Buga v Ganifiri [1982] SBHC 4; [1982] SILR 119 (29 November 1982)

[1982] SILR 119

HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 10 of 1982

BETWEEN:

BUGA

AND:

GANIFIRI

Before: Daly, C.J.

Date of Judgment: 29^th November 1982

(Daly C.J): This is an appeal against a decision of the Malaita Customary Land Appeal Court (the CLAC) dated 5th February, 1982. The case concerned what the CLAC described as "a fairly small area of land known as Fera'asi Point, East Kwara'ae".

The Malaita Local Court which had previously heard the case had decided on the 19th March 1981 that the present Respondant Justus Gunfire had lived in the land "for 71 years 2 months and 16 days from 1909 to 1981. Therefore the decision reads "(and here the court described the boundaries)" "Justice Jimmy owns Ferasi land and every properties in it".

The Appellant appealed against the decision. The CLAC heard evidence and argument. They then gave a carefully considered judgment covering two and half pages. I must say at the outset that I am impressed with the quality of the judgment.

It is everything that the judgment of a Customary Land Appeal Court should be. It starts with a description of the land followed by a concise history of the dealings with the land with references to appropriate proceedings. Earlier litigation is examined and found to be not relevant.

The results of the survey of the land are set out and the court's findings of fact as to the original discoverer and the genealogy of his descendants. The court made two important findings in this part of their judgment; the first was that the Respondent had been in uninterrupted possession of the land since 1907; the second was that the Appellant represented the lime of the original discoverer.

The court then went on to set out its findings in relation to custom and I consider it worth setting these out in full as it seems to me that such findings may be useful in other cases where the same point arises.

"So far as the Respondent is concerned, he agrees that he has no tabu places in the land. He claims that he arrived in 1907 and found empty land, which he has occupied and enjoyed without complaint or interruption until the present day. This court wishes to make it entirely clear that ownership of customary land in Malaita may only be based upon traditional customary facts, of which there are five:

i) Original discovery

ii) gift of land by male line to female line

iii) compensation following murder or other atrocity

iv) reward for bravery or other notable service

v) custom purchase from true landowners.

Occupation of land is not necessarily the same as ownership. In custom it is very usual for a man to make his home and gardens in another man's land. This is based upon the principle that nobody is denied the right to live and to feed himself. Such people remain in the land for many generations, and for so long as they live quietly and without disturbance the true landowner raises no objection. But such people do not themselves become landowners, nor can they ever do so. With the passing of time they may acquire the right to live in the land and to engage in subsistence agriculture, but they cannot extend their area or engage in commercial development without the landowner's consent. The Respondent has claimed that his 75 years' "hard work" have given him landownership rights. This contention is contrary to Malaita custom, and we reject it. The Respondent has acquired occupation rights only.

The Respondent has relief heavily upon the Appellant's failure to complain for 75 years. The importance of such failure to complain is entirely a European concept, and has little place in the customary law of land in Solomon Islands. In the colonial period the European administrators and even judicial officers have attached far too much importance to this concept, by which ill-considered judgements were given and leases of doubtful validity negotiated with persons who were not really landowners. A Malaitan would surely be surprised if he were informed that in Britain a landowner may lose all his rights by staying silent for only 12 years. Such concepts cannot be permitted to enter into Malaitan customary law. If the Appellant's case were in other respects weak, based upon doubtful generations and false burial sites, then failure to raise complaint may feature as a further piece of evidence against him. But where the Appellant's case is otherwise strong his failure to complain is irrelevant in customary law.

For these reasons we are sure that the Respondent is not the customary owner of Fera' asi. None of the five facts of customary ownership applies to him. But by his long, occupation of Fera'asi he is entitled to remain living and gardening there, in accordance with custom. For so long as he remains peacefully in the land the Appellant has no power to remove him. But any extension of the Respondent's existing area, and any development, can only be carried out with the Appellant's permission.

Before leaving this case we wish to issue important advice to all Solomon Islanders. During the land survey the court strongly criticised the Appellant for brushing round and exposing his sacrificial and burial sites. We strongly feel that such burial sites should be treated with reverence and respect, and not opened to public view as the Appellant has done. These sacred places are of vital importance in Melanesian custom and it is wrong to spoil them. Christianity does not involve disrespect to sacred customary signs. In these Christian times it is proper to respect such places."

The decree of the court stated that the Respondent had no rights of ownership in the land but might continue to occupy the land peacefully but extension to his area or developments might only be made with the permission of the Appellant, Maenisia and their line.

Against this judgment the Appellant lays three grounds of appeal. The substance of the appeal is that the CLAC should not have given the Respondent a right of possession found that the Appellant had rights of control over the area in custom. Ground 1 claims that a chronological table of the occupation of the Respondent indicates a failure by the CLAC to give proper consideration to the evidence. Grounds 2 and 3 state that the grant of a right to occupation was against the weight of the evidence or based on failure to give proper consideration to the evidence.

This Court has only power to consider point of law (excluding points of custom law) or defects in procedure based upon written law. If no reasonable tribunal could reach the findings made by a customary Land Appeal Court on the evidence before it then it may be that this court could and should exercise its powers to intervene. In any other case for this court to say that it does not agree with findings of fact or custom reached by a customary land appeal court would be assumption of powers which this court does not possess.

In this case the facts were largely not in dispute; what was disputed was the effect of these facts in custom. The court reached a clear conclusion as to the position in custom which it was open to them on the evidence in this case to reach. The Appellant has succeeded neither in his grounds of appeal nor in oral argument in making out a case that this court has power to interfere or should interfere with that decision; a decision made by a court vested by statute with exclusive power to deal with matters of custom on appeal on customary land cases. This appeal must fail and the decision of the CLAC upheld.

I repeat what I say earlier in this judgment. The Vice-President and members of this CLAC deserve congratulations for the form and clarity of their judgment and, if I may respect fully say so, the sound common sense with which they express themselves.

Appeal dismissed with costs to be taxed if not agreed.

Daly, C.J.