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Ogali v Maemarina [2024] SBCA 26; SICOA-CAC 19 of 2023 (25 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Matelibore Island is one of the Gwa’ata Islands that are customary land in the Langalanga Lagoon in Malaita province. The appellants to this appeal (Linus Lino Ogali and John Sa’alimae of the Feratalona tribe) on the one hand and the respondents (Augustine Maemarina and Siosi Dioko of the Kwao tribe) on the other hand are in dispute about its ownership.
2. In accordance with the sequential process prescribed in the Local Courts Act s 12 and the Land and Titles Act ss 254-257 decisions have been made as follows –
   • (i) on 1 December 2011 a House of Chiefs made a settlement in favour of Maemarina and Dioko;
   • (ii) on 17 April 2023 the Malaita Local Court found that Ogali and Sa’alimae on the hand and Maemarina and Dioko on the other had equal rights of ownership of the land;
   • (iii) on 30 October 2018, in an appeal and a counter appeal against the Local Court decision, the Malaita Customary Land Appeal Court quashed the decision of the Local Court and awarded ‘the primary right of ownership’ to Maemarina, Dioko and members of their tribe or line; and
   • (iv) on 2 June 2023 the High Court dismissed Ogali and Sa’alimae’s appeal against the CLAC decision.
3. This is an appeal pursuant to s 257 of the Land and Titles Act against the High Court’s decision. There are now two grounds of appeal –
   • (i) that the High Court erred in law in upholding that there was a 1993 Langalanga House of Chiefs decision of ownership of Matelibore land; and
   • (ii) that the High Court erred in law in upholding the finding of the CLAC against the appellant of the evidence of one Abraham Osifera in Civil Cases No 3/71 and No 26/72.

In oral submissions counsel for the appellants said that ‘and No 26/72’ had been inserted into the second ground by error, and that he did not rely on those words.

4. The CLAC found –
   • (a) that the Kwao people (ie Maemarina and Dioko’s ancestors) first discovered Matelibore;
   • (b) that both the Kwao and the Feratalona had tambu sites on the island;
   • (c) that since the Kwao tribe was the first discoverer, the Feratalona settlement and cultural practices there were ‘on permission only by’ Maemarina and Dioko.

It declared that the Maemarina and Dioko and members of their tribe or line had ‘the primary right of ownership of Matelibore Island’.

5. Ogali and Sa’alimae appealed to the High Court against the CLAC decision. Section 256(3) of the Land and Titles Act provides -
   • (3) Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.
6. The High Court appeal was brought within time on the ground that the CLAC had failed to conduct a fair and impartial hearing in five respects. The first two of these concerned the CLAC’s use of a determination made by a Panel of Chiefs in 1993. The third related to the CLAC’s use of evidence in a matter described as ‘Civil Case no 3/71’. The fourth related to the CLAC’s handling of allegations of bias and/or criminal conduct on the part of the Chiefs who made the settlement in 2011. The fifth related to CLAC’s having taken untrue evidence into account.

CLAC’s use of evidence in other proceedings

7. CLAC observed –
   • 21. This is a word against word case. Both parties adamantly maintained that their claim of ownership of Matelibore should be preferred than the other. Therefore, the Court has to look for other corroborating evidence to determine which party’s version of case is recognized and entrenched.
   • 22. Fortunately, we note these two documents. First, the 1993 Langalanga House of Chiefs’ finding on the ‘Bina Harbour Assessment’ and second, the Civil Case No 3/71 dated 10/11/1971.
8. CLAC was allowed to use evidence that was adduced before the Langalanga Panel of Chiefs, as opposed to the panel’s determination. Similarly, it was allowed to use genealogy evidence and evidence of migration routes adduced in ownership proceedings in respect of other customary land. The High Court was correct in saying –
   • 17. If decisions of previous cases, though not concerning Matelibore island the subject of this appeal, but some evidence had touched on the subject land, then of course the CLAC was entitled to refer to it.

Panel of Chiefs (1993)

9. In 1993 the Commissioner of Lands wished to purchase various customary lands pursuant to s 60 of the Land and Titles Act for the purposes of the Bina Harbour development. Pursuant to s 61 of that act the Commissioner appointed an Acquisition Officer to act as his agent of the purposes of the acquisition. By s 62(b) the Acquisition Officer shall –
   • (b) make a written agreement for the purchase or lease of the land required with the persons who purport to be the owners or with the duly authorized representative of such owners.
10. The Acquisition Officer appointed Panels of Chiefs to assist him in identifying the persons with whom he should make should agreements and to whom purchase moneys should be paid. In 1993 one of those panels, the Langalanga Panel, determined that the persons entitled to sell or lease Sililiu Island were Maemarina (one of the respondents to the appeal now before the Court of Appeal) and the Kwao tribe. Counsel for the appellants told this court that Sililiu and Matelibore were different lands. Counsel for the respondents did not have instructions on this point.
11. On 30 May 1996 the Principal Magistrates Court (Malaita) held that the appointment of Panels of Chiefs to determine those questions was not part of the acquisition process prescribed in the Land and Titles Act, and, relevantly, that the acquisition process undertaken with respect to Sililiu Island was invalid (Acquisition Appeal No 5 of 1995).
12. The High Court agreed with the Magistrates Court that the process for the sale or lease of customary land to the Commissioner of Lands in Part V Division 1 of the Land and Titles Act is separate and distinct from the process for determining ownership of customary land in the Local Courts Act and Part XXVIII of the Land and Titles Act. That is correct.
13. The High Court observed, correctly, that the Magistrates Court had no power to invalidate ownership determinations made pursuant to the Local Courts Act and Part XXVIII of the Land and Titles Act. Nor did the Magistrates Court purport to do so.
14. The first ground of appeal should be dismissed because the High Court did not uphold the Langalanga Panel of Chiefs’ determination of ownership of customary land.

Evidence in Civil Case No 3/71

15. Civil Case No 3/71 did not concern Matelibore Island. It concerned Bina customary land.
16. The respondents to the present appeal (Maemarina and Dioko) were not parties to Civil Case No 3/71. However, the genealogy of Dona (the biological uncle of Ogali, one of the appellants in the present case) was in issue.
17. In assessing the evidence Ogali gave about his ancestry and their migration route in the Matelibore ownership dispute, CLAC took account of inconsistencies between that evidence and (a) Dona’s evidence in Civil Case No 3/71 and (b) evidence Ogali had given before the Langalanga panel of Chiefs. (It also took account of inconsistencies between the evidence about Dona’s ancestor Otoifafo that Ogali gave before the Langalanga panel of chiefs and the evidence about Otoifafo that Jesper Willie gave in Civil Case No 26/72. However, this is not challenged in the second ground of appeal.)
18. Counsel for the appellants submitted that the High Court made ‘an error of fact and law’ in paragraph 19 of its judgment in two respects. The first is that it said some of Dona’s evidence was put before CLAC by Osifera as his spokesman. The appellants contend that Osifera was not Dona’s spokesman. The second is that what the High Court said in that paragraph about Osifera being Dona’s spokesman is inconsistent with what it said later in the same paragraph – that Dona was a witness for Sisili (the defendant in Civil Case No 3/71). Counsel for the respondents submitted that Dona was a witness for Sisili, his evidence for Sisili having been related to the court by his spokesman Osifera, and that Dona also gave evidence himself in support of his own claim to the Bina land.
19. If what the High Court said about Osifera and Dona was internally inconsistent or otherwise erroneous, that was an error of fact. The High Court did not make any error of law in accepting that CLAC was entitled to take evidence in Civil Case No 3/71 into account. Accordingly, the second ground of appeal should be dismissed.

Disposition

20. The appeal should be dismissed with costs.

Muria P
Wilson JA
Gavara-Nanu JA