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Abaeta v Kinisita [2013] SBCLAC 3; Land Appeal Case 07.2007 (31 May 2013)

IN THE MALAITA CUSTOMARY LAND APPEAL COURT
LAND APPEAL CASE NO: 07/2007

ABOUT: DAU LAND

BETWEEN:

STEPHEN ABAETA
LINO OGARI
JIMMY FA'ARIAKALO
APPELLANTS

AND:

LYNAS KINISITA
RESPONDENT

Date of Hearing: 28th & 29th May 2013
Date of Judgment: 31st May 2013

JUDGEMENT

1. This is an appeal against the decision of the Local Court delivered on 17/8/2007 wherein it ordered as follows:

(1) Both Stephen Abaeta and his line and Kinisita and his line have the same primary rights over Dau land.

(2) The defendant's map is accepted.

(3) Any development must be consented by both the plaintiff and defendant.

(4) All properties within Dau land must be owned used by the property owners.

(5) Plaintiff and Defendants' line must respect each other's properties.

(6) No order for costs.

2. The appellants lodged 10 grounds of appeal, however when arguing the appeal he confined himself just to one ground of appeal and that being that the Local Court was wrong in its decision when it award both him and the respondent to have equal primary rights over Dau land.

3. The Dau land dispute unfortunately has had a very long history of litigation and I think it is important that we should give a background of the history of litigation.

BACKGROUND OF THE HISTORY OF LITIGATION

(a) Civil case no. 16 of 1968 was between Jason Frank and Diotee (Jason Frank is the father of the appellant Stephen Abaeta this case was heard by the Native Court of Malaita and Frank Jason appeal to the Western Pacific High Court and the appeal was dismissed.

(b) Case 27/79 was filed in the Malaita Local Court and it was between Ilolo and Okole Ramolelea.

(c) Case 62/80 was filed in the Local Court and it was between Kinisita and Okole Ramolelea. This case was appealed to CLAC by Kinisita.

(d) Case 3/85 was heard by the Local Court and the case between Augustine Maimarine and Kinisita and the decision was appealed to the High Court by Augustine Maimarine and the High Court remitted the case for hearing by the CLAC. The CLAC heard the case and remitted it to Local Court for further hearing and survey and later the case was return to CLAC for further hearing.

(e) The Dau land was subject to High Court litigation which are as follows:

1. Native Land Appeal Case No. 7/1969 between Jason Frank and Diotee which awarded ownership of Dau customary land in favor of Jason Frank.

2. In 1981 CLAC in case of 3/1982 heard a case between Kinisita and Okole Ramolelea (Ramolelea is the son of Diotee. In this case Kinisita claim that he own whole area of land known as Dau land including Morumoru and Aba and the Local Court awarded Dau land (on bush side) to Kinisita and the sea area of Morumoru and Aba land in favor of Ramolelea. Kinisita appeal to CLAC and his appeal was upheld and the CLAC gave the whole area of Dau including Morumoru and Aba to him. This was subsequently appeal to the High Court and the High Court upheld the appeal.

TWO HIGH COURT DEICIONS

4. The two High Court decision referred to in paragraph 3 above resulted in Dau land title vesting in two different groups or tribes namely Abaetaanifelo and Kinista.

5. Abaetaanifelo commenced a customary land under section 12 (1) of the Local Court and the chiefs refused to hear the dispute and gave its reason that the dispute was res judicata so the appellant in the present case made an application to the High Court by way of originating summons in case no. 131/2002. This matter was heard by Palmer ACJ as he then was. He in his judgment remarked as follows:

"Respectfully, I do not think the chiefs need concern themselves with the question of res judicata. This is the question of law which the party themselves can rise during the hearing of the chiefs itself or take it up to this Court. Until this matter is formally raised they are obliged to consider the dispute on section 12 (1) of the Local Court Act. The chiefs however cannot prejudge the issue without first hearing it, unless of course, if there had been ruling to get effect by this Court."

Later on in his judgment Palmer ACJ said: "Whilst the orders sought should be refused, this judgment hopefully has cleared the air for the chiefs to proceed with the dispute directed."

6. Following the clarification by Palmer ACJ in case no. 131/2002 the appellants made attempt to have dispute heard by Ngarilasifono house of chiefs. The house of chiefs wrote to the respondent in October 2005 and asked him to attend the hearing. The respondent on the 19 of October 2005 asking the chiefs to provide their names and further stated that without knowing their names he cannot agree to the panel. He also raised the issue of security of himself and the chiefs and asked for the venue to be changed to the police barrack and if it was not changed then he will not attend the hearing. The chiefs gave him three notice of hearing and he simply decline and refused to attend the chiefs hearing. The chiefs hearing took place on 1/12/2005 in the absence of the respondent and the house of chiefs made the following declaration.

"1. Stephen Abaeta had willingly presented his genealogy with his map of boundary shown. The boundary starts off the shores of Langalanga lagoon at the mouth of Raulu River, up to Dele stream, up to Kafufelofelo east side and running to the Sigaro River and down the river south to the Bina river mouth to the shores of Langalanga lagoon.

2. Stephen Abaeta had willingly presented himself to the house of chiefs for discussion on matters relating to the issue.

3. Stephen Abaeta had openly and willingly welcomes his defendant (Kinisita) to openly share in the discussion with the chiefs.

4. That we have given him ample time to come to the centre but he had failed and absent himself and didn't come on the invitation of the chiefs.

5. That the defendant had failed to present himself on the three appointed times for discussion at the house of chiefs.

6. That the defendant had made his statement on 13.02.2001 while at reconciliation gathering which was witnessed by Rokasiano Kikisa, Senior Pastor Peter Tom, Anglican Mama Joel, Sebedeo Sangotaa, Eddie Dioto, Obeth Obea and Kinisita himself that "Dau Land was Your Land"

And again on 12-04-2003 on their discussion gathering Stephen Abaeta's party was present with these witnesses

(1) Linus Kinisita, Alumae, Mani, Wilson Kwai, Manaita'a, Martin Kinisita.

Again he proclaimed that, "Dau Land was your sole property and no other."

The chiefs used their discretion not to survey the disputed land because the land is well known and on our records we have sufficient evidence to reach or make a decision.

And so with these remarks made the Ngarilasifono authority now finally concluded that Stephen Abaeta Tribe was the true land owning group of Dau Land.

7. So after many years the chiefs finally heard Dau Land dispute and made its findings but regretfully the respondent did not attend it and the appellant referred this dispute to the Local Court by action number 5 of 2006 and the Local Court having heard the dispute decided as stated above that both the appellants and his line and the respondent and his line have the same primary right over Dau Land.
   

8. It is agreed by both parties that the decision of Local Court is not correct as two different tribes cannot have primary right over one piece of land and we share the views of the parties.

9. We have perused the record of the Local Court in great and it reveals that the Local Court was very obsessed with the previous court proceedings when Palmer ACJ in action number 131 of 2002 had made it abundantly clear that this dispute can only be resolved by the chiefs.
   

10. The respondent in his submission before us attacked the decision of Ngarilasifono House of chiefs 1/12/2005 claiming that it was false and also called liars. The respondents did not attack the chief's decision before the Local Court nor did he suggest that the chiefs were liars and the decision was false. If he had done it then the Local Court could have called the chiefs to verify the accuracy of their decision.

11. We have considered the Ngarilafono House of Chiefs decision and we are of the view that they were in a better position to assist in the resolution in Dau Land dispute and that the Local Court failed to consider the chiefs determination and decided the case on the basis of the previous proceedings.

12. In the circumstances we allow the appeal and make the following orders:

a) The Local Court decision dated 17/8/2007 is set aside and we hold that the appellant Stephen Abaetaanifelo and his tribe are the primary right owners of the Dau Land and the respondents do not have any right over Dau Land

b) We ordered the respondent to pay the appellant cost to be taxed if not agreed.

13. If any party is not satisfied with our decision then he can appeal to the High Court on a point of law within 3 months of today.

Dated this 31st day of May 2013.

1. Stanley Toata - Acting President _________________________

2. Philip Otoahu - Member _________________________

3. Rex Funusulia -Member _________________________

4. Jacint Beba - Member ________________________

5. Jacob Rahe - Member _________________________

6. Joseph Sihiu - Member _________________________

7. Alpheus .M. David - Clerk _________________________