Bugoro v Tango [1997] SBHC 2; HC-LAC 005 & 006 of 1995 (10 January 1997)

lign="centerenter" style="margin-top: 1; margin-bottom: 1">HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case Nos. 5 & 6 of 1995
(Consolidated)

HUGO BUGORO

v

MARTIN TANGO & WILLIE DENIMANA

Before: Palmer J

Hearing: 15th November, 6th December, 1996

Judgment: 10th January, 1997

Counsel: P. Lavery for Appellant / Respondent;

A. Radclyffe for Respondent / Appellant

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PALMER J:

There are two appeals in this case by each party against the decision of the Magistrates Cdated 3rd Februaryruary, 1995. Both appeals raise similar issues and thus have been consolidated and heard together.

The grounds of appeal of the Appellant/Respondent, Hugo Bugoro read as follows:

"1. That the learned Magistrate exceeded its jurisdiction in that after finding that the ownership of the land from Piregha to Kolosori vests in the Thogokama, Vihuvungi and Posamogo tribes and not Mr. Martin Tango, it erroneously held that Mr Martin Tango is the lawful trustee of the land on behalf of the Thogokama, Vihuvunagi and the Posamogo tribes.

2. That the learned Magistrate misdirected himself in that it paid excessive attention to the evidence that father of the respondent, Mr. Tango, "played much role in the arrangement on the actual customary payment" of the said land without enquiring further into other evidences as relevant to succession to trusteeship.

3. That the learned Magistrate exceeded its jurisdiction in that it does not have the power to determine the trusteeship for the owners of the Piregha to Kolosori land."

(Note ground 3 above was withdrawn prior to the hearing.)

That of the Respondent/Appellant read as follows:

"The decision of the learned magistrate was not one that a reasonable tribunal could reach on the evidence adduced in that:

(a) The decision in Gao/Bughotu Native Court Case No. 1/67 was misinterpreted by the Acquisition Officer and the learned magistrate. That judgment clearly supports the Appellant's claim that his father bought the land personally and not on behalf of a tribe.

(b) Neither the Appellant nor the Respondent can, in custom, represent 3 different tribes.

(c) The Land & Titles Act does not state that it is the function of the Acquisition Officer to determine the identity of trustees."

(Note, that grounds (b) and (c) above were withdrawn prior to the hearing and not pursued.)

Background facts.

By notice of appointment dated 14th August, 1992, the Commissioner of Lands appointed Laury Penrose Palmer as an Acquisition Officer for purposes of acquiring customary land on Isabel Island for mining. His appointment was made pursuant to section 60(1) of the Land and Titles Act (Cap.93) (herein-after referred to as "the Act") The customary land for acquisition is known as KOLOSORI LAND.

The duties and powers of the Acquisition Officer are set out in Part V of the said Act. Under section 61 of the Act, he is required inter alia, to "make a written agreement for the purchase or lease of the land required with the persons who purport to be the owners or with the duly authorised representative of such owners". This was done by him after he had held the first public hearing at Vulavu Village, West Bugotu on 3rd October, 1992. The persons he identified to make the written agreement with inter alia, were Martin Tango and Hugho Bughoro (see the first part of the Acquisition Report from page 1-16).

Under section 62, he was then required to publicize by way of a written notice in such manner as he considered to be adequate or most effective for the purpose of bringing to the attention of persons affected details inter alia of that agreement and of another public hearing which would be held to hear any contrary claims. That public hearing was subsequently held at Huali. Village, East Bughotu on 30th October, 1992.

Under section 63, he was required in that public hearing to hear any contrary claims and to make a determination as to the " . . . identity of the persons who have the right to sell or lease the land and receive the purchase money or rent". This, Mr Penrose Palmer has conveniently and with great care recorded his findings in the second part of his twenty-five page report commencing from page 17-24 with relevant exhibits attached. Both parties have been provided copies of the said report.

His Report can be summarised as follows. Six separate groups of land-owners have been identified making claims over six separate areas of land within Kolosori Land (see page 2 of the Report). Those groups have been identified as G1 to G6 (page 2 of the Report). It appears that the division of Kolosori customary land into six identifiable smaller customary land areas has not been disputed.

The area of land within Kolosori land that is of concern in this appeal is the area marked PIREGHA-KOLOSORI (BEUHUTU), and the claimants in respect of the said land is the group marked G2. In his Report at page 5, the Acquisition Officer identified two opposing claims as to ownership within the said group. One group was represented by Hugho Bugoro, and the other, Martin Tango. Their respective claims can be summed up as follows. They do not dispute that the area of land in dispute had been purchased initially from Chief Nelson Tatari of TAVIA tribe. What is disputed is whether the purchase had been made by SILAS TANGO in his personal capacity, or by him together with his two brothers, DENIS HAGHATANO and PAUL FOTA, jointly.

Martin Tango, the Appellant in Civil Case No. 6 of 1995 and Respondent in Civil Case No. 5 of 1995, is the son of Silas Tango, whilst Hugho Bugoro, Appellant in Civil Case No. 5 of 1995 and Respondent in Civil Case No. 6 of 1995, is the son of Denis Haghatano. It appears that Hugo Bughoro represents the claim of the descendants of the other two brothers; Denis and Paul, and takes the view that the land had been purchased by the three brothers jointly, and not by Silas alone. Martin Tango takes the view that the land had been purchased by his father in his personal capacity, and therefore the descendants of the other two brothers do not have any interest in the said land.

The findings of the Acquisition Officer.

At page 23 of his Report, the learned Acquisition Officer made the following findings:

"Therefore taking into account everything which was said by Martin Tango and Hugho Bughoro and the witnesses including all the documents produced, I dismissed the claim by Martin Tango and determined that the land was owned by Thogokama, Vihuvunagi and Posomogo tribes which now be represented by Martin Tango for the Thogokama Hugho Bughoro for Vihuvunagi and Posomogo Tribes.

However, when he made his final decision, at the end of his Report (page 24), the learned Acquisition Officer dropped Martin Tango and entered Hugho Bughoro as the only representative for the three tribes identified above. The determination by the Acquisition Officer that the three tribes were the owners of the said land is somewhat interesting because initially, the issue that was before him was as to whether ownership was in the sole capacity of Silas Tango or jointly with his brothers. It appears however, that the reference to the three tribes was a direct result from his finding that the land had been purchased by the three brothers jointly. I will say more on this later.

The findings and decision of the Acquisition Officer was appealed to the Magistrates Court, and eventually re-heard on 9th November, 1994. Judgment was delivered on 2nd February, 1995. The learned Magistrate upheld the findings of the Acquisition Officer that the purchase of the said land had been effected by the three brothers on behalf of their people and not by Silas Tango in his personal capacity. He differed however, from the decision of the Acquisition Officer as to who should represent the interests of the three tribes and replaced Hugho Bughoro with Martin Tango.

It is that decision, that Hugho Bughoro appeals against to this Court in Civil Case No. 5 of 1995, arguing in essence that it was wrong; that the rightful person to represent the interests of the three tribes, should be him.

Martin Tango on the other hand, argues that the findings of the learned Magistrate that the purchase had been effected by the three brothers jointly was not one that a reasonable tribunal could reach on the evidence in that the court had misinterpreted the decision of the Gao/Bughotu Native Court Case No. 1/67. He argues that the case did not support the finding that the land had been purchased by the three brothers jointly; rather it supported his contention that the purchase had been effected by Silas Tango in his personal capacity. In that regard, he argues that the Magistrate Court had committed an error of law which would warrant the intervention of this Court.

The Gao/Bughotu Native Case No. 1167.

The only copies of that Native Court Case which had been made available to this court prior to the hearing are the photo-stat copies of the pages marked "BNL8" and "BNL9" in the Report of the Acquisition Officer. No issue has been raised as to the authenticity of those copies and so I am satisfied I can rely on them as correct and accurate copies of the relevant pages in the record of proceedings of that case.

The statement of the learned Magistrate relating to his opinion of that case is contained at page 3 of his judgment, paragraphs (6) and (7):

"I have read the records of Acquisition Officer and examined the document presented and available to him which formed the basis of his determinations. I find nothing wrong when the Acquisition Officer made such determination of the ownership of Piregha-Kolosori.

This conclusion is strengthen (sic) by the Gao/Bugotu Native Court Case No. 1/67 held at Sepi Village on 20th September 1967 in respect to Kolosori-Piregha land. The evidence before the Court was that Silas Tango was a leader among his people and that he acted for his people. And therefore that the decision of Native Court appeared in their Judgement/0rder cannot be interpreted as Silas Tango alone, but Silas Tango for his people."

It is important to understand the context in which the opinion of the learned Magistrate was expressed. This was that having found nothing wrong with the determination of the Acquisition Officer, that ownership of Piregha-Kolosori vested in the three brothers, he too was of the opinion that the above Native Court Case supported that finding.

The relevant part in the Report of the Acquisition Officer which contains his view of the same case reads as follows:

"In a court case No. 1/67 held at Sepi on 20th Feb 1961, Silas Tango confirmed in his statement that he was acting for his people and people of Hagheulu."

This statement was also made in the context that it supported his view that the purchase of the said land had been done by the three brothers jointly.

The Issue in this case.

The issue for this court to consider is whether the interpretation made by the learned Magistrate (and also the Acquisition Officer) correct; that the said Native Court Case (that is taking into account the statements in exhibits "BNL8" and "BNL9") supported their conclusions or findings, that the land had been purchased by the three brothers as opposed to Silas Tango in his personal capacity. If not, whether this is fatal to the ultimate finding that the land had been purchased by the three brothers jointly.

Assessment of the Gao/Bugotu Native Court Case No. 1/67.

First I will assess the statement of Silas Tango separately, as contained in exhibit "BNL8". His statement reads as follows:

"Silas Tango:- When my people came from Loaloga village, to live at Pirega near Kolosori, and also my people of Hageulu and Kologajoga used that area, I was try hard to find out the LandOwner, when I am know that Nelson Tatari is the true owner of that land, then I went to Florida Island to meet him at Tahi Village, and had talk with him about the Land. So he let it to me and then I took him with me to S. Ysabel to have our meeting with the Council President E.Bako Vice President John Fafi and other Council members, to discussed Nelson Tatari agreed that I shall take over the land from him by giving him some crafts work and foods, which was our custom payment of Land. "

The first point to note about the above statement is that there is no direct and express statement by Silas Tango to the effect that the purchase had been made for his people or his tribe. According to his matrilineal society, if the land had been purchased for his tribe, then it should be a reference to the tribe of his mother; which is the Posomogho tribe. According to the exhibit marked "BNL3", all the children of Paul Ikoi and Hilda Vuro were classified as of the Posomogho tribe. Was the land purchased for the Posomogha tribe? There is no direct statement to that effect and even if there was some suggestion to that effect, it would be still uncertain which tribe is meant.

It should also be pointed out here that even if there were suggestions that the purchase had been made for "his people-, that term also is ambiguous. Who are those people? Is it a reference to his own family members, his tribe of Posomogho, and does it also include the tribe of his father, Nakmiru Funei Tribe? Are there other tribes which he looked after, and if so, what are those tribes?

Secondly, there is no direct or express statement to the effect that the purchase had been done by the three brothers together or that ownership vested in the three brothers jointly. This raises further questions, whether the purchase had been done by the three brothers jointly as the sole beneficiaries or whether it had been done jointly as "trustees in custom" for others, and if the latter, then who are the "others".

Thirdly, there is no direct or express statement or even a faint suggestion that the purchase had been done by him for the benefit of the three tribes; Posomogho, Vihuvunagi and Thogokama.I will say more on this later.

Having made those negative comments, what did in fact his statement say? If a literal interpretation is applied, then the finding by the Acquisition Officer that ". . . Silas Tango confirmed in his statement that he was acting for his people and people of Hagheulu" and the suggestion that it supported the view that the land had been purchased by the three brothers, were clearly misplaced. There was no direct statement or a suggestion to that effect. To that extent it would be correct to say that the statement of Silas Tango as contained in the decision of the Gao/Bugotu Native Court in Land Case No. 1/67 had been mis-interpreted.

However, I remind myself here of the context in which the views of the Acquisition Officer and learned Magistrate had been expressed. This in my respectful view is important because it appears that both took the view that the case supported their finding that the land had been purchased by the three brothers jointly. The question for this court to consider therefore can be posed thus; if the statement of Silas Tango and the case as a whole is considered in the context of all other evidence which the Acquisition Officer and the learned Magistrate had heard and considered, is their view still misplaced or a misinterpretation. It should be borne in mind that the reference to the decision in that Native Court Case was not done in isolation but in relation to other evidence before the Acquisition Officer and learned Magistrate. Also it is important to appreciate that in the cultural context of Solomon Islands society, the use of the first person is often done in a representative capacity. Further, in order to get a complete or full understanding of any particular transaction, quite often it is necessary to go behind the history of that transaction, rather than confining oneself to that particular event.

It appears that what has happened here is that, the Acquisition Officer and learned Magistrate had not confined themselves merely to the literal words and sentences used, but to consider them together with what they had heard in evidence and during submissions. I have to restrain myself therefore from taking an overly legalistic approach in the interpretation of Silas Tango's statement and the case as a whole.

If the statement of Dennis Hathatano in exhibit "BNL9" is also considered, then the picture now takes on a slightly different appearance. His statement is quoted in full here:

"I am the brother of Silas Tango, when we know that Nelson Tataru was the owner of Kolosori-Pirega land, both of us made 2 large, I small canoes, 80 paddles, and foods before we called Nelson Tatari with all the Councillors to gather together at Kologajoga village to hold our meeting and discussed the land. "en Nelson Tatari agreed to give us the land of Kolosori-Pirega, a woman Tasulonga said that Garuchu Island will let it for myself and doses Regimana, it is not include Kolosori-Pirega land. "

The above statement now gives the clear impression that he, Dennis Hathatano was also one of the owners, if not, one of the beneficiaries of the said land. So while the statement of Silas Tango on its own, is silent on the question whether the three brothers may have been involved directly in the purchase of the said land, there is evidence to suggest otherwise in the statement of Dennis Hathatano.

This brings me to consider the question whether there is other evidence on which the Acquisition Officer and the learned Magistrate may have based their crucial findings of ownership apart from the decision in that Native Court Case. This is important to determine now because the views expressed by the Acquisition Officer and the learned Magistrate were in the context that the Native Court case 1/67 supported, or strengthened that ultimate finding.

The evidence at the Acquisition Proceedings.

Pages 5-10 of the Report of the Acquisition Officer contains relevant information as to the claims of both parties and the findings of the Acquisition Officer as to the persons who purport to be the owners or the duly authorised representatives of such owners as required by section 61(d) of the Land & Titles Act. At page 10, the Acquisition Officer made the following findings:

"I was convinced and satisfied that the land was originally belong to Tavia and was bought by Silas Tango, Denis and Paul. I was satisfied that most correspondences referring to Silas because he was the elders but I did not believe that the feast made for the purchase of land was prepared by Silas Tango's group alone. The purchase price was enormous that it was not an act of individual tribe but a result of combination activities by the tribes.

I was satisfied that Silas was the leading finger (sic) but in our society when a leader said something it was not meant for himself but for the tribes. Note what N. Tatari said in para 5 of the extract. "If I say OK it covers all. " I took this as the words of leaders, spoken for and on behalf of the people.

I was also satisfied that the feasts were made to Silas Tango but these feasts did not contain elements of conveyance but elements of expression of gratitude.

I was convinced that the feast made by the children of Silas to Silas himself was for the purpose of conveyancing the land to his children but I also noted that this conveyance was only for Kolojonga land and not the whole area claimed by the three tribes.

I therefore believed that Vihuvunaghi, Posamogho and Thogokama tribe owned the land they claimed and accepted that Mr Bughoro to sign and Martin Tango to sign for and on behalf of Thogokama tribe."

After the above findings had been made, the Acquisition Officer again heard witnesses and the claims of both parties before making a final determination as required under section 64 and 65 of the Land & Titles Act. It should be borne in mind that not only did the Acquisition Officer re-heard the claims of both parties, but that he would have been in a better position to make comparisons with what he had heard earlier.

The evidence as assessed and summarised by the Acquisition Officer in his Report read as follows:

"Mr Hugho Bughoro claimed that the land is for the three tribes, Thogokama, Vihuvunagi and Posomogo tribes. He said this land was bought by the 3 brothers, Silas Tango, Denies Hathatango and Paul Fota. These three people bought the land from Nelson Tatari. The price was huge. (see page 6 of this report).

Nathaniel Supa (Snr) the witness supported that the feast was made by Silas Tango, Denies Hathatango and Paul Fota. The feast was the price for the land.

Fredric Gavira another witness also confirmed that this land was owned by Silas Tango, Denies Hathatango and Paul Fota from Nelson Tatari. He said he was actually built the canoe for the three brothers. He said he remembered the second feast given to Silas Tango by the children. Silas Tango was silent that time. Denies Hathatango gave the speech. Denies said he was so appreciated for the food, feast given but he cannot give the land to the children. The land was for the tribes so it cannot be divided The only thing which he offered was a cattle project which owned by himself. So the land was remained for the three tribes. The other two witnesses Kitchener Kataghe and Paul Ridge also confirmed in their statement that the land was bought by the three brothers, therefore the land was owned by Silas Tango, Denies (sic) Hathatango and Paul Fota."

(see page 20 his Report)

The finding of the Acquisition Officer after his assessment of the evidence as heard by him was again that the land was owned by Thogokama, Vihuvunagi and Posamogo tribes. At page 23 of his Report, this was what he said:

"Therefore taking into account everything which was said by Martin Tango and Hugho Bughoro and the witnesses including all the documents produced, I dismissed the claim by Martin Tango and determined that the land was owned by Thogokama, Vihuvunagi and Posomogo tribes which now be represented by Martin Tango for the Thogokama Hugho Bughoro for Vihuvunagi and Posomogo tribes."

The answer to the question posed whether there are other evidence before the Acquisition Officer apart from the statements contained in that Native Court Case must be answered in the affirmative. The second and related question is whether there are reasonable grounds on which the Acquisition Officer had based his findings on. The answer with respect must again be in the affirmative.

It is important to appreciate that it is not the function of this court in this appeal hearing to re-shift and re-assess all the evidence heard by the Acquisition Officer and the Magistrate in the lower court, and to make its own finding on them. Questions of weight are matters for the Acquisition Officer and Magistrate alone to assess. They were in a better position to hear and observe the witnesses giving evidence and submissions and to determine the appropriate weight to be placed on them. What is quite clear to me, and obviously to the learned Magistrate as well, was that there was evidence on which the Acquisition Officer could base his finding or conclusion on, that the purchase had been made by the three brothers jointly, and that it was not an unreasonable conclusion. The learned Magistrate correctly declined to intervene in that finding and so do I.

Having so ruled, the learned Magistrate went on to express his own finding that the Gao/Bugotu Native Court Case No. 1/67 strengthened the conclusion reached by the Acquisition Officer. It is important to note that the learned Magistrate not only reheard evidence from the witnesses of the Appellant (Hugho Bughoro), but also heard evidence from five witnesses of the Respondent which for some reason had not given evidence in the acquisition proceedings. And of-course he had the Report of the Acquisition Officer before him for his own consideration and assessment. There was therefore more than sufficient evidence before the learned Magistrate for his consideration apart from the decision in that case.

Having carefully considered his view, that the Native Court Case No.1/67 showed that ". . . Silas Tango was a leader among his people and that he acted for his people. . ." against the back-drop of all other evidence available before him, I am unable to come to the conclusion that it had been mis-interpreted. There are references in the statement of Silas Tango to "his people" which could be regarded by implication as linked to his quest for land. There is evidence too before the Magistrate which showed that he was a leader or some sort of chief and elder, and therefore by implication, any references and actions done in the first person could also be interpreted as actions done in a representative capacity. It would not be such an unreasonable view to hold, that he was acting for his people. But if the statement of Dennis Hathatano is considered as well, then there is clear support for such view by the learned Magistrate. I am not satisfied therefore that the decision in the Gao/Bugotu Native Court Case No. 1/67 was necessarily mis-interpreted by the learned Magistrate.

But even if it had been mis-interpreted, I am still not satisfied that it would have been fatal to the ultimate finding and conclusion of the Acquisition Officer and the learned Magistrate, that Kolosori-Piregha land had been purchased by the three brothers jointly. There is sufficient evidence on which such finding or conclusion could be made apart from the decision in the Gao/Bugotu Native Court Case No. 1/67. The appeal ground of the Respondent, Martin Tango therefore must be dismissed.

The appeal grounds of Hugho Bughoro.

The first appeal ground seeks to argue that the learned Magistrate had exceeded his jurisdiction in identifying Martin Tango as the lawful trustee for the three tribes. Thogokama, Vihuvunagi and Posomogo. The reason given in essence was that if three tribes were involved, then at least the other two tribes should be entitled to have a separate representative as well. Apart from this, no other submission has been made to show that the decision made by the learned Magistrate was indeed erroneous in law.

With respect, he was perfectly entitled to make such a finding, and I see no reason to interfere. It should be borne in mind, that despite the findings made as to ownership of the said land, only Silas Tango's name was mentioned in respect of the said land for all those years until the present. There is nothing wrong or unlawful about the finding made by the learned Magistrate. This ground must be dismissed.

As to the second ground of appeal that there had been mis-direction on the part of the learned Magistrate, with respect, that must be dismissed also. There is evidence to support the conclusion made by the learned Magistrate that ". . . Appellant's father played much role in the arrangement and actually customary payment than the 1st Respondent's father . . . ." I find nothing wrong with that finding.

Finally, there appears to be some confusion if not, uncertainty as to the use of certain terms, which should be clarified. It appears that the reference by the Acquisition Officer to the three tribes, Posomogho,, Vihuvunagi and Thogokama as owners of the said land, erroneous or mistaken. This description has been used inter-changeably with ownership by the three brothers jointly. For instance, at page 22, last sentence of paragraph 7, having made the determination that the said land had been bought by the three brothers for the three tribes (it seems that what was actually meant was for their children), the Acquisition Officer then went on to identify the names of the tribes of the children which they had inherited matrilineally.

The inheritance of the children in respect of the said land however, did not descend matrilineally. It came directly from their fathers, Silas, Dennis, and Paul, unless there was an automatic transfer of their land fights to their wives on marriage. If that was the case, then the identification of the children by their tribal names as inherited from their mothers (that is the wives of the three brothers) would be correct. However, there is no evidence to that effect. Further, if that was correct, then the land rights in respect of those three tribes are to be confined only to the direct descendants of the wives of the three brothers; Dorah Tanesi, Janet Lao and Deborah Gaseadi and no one else.

It seems more probable that what was meant was that the references to ownership by the three tribes, was a referral to the direct descendants of the three brothers. There was no suggestion to show that it had been bought by the three brothers for the benefit of others; though it is clear on the evidence that many other people did assist them in the preparation of the feast. It cannot be correct also to say that the land had been bought by the Posomogho tribe, because there is no evidence to that effect. The clear finding by the Acquisition Officer and learned Magistrate on the evidence available before them was that the land had been bought by the three brothers.

It would be more correct therefore to describe ownership as vesting in the three brothers and devolving upon their children on their death. To that extent, I feel obliged to change the names of the three tribes, and replace them with the names of the Clans of Silas, Dennis and Paul.

ORDERS OF THE COURT

1. Dismiss appeals of the Appellant and Respondent in Land Appeal Case Nos. 5 & 6 of 1995.

2. Uphold orders of the Magistrate Court, but with the following variation:

(a) Substitute the names of the three tribes, Thogokama, Vihuvunagi and Posomogho", with the names of the "Clans of the three brothers, Silas Tango, Dennis Hathatano and Paul Fota".

(b) The order in the Magistrates Court should now read:

"Ownership of Piregha-Kolosori land is vested in the Clans of Silas Tango, Dennis Hathatano, and Paul Fota, and Martin Tango to sign as trustee on their behalf".

3. Each party to bear their own costs.

The Court.