IN THE SHORTLAND LOCAL COURT
WESTERN DISTRICT
SOLOMON ISLANDS

LC CASE NO: 01/2011

IN THE MATTER OF:
Section 12 (a) (b) and (c) of the Local Court Act Amendment (Cap.19) 1985

And:

IN THE MATTER OF:
Section 12(3) (a) and (b) of the Local Court Act Amendment (Cap.19) 1985

About:

CUSTOMARY OWNERSHIP OF RORAU AND TOANAPINA CUSTOMARY LAND

BETWEEN:

Mary Peati Laore, John Mamion and Theresa Ethel Misiesolo Maina
Represented by Titus Paul Maina (Spokesperson/Tribal Member)
Plaintiffs

AND:

Paul Buare and John Saveke
Paul Buare (Spokesperson/Defendant)
Defendants

Sitting at Gizo, Western Province

Date of hearing: 6, 7, 8 & 9/10/2015 
Date of Judgment: 14/10/2015

JUDGMENT

Introduction

This is a dispute relating to the customary ownership of Rorau and Toanapina lands. The Plaintiffs filed case to the Shortland Local Court in the Gizo Magistrates' Court office on 19th September 2011 along with necessary fees and procedural requirements. 

The Plaintiffs filed an Unaccepted Settlement Form a requirement set out under Section 12 (2) of the Local Court Amendment Act (Cap.19), 1985 and a Written Statement setting out the extent to which the decision of the chiefs is not acceptable and the reasons for not accepting the decision a requirement provided for under Section 12 (3) (a) and (b) of the same Act.

Brief Background 

On 11th January 2010 at Nila Station Shortland, the Plaintiffs in this matter took dispute before the chiefs in an attempt to settle the dispute over a customary ritual or ceremony called 'HATAPAUSU' in Shortland custom. It was understood that the custom 'HATAPAUSU' was the subject of dispute as it affected the issue of ownership over the Rorau, Kengereai and Toanapina lands. The chiefs' decision then stated that the Hatapausu made and done by one Paul Buare Defendant in this matter was not done in accordance with the customary practices of Shortland. The chiefs determined the issue of Hatapausu relating it to the customary ownership of the lands in dispute by stating in their summary of decision as-"Rorau customary land shall remain as before".

Prior to this dispute these lands were a subject of an acquisition in the early 1970s where the land was then registered for purpose of development. It was then that a Peter Buare understandably uncle of the Plaintiffs with considerable effort took back the land to its original status, meaning customary land owned by the Hambo descendants.

Plaintiffs' Submission

The Plaintiffs submitted that the issue of 'HATAPAUSU' was the subject of dispute where the Defendant in this action did and claimed ownership over a portion of land (Kengereai) situated within the whole land known as Rorau which also covered Toanapina. The Plaintiffs contested that despite the Defendant's assertion that Kengereai is a separate portion and cannot be claimed by the Plaintiffs is clear that it is still inclusive and is situated within the Rorau land described as LR-320 Lot 2. Plaintiffs further submitted through their evidences that the lands in question were customarily and originally owned by Buare Kanugele (Dainamate) father of Madalena and Hambo of which they (Plaintiffs) were descendants of.

Defendant's Submission in response to Plaintiffs' claim

Defendant Paul Buare submitted that he did not made nor has any claim over the Toanapina portion, said that all along he was concerned over the Kengereai portion which he had performed the custom HATAPAUSU to his father's brothers – John Saveke and Paul Kopana. That particular HATAPAUSU was not valid or recognized to be customary as was determined by the FAMOA Council of Chiefs on the 11th January 2010.

Issues:

The issues before the court are:

1.	Whether the HATAPAUSU made by Paul Buare (Defendant) to his uncles was made in accordance with traditional practices of ALU Shortland?

2.	Whether the portions - Toanapina and Kengereai are portions differ from each other and or located separately from the whole land Rorau?

3.	Whether the evidences of the Plaintiff witnesses suffice their claim as the lands in question were an outright property of the Hambo Clan landholding group?

4.	What is the literal meaning of "RORAU CUSTOAMRY LAND SHALL REMAIN AS BEFORE?"

Issue 1

The Plaintiffs in this matter took a claim for scrutiny of the HATAPAUSU before the FAMOA Council of Chiefs to determine in custom whether the Hatapausu made by Defendant is done within the ambit of customary practices and whether it was recognized by the FCC as appropriate and proper in custom. The FCC deliberated and determined that the Hatapausu made by the Defendant is not recognized let alone proper and appropriate in the custom of ALU people in the Shortland. Plaintiffs alleged that the Hatapausu made by the first Defendant did not meet its required purpose merely because he has ulterior motives and that he was influenced by people who have improper agendas. The evidence of an independent witness- Bruce Otuana confirmed in court that as a Secretary then to the FCC, chiefs determined the issue of Hatapausu as not reflective of the traditional Hatapausu commonly practiced by the people of ALU, in Shortland.

HATAPAUSU as a central issue in this dispute is important to note that prior to the recent Hatapausu there was one did by late Peter Buare to Lausi in the ancestral time. That Hatapausu was acknowledged by both parties. That was the one Hatapausu that was respected and recognized by them as that binds all of the Hambo descendants in terms of customary ownership of the land.

Customarily, HATAPAUSU, in the context of custom of ALU in Shortland, the ritual or ceremony must be made known to all members of a tribe or clan consisting of very senior and mature people whom are very well versed with such custom.

Issue 2

According to maps and sketch tendered by parties in court indicated that the portions of land in dispute are within a one whole land customarily known as Rorau described as LR 320 lot 2. The Plaintiffs contested that the Rorau Toanapina Kengereai lands are customarily owned by one Buare kanugele also known as Dainamate whom is the ancestor of the Plaintiffs including the late father of the Defendant.

The Defendant contested issue of customary ownership as claimed by the Plaintiffs. Defendant asserted that since the generation of his father and his father's siblings the lands in dispute were shared according to the following people – Kengereai to Peter Buare, Rorau to Kalola and Toanapina to Hambo's group.

The evidences of all Plaintiffs' witnesses attested otherwise, that since the time of their grandfathers through information from their uncle Peter Buare (late father of Defendant) the land belongs to all of them those whom are descendants of HAMBO.

Issue 3

The third issue is crucial in determining the right in custom of either party to own land. The evidences of the Plaintiff witnesses are credible given their seniority and statuses as they are in their own capacities the great descendants of Hambo. The genealogy of the Hambo descendants as presented by their spokesperson Exhibit MPL1 (exhibited document of Mary Peati Laore) proved the inheritance right of the Plaintiffs in this action. Their genealogy begins with Chief Ferguson (Hani) whose offspring was Buare Kanugele from his marriage to Sinalei. They begot Lausi, Hambo and Kingmele, both Lausi and Kingmele (brothers) did not beget any children. The only surviving and continuing line was the Hambo generation where the current Plaintiffs including father of the Defendant were descendants of, hence, the genealogy of the Plaintiffs is precise, consistent and constructive.

Issue 4

The Famoa Council of Chiefs is the chiefs' forum that has jurisdiction within the locality of where the dispute arose. The FCC is the mandated Council that deals with issues of the community and people hence it is bestowed with profound and fundamental responsibility to smooth out issues of its people. It is therefore and as alternate to the chiefs this court applies customary law in its jurisdiction thus felt oblige to interpret the precise meaning of the expression of the FCC "Remain as before". In this context, it simply means that the way of life and traditions of the owners of the Rorau land and the ownership in custom of the Rorau land does not change.

DECISION

1)	Rorau (Toanapina/Kengereai) customary land described as LR320 Lot 2 is owned in custom by all descendants of Hambo.

2)	The issue of HATAPAUSU made by the Defendant is hereby confirmed inappropriate in custom.

3)	The Plaintiffs to observe and respect the relationship of late Peter Buare's son Paul Buare Defendant as their brother (first cousin).

4)	Any beneficial interests derived from the land must include the Defendant but subject to approval of the Plaintiffs.

Orders: 
-A reconciliation to be caused by both parties within a reasonable time to reconcile their differences.

-No costs applied to either party

R.O.A Explained

Aloysius Ora	--------------------------------	President	
Dominic Bakele	--------------------------------	Member	
Philip Barry	--------------------------------	Member	
Timothy L Ngele	--------------------------------	Clerk	

Dated this the 14th day of October 2015
Gizo
Western Province

THE LOCAL COURT