Usuli v Gagame [1997] SBHC 15; HCSI-CC 243 of 1995 (8 April 1997)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 243 of 1995

DONGA USULI & JOHN SORI

v

TOATA GAGAME, MOLEA GAGAME, KALUAE GAGAME, KALE GAGAME,
KA'ABE GAGAME, MOLEA, SOLOMON LOEA KIA, JOHN LOEA KIA

Before: Lungole-Awich, J

Hearing: 11th & 13th November 1996
Judgment: 8th April 1997

Counsel: A Nori for the Plaintiffs
C Ashley for the 1st - 5th Defendants
M Samuel for the 6th & 7th Defendants

JUDGMENT

LUNGOLE-AWICH, J:

At the end of the trial of this case, the three counsel in the case offered to file written submissions. Court accepted that. By the time of preparing judgment the court had received written submissions only from learned counsel Mr. A Nori for the plaintiffs and Mr. C Ashley for the first to fifth defendants. Learned counsel Mrs. Samuel for the sixth and seventh defendants had not filed her submission. I took that she did not wish to. The plaintiffs, Donga Usuli, now deceased, and John Sori, representing their tribe have filed a case against seven defendants. The first five, Toata Gagame, now deceased and his descendants, Molea, Kaluae, Kale and Ka'abe representing their tribe. The sixth and seventh, Solomon Loea Kia and John Loea Kia are said to be relatives of the first five and therefore belong to a sub-tribe in the tribe of the first five. The claim is for trespass, damages for removed gravel and for eviction of the seven and their tribes from a piece of land within Aenagono land in Malaita Province.

The plaintiffs claim, they say, is based on customary ownership of customary land. The ownership, they say, has been confirmed in the decision of Malaita Customary Land Appeal Court dated 6.8.1982. The land in question is part of a larger one known as Aenagono. covering Anokwalekwale, Tafuita and a little beyond, in which the defendants have settled and now have started to establish new homes and gardens. They have also sold gravel from the land. The defendants say that the whole area occupied by them are known as Anokwalekwale and Tafuita and that they own the areas in custom. There was disagreement between the plaintiffs and defendants over the boundaries of Anokwalekwale and Tafuita

The sixth and seventh defendants say that they are in the same area in their own right, not by right arising from the right of Rae tribe to which the first five defendants belong.
This case has a long history dating back to 1934. The plaintiffs' ancestor, Masikisi, was the litigant against ancestor Gagame. The first five defendants have kept their ancestral name, Gagame. In its judgment in Native Land Appeal case, No. 4 of 1972, the High Court of the Western Pacific seemed to have settled the case. Subsequent dispute seems to have arisen because the boundary of that small area within Aenagono was not made certain on the ground. The arguments assumed larger proportion after the death of the original litigants I think that was because their heirs were more uncertain about the boundary.

The defence of Solomon Loea Kia and John Loea Kia, the sixth and seventh defendants that they are on the disputed land in their own right,. independent of the right of the first five is rejected. The first witness for the plaintiffs, John Sori, established that the grandfather of the two defendants were present at court during the local court hearing in July 1981, and that they came as relatives of the Gagames; they had given permission to Gagame to speak for them. That was confirmed by the first witness for defence, Molea Gagame who stated that the tribe of the sixth and seventh defendants was a sub-tribe in theirs, the Rae tribe. The result of a 1991 case over the same land area between the Gagames and the subtribe of the sixth and seventh defendants was also to the effect that the sub-tribe of the sixth and seventh defendants was part of Gagame's tribe. The sixth defendant himself was cross examined about the determination in that 1991 case. He was first silent for a long time, obviously with no explanation. When pressed to answer, he was irrelevant to the question. The 1991 judgment was read in court during cross examination, but not tendered to court as exhibit. In my judgment, the rights of the sixth and seventh defendants, if any, are the same rights available, if so, to the Gagames. As to the rights of the tribe of the plaintiffs, Donga Usuli and John Sori, as against the rights of the defendants, the Gagames and Kias, the decision of the High Court of the Western Pacific in the Native Land Appeal Case No. 4 of 1972 was the final decision on the matter. It was and is still the definitive decision. When the same dispute was taker, to the Local Court at Takwa in July 1981, the Local Court should have dismissed it as a case that had been dealt with. May be the Local Court was not aware of the judgment of the High Court of the Western Pacific in Appeal Case No. 4 of 1972. Likewise the Malaita Customary Land Appeal Court whose judgment is dated 6.8.1982 should have not taken the matter any further than merely explaining, if necessary, the decision in Appeal Case No. 4 of 1972. In fact the court first approached the issue correctly in paragraphs 2 (a) (i) and (iii) by stating that it was bound by the decision in Appeal Case No. 4 of 1972. Then unfortunately the Malaita Customary Land Appeal Court introduced complication, though I think without being aware. by describing the land area in dispute as Lesser Aenagono. The description of the land area over which rights were contested should have remained as stated in the first paragraph of the judgment dated 23.2.1972, in appeal case No.4 of 1972; that description is this:

"The land in this dispute consists of two adjoining plots called respectively Anokwalekwale and Tafuita. They lie on the main road running from Malu'u to the head road and abut onto a small area of swamp fed by a stream called Kafoa Kobi. The area of the land is not extensive and forms part of a much large area called generally Guounsoro".

The decision in that case is that the plaintiffs have no beneficial interest in the land known as Anokwalekwale and Tafuita. The decree referred to a map attached. I must say that in the testimonies given in this court, it became clear that maps have been tampered with. It is not certain that the map now filed in this case with the judgment was the map before the High Court in 1972. It is safer to disregard the map filed as annexure to the judgment in appeal No. 4 of 1972. If there is doubt about the boundaries, that should be taken to the local court to point out. And I must warn that in that event the local court will not go into the merits of the cases of the parties. Its duty will be limited to pointing out the boundaries of the land areas known as Anokwalekwale and Tafuita as stated in words in paragraph one of the judgment in appeal case No 4 of 1972. I have quoted the words in this judgment. It is the guide to determine the boundaries.

The claim of the plaintiffs, based on the judgment of the Malaita Customary Land Appeal Court, dated 6.8.1992 is dismissed. The plaintiffs have no beneficial interests in Anokwalekwale and Tafuita. The defendants have, but they must stick to and not go beyond the boundaries of Anokwalekwale and Tafuita, described in judgment of the High Court of the Western Pacific in Native Appeal case No. 4 of 1972. If they have established homes and gardens beyond the boundaries, they must vacate and surrender those homes and gardens to the plaintiffs. I have already said that any uncertainty about the boundaries is to be taken to the Local Court to point out on the land itself.

Costs

The plaintiffs and defendants 1 to 5, will bear their costs. That is because I think the question of identifying the boundaries of Anokwalekwale and Tafuita was one which if it occurred, could be taken to court by mutual agreement. As between the sixth and seventh defendants, the plaintiffs succeed in as far as the defence has been rejected. The sixth and seventh defendants are condemned to pay costs to the plaintiffs.

Dated this 8th day of April 1997
At the High Court, Honiara

SAM LUNGOLE-AWICH,
JUDGE