibua and Maefaione
^[7] See page 31 of the court book and Deputy Commissioner Allan’s judgment