IN THE MALAITA LOCAL COURT

LAND CASE NO. 3/2008: FILE MLC 7/122

MALCOLM MAEFILIA
(MAKWALE TRIBE)
PLAINTIFF

1)	PETER TOLIFAEKI*
(DA'AFITOLO TRIBE)
RICHARD TOFE (SPOKESPERSON)

2)	JOSEPH BULU
(TAKILA TRIBE)
COLLIN WALE (SPOKESPERSON)
DEFENDANT

QUORUM: I. ILIMANU (VP), E. WASI (CM), A. ADI (CM).
COURT VENUE: AUKI

HEARING DATE: 23RD JUNE - 6TH JULY, 2009
SURVEY DATE: 8TH JULY, 2009
JUDGMENT DATE: 15TH JULY, 2009

JUDGMENT

1. 	CASE TO PROVE

The case before this Court to be proved is the ownership of Ore Ore Customary Land. That is, this Court is to prove which of the parties in dispute is entitled to the primary rights of ownership over the Ore Ore customary land according to (Malaita) custom 

2. 	STANDARD OF PROOF

The standard of proof is proof on the balance of probability. What this means is that to prove this case, this Court will have to carefully balance the weight and value of the evidences between the parties. The party whose evidence is more probable to be worthy of belief as to the truth of the facts in accordance with (Malaita) custom is then awarded the primary rights of ownership over the Ore Ore customary land.

3.	 FACTS TO PROVE

A.	PLAINTIFF'S FACTS/CLAIMS

a)	Right to bring the Case up before Court

The Plaintiff claims his right to bring up his claim of ownership over the Ore Ore 	customary land before the chiefs, and now before this court is based on the following:

(i)	The 1954 case between Bulukwai and Gilead. That in the findings to this particular case, they stated that Bethuel Gwaite, his father, was declared as first discoverer of Ore Ore land. He further claimed that the same findings, in para. 5 (pg 24)' provisions were made for more enquiries into this case (ie. Ownership of Ore Ore customary land with regards to Bethuel Gwaite). Refer to Plaintiff's Exhibit P1.

(ii)	1972 case between Langalanga and Kwara'ae people over Ore Ore land. Held at Dalousu on 20th July. That in the proceedings of this particular case, Tofe Atakwa, the 1st Defendant or Defendant No.1, Peter Tolifaeki's father stated Bethuel Gwaite has the sacrificial site at Ore Ore. Refer to Plaintiff's Exhibit P2

(iii)	1982, 8th April CLAC case between Bafu and Oliaedina. That the decision to this case states that Bafu has no rights in Feratala and Oliaedina has no rights in Ore Ore, and that this case proves OreOre is a different or separate land from Feratala. He further claimed that this CLAC decision which he called "an uncertain decision that hangs on his brother Clement Lafea*" is confirmed by a High Court case no 418 of 1999. Re: Plaintiff Exhibit P3 & Exhibit P4

* Clement Lafea descends from Alifoe, Otodoe's (Malcolm Maefilia) brother, the two sons of Kwailalamua (re: Plaintiff's geneology).

b)	Right of Ownership

The Plaintiff, Malcolm Maefilia claims ownership rights over the Ore Ore customary land through the following:

i)	Discovery

That his ancestor, Kwaira migrated from Kwairafa in the bush and discovered Ore Ore at the coast. His migration (or exile) was due to a row he had with his elder brother, Gwafea over an incident that happened when Kwaira was shaving their sister, Falimae's hair off and had to touch their sister's thigh (private part) to retrieve the "gnaki" (or sharp stone used as a razor or scissors to shave off the hair in olden days) when it fell by accident on to their sister's private part. Because of the incident, Gwafea asked Kwaira 	to leave. He further claimed that Kwaira migrated with four (4) sons; Gwafea Te'e, Banita, Ofai and Tongana when he discovered Ore Ore. Then, though Kwaira, Banita, Ofai and Tongana returned to Gwafea after reconciliation years later, Gwafea Te'e, Kwaira's first born son remained behind at OreOre. And, it is through Gwafea Te'e, through whom he traced his geneology, that he based his claim of ownership over the OreOre land.

(ii)	Ancestor and Genealogy

That through Gwafea Te'e, Kwaira's first born son, his genealogy of OreOre is as 	follows:

Otodoe
Laulalamua
Mosimaoma
Gwadailangi
Ko'ogamo
Ko'oiro
Kongada
Koafu
Musia
Idufoa
Maradoe
Bethuel Gwaite
Malcom Maefilia (present in Court)
Francis Toloa
Rex Toloa	Gwafeate'e
Koaidoe
Kwailalamua

Alifoe
- Clement Lafea's line

- PW4 Edwin Kulai

(iii)	Three Addresses of Oreore

The plaintiff also claims ownership right over Ore Ore because of three addresses of the word or place;

-	Ore Ore 1 addressed by Kwaira at border of Kwara'ae. This is the land in dispute
-	Ore Ore 2 addressed by PW2 at Fauabu, Kware (North)
-	OreOre 3 addressed by PW3 at Kwaielia near Sulufau, West Kwara'ae.

(iv)	Tabu Sites

The plaintiff also claim ownership rights over Ore Ore through the following tabu sites
-Ore Ore principle
-Gwaiania
-Makwale
And Furufau - site for making shell money or first production of shell money 
Burial site - a big abalolo tree now burnt by fire.

(v) 	Properties 

The plaintiff also claims ownership of Ore Ore through ownership of Ngalinuts.

(vi)	Names of Grounds/Settlements.

The plaintiff also claims ownership of Ore Ore through the names he had given to places because of historical events in the history of Ore Ore.
Faugwari: a white stone did not turn hot to change the colour of shell money
Langa Langa:	the place was dry refers to Langalanga in Kwara'ae and Langlnaga Lagoon.
Tavuiola - at Lalana Island named after Afelaua's canoe which was used to build a wall stone.
Makwalia: means "to wait for any word"

(vii)	Discovery of Shell Money:

That his ancestor, Gwafea te'e discovered Afelaua, the woman who introduced shell money.

B.	PLAINTIFF'S WITNESSES EVIDENCE

i) PW1: Lemuel Laeni: Kilusakwalo

His evidence confirms Gwafea and Kwaira, the incident with their sister, Kwaira exile or migration with his four sons, Kwaira's discovery of Ore Ore, Kwaira's return journey to Gwafea, and that Gwafea tee, Kwaira's first born son remained in Ore Ore when Kwaira returned to Gwafea. He also confirmed the 	reconciliation and shell money brought by Kwaira.
And, the name Ore Ore was given to Kwaira by Gwafea, his ancestor.

ii)	PW2:	Barnabas Lagwae of Kilusakwalo

Born of Banika, Kwaira's third son. His evidence confirms Kwaira and his four sons, Kwaira's return journey with three of his sons leaving the first son Gwafea Tee at Ore Ore. He further states that Kwaira's return journey was along the coast where he reached Kware/Fauabu and settled there temporarily. He addressed Oreore the second 	time, confirms the place or name Makwalia and Langa langa, and Gwafea Tee's remaining at Ore Ore.

iii)	PW3: Jezemiel Formani, West Kwara'ae.

His evidence confirms Gwafea and Kwaira, and the row between them. He further stated that Kwaira left OreOre and the name becomes Oreana, and that he (Kwaira) settled with his devil Kodasa at Kwaielia near Sulufau. The place they settledhe addressed as Ore Ore 3.

iv)	PW4 - Edwin Kulai: Tavuilo, Langa langa.

He stated that Otodoe (Malcolm/Ore Ore) and Alifoe (Edwin, Makwale) are two 	brothers born of Kwailalamua. He further confirmed the first introduction/production of shell money at Furufai by Gwafea tee and Afelaua. He then stated Gwafea tee and Afelaua had to migrate from Furufai to Tavuilo then to Laulasi because of shell money production. The rest of his evidence focuses on his devil Alifoe, his tambu site at Laulasi, and shell money worship and production at Laulasi. Finally, he did mention in the questioning that Otodoe went back and Alifoe remained behind. The Court is not sure of which places he is referring to here. However, he stated Malcolm does not live at Ore Ore today and that the tabu house at Laulasi is still used today.

C.	DEFENDANT'S FACTS/CLAIMS

a)	Defendant's Right to Defend the Case.

The defendant, Joseph Bulu claimed his right to defend this case against him by Malcolm Maefilia is provided for by the 8 April 1982 CLAC case between BAFU and OLIAEDINA. The decision of these 1982 CLAC case states BAFU has no rights in Feratala land and OLIAEDINA has no rights in OreOre land. Therefore, he claimed 	OreOre is free to be claimed by any party except Oliaedina and his Aniboni tribe.

b)	Defendant's Rights of Ownership

The defendant Joseph Bulu claimed ownership rights over Ore Ore customary land through the following:

i)	His Ancestor/Devil and Genealogy

He claims his right of ownership over Ore Ore land through his ancestor/devil name SULIMANU and genealogy:

Defendant's Genealogy

From Sulimanu, the Defendant's genealogy at Alite Island is as follows: 

*

*

*
	Aramalu 1
Kufi & Araidako
Olitomae
Furufai
Aramalu II
Kalumae
*Sikoa
Fosibua
Tolomalu
Leasia
Gwaobala
Kufi II
Wawane
Tolomaemae
Abei
Wanenuma
Fosibua
*Fotabulu (present in Court)
Tamalea	

ii)	Ransom (FOA) and Marriage.

The Defendant also claimed ownership rights over Ore Ore land through Haranihihu, Sulimanu's wife. He claimed that Ore Ore land is a unit land within Feratala, a clan land within Alasa Kwaiberobero, the main tribal land. And, that OreOre (unit) land was given by Alasa Kwaiberobero (main tribal land) to Haranihihu his female line. And, Haranihihu was then given to Sulimanu as a reward or ransom (FOA) for killing Kwaisulia who killed a young son of Alasa Kwaiberobero. By marrying Haranihihu of Ore Ore land, Sulimanu therefore, has ownership right over Ore Ore land.

iii)	Tabu sites and Custom Significances.

That he claims ownership rights over OreOre through the following sacrificial 	sites, and custom significances:

*
*		SINASU'U sacrificial site, principle/main site of Ore Ore.
	Three (3) sacrificial fires at Alite Island
-	Etea
-	Foata or Akalonimae
-	Ongila or Akalonimaoma

*	Custom Significances
-	land law
-	land sign
-	land mark

*	Burial grounds
-	Dala
-	Alite Island	

iv)	Settlements.

That he claims ownership rights over Ore Ore through his settlements.
-	Gwaikona'abu or Ore ore
-	Furafai
-	Sinasu'u
-	Onerara

v)	Occupation.

That his tribe occupied the land from generation to generation.

vi)	Naming of Settlements/Grounds, Streams, etc.

That his ancestor Sulimanu named all the land in Ore Ore. 
And:
-	Furufai was named after his ancestor Furufai by Furufai himself
-	Kwaisikoa stream was named by his ancestor Sikoa who settled at Onerara within OreOre.

vii)	Properties.

That they have coconut plantations, gardens and swamp taro gardens in Ore Ore land.

D.	DEFENDANT'S WITNESS'S EVIDENCE.

DW1 Bob Sanisi, Koalia village, Langa Langa .

Confirms Tolomanu, the Defendant's ancestor as the man of Alite Island. Married to Ialea Te'e, a female of Takila and offers or gives his pig to Tolomanu. States the Defendant migrated from top to Ore Ore than to Alite Island.States the Defendant gave him Maela, a piece of land at Koalia for gardening.

DW2. Sotere, Surafita village Langa Langa.

Claimed marriage to Buabulu, a female of Takila tribe. Confirms Sinasu'u is principal site at Oreore. Gives his pig to Sinasu'u principal.

DW3.	James Billy

Confirms defendant married their female of Alasa Kwaiberobero. States the defendants have right in custom to work the land. States Bethuel Gwaite already Court with his grandfather Gileat and lost his case over Ore Ore. That OneOre and Feratala is one and the same land.
That Alasa Kwaiberobero is the main discovery land.

4.	BOUNDARY

This Court accepts the Plaintiff's boundary who adopts the boundary declared by CLAC in the 8 April 1982 CLAC case. (Re: MD/CLAC/79/CE3)

5.	OBJECTIONS FROM OUTSIDE PARTIES.

Refer to Survey Report in File MLC 7/122: Maefilia -v- Bulu: OreOre Land Case No. 3/2008.

6.	SURVE

Refer to Survey Report in File MLC 7/122: Maefilia -v- Bulu: OreOre Land Case No. 3/2008.

7.	COURT FINDINGS

This Court has deliberated on the evidence adduced before Court by each party, the objections by parties, not necessarily parties to this case, and the judgments in previous cases over the land in dispute and has come up with the following findings.

1.	That the Chief's settlement or hearing is strictly not PROPER according to the Local Court Amendment Act 1985 (cap 19) and Local Court Handbook 2005. It is rather a public forum or public hearing instead, with an open invitation for objections from any party/tribe claiming ownership of the OreOre customary land. Six (6) or more parties attended this hearing. It is from this public hearing that this Court believes the Secretary to the Chief's panel produced the Unaccepted Settlement form. This form was prepared only by the Secretary and not certified or signed by the Chiefs. This Court therefore, regarded the Chiefs settlement not proper in light of the Local Court Amendment Act 1985 cap. 19 and Local Court Hand book 2005 as aforesaid.

2.	This Court also found out according to the 1954 case between Bulukwai and Gileat that Malcolm Maefilia is not a new man to claim Ore Ore land. In this 1954 case, the D.C Jelf refers to a previous case between Bethuel Gwaite and Gileat over Ore Ore land. This particular case was heard and Judgment was given by Mr. Foster. Gileat won this case against Bethuel Gwaite. His victory over Bethuel gwaite in this case is proved by the establishment of the SDA mission village at Talakali. Talakali is within the Ore Ore land. Bethuel Gwaite is Malcolm Maefilia's father. Therefore, Malcolm is not a new man to claim Ore Ore land again. (Deputy Commissioner, Jelf 1/6/54 ref. LC/MD/75)

3.	This Court also found out that Joseph Bulu is of the same tribe as Walelesia. Walelesia lost his case to Jack Olitaisina in 1987. Therefore, Joseph Bulu is not the right man to defend this claim over Ore Ore land. (MD/CLAC/85/6)

4.	Because the land proof or survey was opposed/ objected and prevented by other tribes or parties, this Court is not able to prove the customary evidences on the land such as tabu sites, settlement and properties. This Court, therefore, could not make any judgment on these customary evidences.

Because of the chiefs settlement is unprocedural, the revelation about Bethuel Gwate's case with Gileat in the 1954 case and Joseph Bulu's relation to Walelesia of the 1987 case, this Court is satisfied and so delivers its decision.

DECISION

1.	This land case No. 3 of 2008, between Malcolm Maefilia of Makwale tribe hereinafter referred to as the plaintiff, and Joseph Bulu of Takila tribe hereinafter referred to as the defendant, over the OreOre customary land is DISMISSED

2.	No Order of Costs.

RIGHT OF APPEAL

Any of the parties not satisfied with this decision may lodge his appeal within ninety (90) days w.e.f. 15th July 2009 to 15th October 2009.

COURT OFFICIALS*

1.	Ilita Ilimanu ……………………………………………Vice President
2.	Eddie Wasi ……………………………………………..Court Justice
3.	Andrew Adi…………………………………………….Court Justice
4.	Hillary Fioru……………………………………………Court Clerk