In re the Estate of Fred Kona [1995] SBHC 22; HC-CCD 331 of 1995 (1 January 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Deceased No. 331 of 1995

IN THE ESTATE OF FRED KONA LATE OF VILU ESTATE, WEST GUADALCANAL PROVINCE, FARMER DECEASED INTESTATE

High Court of Solomon Islands
(Muria, CJ)

Hearing:
Judgment:

JUDGMENT

In this application by way of notice of motion, the applicant seeks to have the question of proof of “current customary usage” referred to the Local Court pursuant to sections 104 & 104A of the Wills, Probate & Administration Act. Both parties agreed that this court should refer the matter to the Local Court.

The question which the parties seek this court to determine is: which or whose “current customary usage” is to be applied? It must be noted that this court is not asked to determine what the actual custom is to be applied. The power to do that is vested in the Local Court and not in this court. This judgement is therefore limited to the two matters raised in the submissions by counsel in their argument, namely: that the custom to be applied is that of the place where the land is situated, as submitted by the applicant; or that the custom to be applied is that of the deceased at the time of his death, as argued by the respondent.

Briefly, it can be said, and there is no dispute to it, that the deceased Fred Kona, came from West Kwara’ae, Malaita and came to live on Guadalcanal in or before the early 1950’s. In or about 1953, the deceased, following a custom initiation ceremony, was admitted into and became a member of the Kakau Tribe which is one of the main tribes on Guadalcanal, where the deceased lived. Having joined the Kakau Tribe and being a member of that tribe the deceased was given a piece of customary land as a gift at Vilu, later registered and now described as Parcel No.191-050-88. Later in the same year 1953, the deceased bought a piece of land at Vilu which was later registered also and now described as Parcel No.191-050-23. Not only did the late Fred Kona became a member of the Kakau Tribe and obtained land in the area where he lived, but he was also made a Chief of Kakau Tribe in the particular area of Sahalu in 1967 in accordance with the custom of the area. He died in 1991, leaving his widow Mary Kona and adopted daughter also named Mary.

Sections 104 and 104A of the WP&A Act referred to by counsel are in the following terms:

“104 Where for the purposes of any of the provisions of this Act or regulations made thereunder proof of any current customary usage is required, unless otherwise specifically provided, it shall be lawful for the Court -

(a) to refer to the matter in question by way of a case stated to the appropriate local court or Customary Land Appeal Court and to accept the certificate of such court (as the case may be) as evidence of the local custom applicable and the Court may in its discretion accept such certificate as conclusive proof of such custom; or

(b) to accept the oral or affidavit evidence of witnesses who, in the opinion of the Court, are competent to speak as to such local custom; or

(c) to refer to text books, reports (whether published or not), or other works of reference, official records relating to local custom; or

(d) to satisfy itself as to the application of local custom by all or any of the aforesaid means.

104 A. Where a Solomon Islander dies intestate and any perpetual estate owned by him does form part of the residuary estate, the devolution of such perpetual estate shall be in accordance with the current customary usage is certified by the Local Court having jurisdiction in the area where the land is situated.

It will be observed that while proof of “current customary usage” may be required for the purpose of any of the provisions of the Act, section 104 A specifically required the devolution of the deceased’s perpetual estate to be in accordance with the “current customary usage” as certified by the Local Court having jurisdiction in the area where the land is situated. There is in my view a tripartite consideration in section 104 A. Firstly, there is the current customary usage as certified; secondly, there is the Local Court with the jurisdiction; and thirdly, there is the area where the land is situated. There is a link among those three considerations. That link is the land to be devolved. For the custom to be applied to the land is that which the Local Court certifies and for the Local Court to do so, it must have jurisdiction in the area where the land is situated. There is therefore a strong case for the argument that the custom to be applied must be that of the area where the land is situated. Perhaps Parliament saw it fit to make provisions restricting the disposition of land held by Solomon Islanders who died without making a will to be in accordance with the custom of the area where the land is situated.

Customary land is an immovable property and so, properly, it must be governed by the custom of the place where such land is situated.

(GJB Muria)
CHIEF JUSTICE