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Agosautu v Guadalcanal Local Court [2021] SBCLAC 1; GCLAC Case 02 of 2018 (24 August 2021)

IN THE GUADALCANAL CUSTOMARY] GCLAC Case no: 02 of 2018
LAND APPEAL COURT ]


(Appellate Jurisdiction)


IN THE MATTER OF: KOMATE CUSTOMARY LAND (AN APPEAL FROM GUADALCANAL LOCAL COURT)


BEFORE: Nollen Cornelius Leni - President

Peter Aoraunisaka - Vice President

Daniel Donua - Justice

Robert Thuri - Justice

Joseph Solomon Anea - Justice
Leonard B. Chite - Clerk of the CLAC


BETWEEN: VENASIO AGOSAUTU

[Representing Kakau Mbiti Tribe of Guadalcanal Province]
Appellant


AND: GUADALCANAL LOCAL COURT
First Respondent


AND: SILAS BAKACHIKAI
[Representing the Lakuili Poi tribe of Guadalcanal Province]
Second Respondent


Date of hearing: June 1, 2021
Date of site-survey: June 22, 2021
Date of closing submissions: July 2, 2021
Judgment verbally delivered: July 14, 2021
Written Judgment delivered: August 24, 2021


Venasio Agosautu spokesperson for Appellant and their Kakau Mbiti Tribe
Silas Bakachikai spokesperson for the Second Respondent and their Lakuili Poi Tribe


JUDGMENT


Introduction

  1. This is an appeal against the Guadalcanal Local Court decision dated February 16, 2018. The Appellant and his party, being aggrieved, filed an appeal before this court, which is the subject of this judgment. Both the Appellant and the members of their party, and the Second Respondent and his party appeared before this court for full hearing on June 1, 2021. The panel had recorded no objection for recusal of panel members, hence, the accepting of written and verbal submissions in court.
  2. We are a newly constituted panel, and had called submissions for appeal substantive, conducted site-visitation or survey, and heard closing submissions from both parties. This is our reasoning and analysis leading to our finding.

Brief background

  1. On December 8, 2021, the matter went before the Guadalcanal Local Court (“GLC”) for full hearing[1]. A decision was made on February 16, 2021, granting the Second Respondent primary landownership rights over the land, known as, Komate Customary Land. The GLC order is quoted as follows:

“After considering all the relevant facts raised by disputing parties, the court in a majority decision decided that;

  1. The customary land ownership in the disputed Komate land is awarded to the plaintiff of the Lakuili Poi Tribe.
  2. Therefore, Defendant of the Kakau Mbiti tribe is ordered to work together with Lakuili tribe to establish the Police post at Komate land to provide security and safety for the betterment of the people of Weather Coast, South Guadalcanal.
  3. No Costs”
  4. The Appellant’s being aggrieved, appealed to the Guadalcanal Customary Land Appeal Court (“GCLAC”)[2], which a previous GCLAC panel sat and made a decision dated September 25, 2018:

“...5. It is unfortunate to note that the records are incomplete, unclear and illegible.

6. We find that the local court’s records of proceedings in this case to be unreliable.

7. Without the records, this court is unable to determine the grounds of appeal.

8. We therefore quash the local court decision dated 16th February 2018 and we remit this matter to the Local Court for a re-hearing of the issues.

9. Right to appeal within 30 days.”


  1. Dissatisfied with the GCLAC decision, the Second Respondent herein this appeal, filed an appeal to the High Court[3] seeking orders inter alia, a rehearing before a newly constituted GCLAC panel, and for site visitation to be conducted after the hearing. The High Court, by consent of both parties, granted a consent order dated, May 20, 2020:

“By Consent of the Parties and their respective Solicitors it is hereby agreed as follows:

  1. That the decision of the Guadalcanal Customary Land Appeal Court made on the 25th September 2018 in Appeal Case No. 2 of 2018 be quashed and removed on the ground that the contents of the said decision of the CLAC is very bare.
  2. That Guadalcanal Customary Land Appeal Court shall re-hear the appeal filed before it by the first respondents in the CLAC Case No. 2 of 2018 under a differently constituted CLAC members and a clerk to the CLAC.
  3. That after the re-hearing of the CLAC Appeal Case No. 2 of 2018 by the second respondent, the said court shall also carry out inspection and survey of the said land in disputed sites of cultural importance.
  4. That the appellants and the first respondent or members of their respective tribes shall not carry out any acts whatsoever to hinder or to prevent any development to be undertaken on Komate land by the Solomon Islands Government.
  5. Costs are to be reserved.”

The duty of GCLAC

  1. It is settled law in this jurisdiction that, the duty of this Court is to determine the issue of, whether the Local Court has erred in applying customary practices, law and its procedure when assessing the facts and evidences before it, thus, erred in its decision.
  2. Should we find on the affirmative, we will proceed to determine the issue of, whether it is proper to rectify the issue before us and make necessary orders, or to allow remittal for re-hearing de novo. If, instead, we find on the negative, we will proceed to dismiss the appeal and uphold the Local Court decision.

Appeal grounds

  1. The Appellant pressed forward eight appeal points, which we highlight it below for precision’s sake:

“Appeal point 1. Local Court erred in placing due consideration on chiefs decision dated 21st July 2016. As the dispute was between the two sub-tribes of Lakuili themselves, hence does not bind the applicant.

Appeal point 2. Local court erred in fact when it refer to the land in dispute as Komate.

Appeal point 3. The Local Court erred in fact, in concluding that the respondents have lived on the land at (Komate village) from time immemorial despite the fact that the respondent had failed to prove claim by presenting their genealogy or the number of generations settling therein.

Appeal point 4. That the Local Court erred in fact, by placing due reliance on past court hearings (1967, 1982, 1994), even though the hearings do not have direct effects or bearings to the current proceeding.

Appeal point 5. That the Local Court erred in Law in refusing to conduct surveys, or land identification to the land in issue though it was repeatedly sought or requested by the Appellant spokesman on behalf of the Mbiti Kakau sub-tribe.

Appeal point 6. That the Local Court also erred in Law by refusing to consider customary artefacts presented by the Appellant on the first day of sitting as part of cultural evidences on land ownership. The artefacts namely: 3 stone axes (Hila Vatu), 1 x tribal red/shall money (Pohabutu), 1x taboo stone called Kalai (belong to ancestral god called chuchubeku, and 1 x string of Devil Dog’s teeth (Livona Chua Pai).

Appeal point 7. The Local Court erred in fact, in rendering due consideration to a dug out well claimed to have been dug by the respondent’s tribesmen and a shell money presented by the respondent a day later and claimed to have made while they settled at Komate Village.

Appeal point 8. The Local Court also erred in law when the President of the Panel (namely Daniel Sade) with suspicious motive harshly refused to hear submission made by one of the Appellant’s witness, Mr. Hudson Sopa in attempt to clarify the confusion which arises from the erroneous claim referred to as ‘Komate Land’.”


Submissions, and Court’s Consideration


  1. First, Local Court erred in placing due consideration on chiefs decision dated 21st July 2016. As the dispute was between the two sub-tribes of Lakuili themselves, hence does not bind the applicant. The Appellant submitted that the case referred to and dated 21st July 2016, was between Genesis Chikai, Lakuili Poi Bora. That case has nothing to do with Mbiti Kakau sub tribe. The result of the chief’s hearing on the said date was in favour of Genesis Chikai of Poi Bora Clan, and respondent representing Lakuili in general lost.
  2. The Second Respondent submitted that the hearing and decision dated July 21, 2016, constituted a review of the Vatukula House of Chiefs decision dated August 5, 2015. Mr. Bakachikai further submitted that, the Chiefs namely, Mr. Hudson Sopa, Mr. Gospel Lemeke, Mr. Naphtalae Resele, and Mr. Belsasa Lakedia who were also judges themselves witnessed the decision dated July 21, 2016.
  3. We wish to make plain that, the Local Court holds the power as the court of first instance, to assess both customary facts, law, and evidences submitted before it. Which evidence they placed weight on, and the level of weight they rely on, is a matter within their powers, and not for this Court (GCLAC) to dictate. They have the authority to rely on chiefs’ decision, either wholly, or in part, with justification for doing so.
  4. Unfortunately, we do not see any consideration or deliberation being erroneously placed on chiefs’ decision dated July 21, 2016. Instead, would like to respectfully state that, the Appellant’s appeal ground number one is misconceived. We have had the opportunity to peruse the record of proceedings from Local Court, and the decision dated, July 21, 2016, and found nothing to succour their ground one. It would be better for the Appellant to direct this court to the aggrieved portion of which they claimed the Local Court had committed an error, instead of an unfounded argument. The vagueness of their appeal ground one only lead us to discard it. Accordingly, we hereby dismiss appeal ground one.
  5. Second, the Appellant submitted that the Local court erred in fact when it refer to the land in dispute as Komate. The Appellant initiated his submission by directing the court to a sketch map[4], and submitted that Komate is the given name of Verabaleho village situated on the coastal, west bank of Komate stream. He stated that the name came into use following a natural tragedy (incident caused by lighting) which took place at Verabaleho many decades past. He further submitted that Verabaleho (komate) village belongs to the Mbiti Kakau sub tribe, but was given to Poi Kova Kova (Tuga Palu palu – Helikiah Avuhado), and the Poi Bora (Hori and Laua – Genesis Chikai and Job Tango). Poi Kovakova and Poi Bora now bore the secondary right of ownership for Verabaleho (Komate) village according to Mbiti Kakau sub tribe.
  6. During site-visitation, the Appellant and his party led court’s panel to the coastal area, where they submitted that ‘Komate’ had been washed away by tidal waves, following series of cyclones in 1952 and 1967, and that only a quarter of the portion is left on the coastal. The Appellant submitted that the same applies to Vera vutu, Vera Lega, and Koilotuvitu villages.
  7. The Appellant claimed that, Kakau Mbiti tribe gave the land known as Komate, to the Lakuili Kovakoka tribe. In addition, they submitted that they retained primary ownership of the particular land. Notwithstanding this fact, they vehemently argued that Komate (“Verabaleho”) had been washed away by sequence of tidal waves in past, leaving only a portion of it. Their argument was that, the claimed Komate land is outside of the disputed portion, including the police post. In fact, they claimed the Police Post to be within Koso village, and primarily owned by the Kakau Mbiti tribe.
  8. The Second Respondent argument was that, the disputed portion of land is located within Komate land, and that Komate land still remains until today. They refuted all claims suggesting that Komate had been washed away. They also disputed the claim that the disputed police post land is within Koso village. Mr. Bakachikai submitted that, the police post land is within Komate customary land.
  9. As apparent, there are two competing claims of ownership over the disputed portion of land, including the customary name, Komate. We must commend the Guadalcanal Local Court, for its clear and succinct decision. However, we see it fit to address some errors, which we found to have affected its decision, specifically in relation to dispute over customary name and boundary of the land.
  10. While we agree that, GLC had rightly outlined the issues in its introduction, it had miscarried itself when it established the disputed land to be ‘Komate’. This was a disputed issue, and GLC should not have concluded as such, without proof of facts and evidences. We hereby itemize the issues as follows:

“●Whether any of the disputing parties have proven customary interest in the disputed Komate customary lands?

●Whether the portions of Komate land is part as a whole land of Mbiti customary land claimed by defendant (now Appellant)?

●Whether the Komate land was given to Lakuili tribe namely; Poi bora tribe and Kovakova sub tribe by the Kakau Mbiti tribe?”


  1. We have gathered from the Local Court’s decision and records of proceeding that, the name of the disputed portion was a contentious matter. As such, concluding and referring to the disputed land as ‘Komate’ is, in our view, an error. It would have been more proper to consider the questions of; whether the disputed land is Komate customary land, or part of Koso village within the Mbiti customary land. And, whether the Kakau Mbiti tribe, or Lakuili Poi tribe owns it.
  2. We find that, by establishing the disputed customary land as ‘Komate’, the Guadalcanal Local Court has indirectly answered or assumed a question of fact without proof. Even if GLC merely uses the name for filing and registering purposes, which we disagree, we find that it had affected the neutrality of its decision. Additionally, the Appellant’s right to be heard on the particular issue was never afforded to them. The disputed customary land, its boundaries, and name was not put to witnesses during the GLC hearing, hence, leave no avenue for the GLC to decide on it, or to conclude that the land in question is ‘Komate’.
  3. We have conducted a site-survey on the disputed land, and have walked on the portions of land, claimed to be, Mbiti land, and Komate customary land. However, faced with heavy conflicting submissions from both parties, on the name of the customary land, boundaries, and taboo sites. Although, we accept, having the power to rule on customary matters per se, we are not incline to decide on what was not tested and weighed before the GLC. For if we proceed to weigh on and accept a party’s submission, over the other, it would question our duty to decide on contested matters without the establishment of rule in brown and Dunne [1893] 6 R 67 (HL). In addition, we wish to reemphasize the fact that, we hold an appellate jurisdiction, hence, could not allow calling of witnesses and cross-examination. Those are matters for the trial court (GLC). There may be instances of which, we can allow leave, for parties to call witnesses. However, do not wish to entertain it in such highly contested issues, which would tantamount to assuming a duty of the trial court (GLC). In the circumstances, we allow this appeal ground.
  4. Third, the Local Court erred in fact, in concluding that the respondents have lived on the land at (Komate village) from time immemorial despite the fact that the respondent had failed to prove claim by presenting their genealogy or the number of generations settling therein. The Appellant’s submission was that, the Second Respondent did not provide truthful genealogy. This is because, the Second Respondent’s great grandmother originated from Chakudale, moved to Matana’aso. She was taken down to Komate village, a portion of land within Mbiti customary land, by Tuga Bua and Matai Manu, who were sixth generation of Mbiti Kakau tribe. She was only brought down for marital purpose. She was given hand in marriage to Tuga Matai Manu (of Mbiti Kakau subtribe). Thus, was only introduced and taken to Mbiti Land for marital purposes, and have not lived on Komate village since time immemorial.
  5. The Second Respondent vehemently argued against this appeal ground, and submits that, the Lakuili Poi Tribe have their tribal ancestors’ old original settlement sites within Komate Customary Land boundary, with their historical sacrificial taboo and custom memory sites. Mr. Bakachikai submitted that, there are a total of seven old original tribal ancestors settlement sits within Komate land boundary and six outside close to the boundaries of Komate Land. He further submitted that, there were eleven generations, who have settled on the Komate land, since time immemorial.
  6. As obvious, there are competing claims of genealogies, and the generation who first settled on Komate. Although, this was a muddle tied up with appeal ground two, which we have already addressed, we see it appropriate to address the merits of submissions on this issue. It is clear that both parties contested each other’s submissions, which has apparently, placed us in a more complicated situation to rule on this ground.
  7. While we appreciate the GLC for arriving at its decision, we have found that it failed to specify the actual genealogy and the generation, which points to and justify ownership over the said land. There was nothing before the Local Court to prove that the Second Respondent and its Lakuili Poi tribe settled on for decades[5]. We agree that, there were evidences to prove that the Second Respondent and his Lakuili tribe had settled on Komate, however, could not support the claim of ‘settling on the land for decades’, to imply time immemorial. The GLC making a finding of this, in our view, has miscarried itself without reliance on evidence adduced by parties before it, or in contrary to the preponderance of evidence. For this reason, we allow this appeal ground.
  8. Fourth, that the Local Court erred in fact, by placing due reliance on past court hearings (1967, 1982, 1994), even though the hearings do not have direct effects or bearings to the current proceeding.
  9. The Second Respondent strongly denied this argument and state that, the past court hearings have direct effect or bearing to the current proceeding, because it is the same Komate land that had been disputed by the same Kakau Mbiti tribe over ownership right since 1967, 1982, 1994, 2015 and the latest 2017 in which the same Kakau Mbiti tribe lost in all hearings.
  10. We are baffled to note that, the Local Court had accepted this argument and submission on past cases, as oral testimonies, without any documentary evidence[6] to support the same. Past court cases can only be admissible with the actual decision, except if uncontested. Here, the Appellant and his Kakau Mbiti tribe strongly reject these claimed decisions, hence, incumbent on the GLC to entertain and rely on documentary evidences to support this argument, which they unfortunately fail to do. The GLC accepted the Second Respondent’s argument of ownership by placing due consideration of the fact that, one of their witnesses was 14 years of age when he witnessed the hearing, and that other plaintiff witnesses also confirms the same. This, in our view, is incorrect, and we must correct it. Therefore, for this reason, we allow this appeal ground.
  11. Fifth, that the Local Court erred in Law in refusing to conduct surveys, or land identification to the land in issue though it was repeatedly sought or requested by the Appellant spokesman on behalf of the Mbiti Kakau sub-tribe.
  12. We noted that, this issue was already addressed in the case of Silas Bakachikai & others v Hudson Sapa & others[7], the basis for us rehearing this matter. Also, we have had the opportunity to survey the land, and walked on the claimed Mbiti Land, and Komate Land, but was faced with heavy competing claims by both parties. However, since we have done this requested land identification, we must hereby reject this appeal ground.
  13. Sixth, that the Local Court also erred in Law by refusing to consider customary artefacts presented by the Appellant on the first day of sitting as part of cultural evidences on land ownership. The artefacts namely: 3 stone axes (Hila Vatu), 1x tribal red/shell money (Pohabutu), 1x taboo stone called Kalai (belong to ancestral god called chuchubeku, and 1 x string of Devil Dog’s teeth (Livona Chua Pai).
  14. The Second Respondent submitted against this ground and state that, the Local Court made no wrong in refusing to consider customary artefacts presented as evidence by the Appellant, because the statement of customary artefacts was based on matters outside of Komate land, as the disputed issue, hence found no significance or value to relate to ownership of Komate land.
  15. This appeal ground is related to appeal ground two. We agree that the local court has the right to decide on which evidence to accept, and reject. That, we do not dispute. However, we must say that, the GLC has misdirected itself when it concluded that the land in question is, Komate, while this remains an unresolved and contested issue. The GLC rejecting the Appellant’s customary evidences on grounds that it mostly involves those outside of Komate, is incorrect. Its finding was subjected to an earlier wrong, that is, by concluding that the land in dispute is Komate, without proof of fact and evidence, which had established a wrong from the beginning, ‘void ab initio’. In this circumstance, we must allow this appeal ground.
  16. Seventh, the Local Court erred in fact, in rendering due consideration to a dug out well claimed to have been dug by the respondent’s tribesmen and a shell money presented by the respondent a day later and claimed to have made while they settled at Komate Village.
  17. The Second Respondent vehemently argued against this appeal ground, and stated that, the shell money (Pohobutu) according to the custom and culture of Guadalcanal, the Pohobutu, shell money has authority over land that owns by any tribe, and the tribe had power on that land. No other than the shell money called Pohobutu for any tribe to claim ownership of any land on Guadalcanal customary land ownership. Mr. Bakachikai submitted that, for Komate land, the shell money (Pohobutu) has its significance on Komate land. The Shell money (Pohobutu) had been transferred from Lakuili Poi tribal ancestors from generations to generations up until today. As Komate land is tribal land that originally owned by the Lakuili Poi tribe.
  18. We do not find any err committed by GLC in this regard. We must say that, the GLC has the power to accept and reject evidences adduced before it. What it did was according to their mandated duty, and we do not feel that we should dictate it, for they are the trial court and would know the primary evidences better. We can only intervene to correct a wrong. Therefore, we will discard this appeal ground.
  19. Finally, the local Court also erred in law when the President of the Panel (namely Daniel Sade) with suspicious motive harshly refused to hear submission made by one of the Appellant’s witness, Mr. Hudson Sopa in attempt to clarify the confusion which arises from the erroneous claim referred to as ‘Komate Land’.”
  20. The Second Respondent refuted this submission, and stated that, the President of the Panel did not harshly refuse to hear submission made by Mr. Hudson Sopa. He said that, a question was asked by the President of the Panel to Mr. Hudson Sopa, wanting to know the location of the Lakuili Poi Tribe’s shark taboo site, whether it is within, or outside of Komate Land. However, Mr. Hudson Sopa, did not give a satisfactory answer to the question, so it was repeated three times. That was what the President did, and nothing to suggest any refusal to hear his submission.
  21. We must again state that, the Guadalcanal Local Court (GLC) holds the power to accept and reject submissions, or evidences before it. Suspicious motive is not a ground for appeal, and should not be treated as an explanation to the panel’s reaction. The panel members hold the right to question the parties, witnesses, and spokespersons on the issue. This appeal ground is without weight and must be dismissed accordingly.
  22. For reasons that we have discussed and found above, this appeal is allowed. After hearing submissions, we determined that the matter should be tried de novo. As the matter is returning to the Guadalcanal Local Court for hearing de novo, we do not wish to make any sentiments or comments on the evidentiary basis, which may potentially affect the rehearing

DECISION

  1. Upon considering what we have discussed in this Judgment, we make the following orders:
    1. Allow appeal grounds; 2, 3, 4, and 6.
    2. Appeal grounds 1, 5, 7, and 8 are hereby dismissed.
    3. We order that the matter be remitted to Guadalcanal Local Court for a hearing de novo, before a newly constituted and independent panel.
    4. The Guadalcanal Local Court (“GLC”) must ascertain issues of: migration route, genealogy (discoverer), customary boundaries and features, ownership, demarcation (if any), and inherited land or transferred land. This list is only for assistance and guidance, and by no means exhaustive.
    5. Right of appeal applies within 3 months from date of this judgment.
    6. Parties bear their own costs.
    7. Order accordingly.

Dated this 24th day of August 2021.

Signed by: Nollen Cornelius Leni ............................ President


Peter Aoraunisaka ............................ Vice President


Daniel Donua ............................. Justice


Robert Thuri ............................. Justice


Joseph Solomon Anea ..............................Justice


Leonard B. Chite ..................... ........Clerk of CLAC

THE COURT

[1] GLC Case No. 06 of 2016
[2] GCLAC Appeal Case No. 2 of 2018
[3] HC Civil Case No. 413 of 2018
[4] At Annexure 1 of the Appellant’s submission
[5] See paragraph 36 of the Guadalcanal Local Court decision, dated 16th February 2018.
[6] See paragraph 40 of the Guadalcanal Local Court decision, dated 16th February 2018.
[7] HCSI Civil Case No. 413 of 2018

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