Maelalo v Siuto'ona [1997] SBHC 58; HC-LAC 011 of 1996 (28 May 1997)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 11 of 1996

PHILIP MAELALO & PETER OBADIAH

v.

ZEBULON SIUTO'ONA

Before: Palmer J

Hearing: 15th May, 1997
Judgment: 28th May, 1997

Counsel: C. Solosaia for the Appellant; T. Kama for the Respondent

JUDGMENT

PALMER J.: This is an appeal against the decision of the Malaita Customary Land Appeal Court (herein-after referred to as the "CLAC"), dated 16th November, 1994, which upheld the decision of the Local Court that had awarded ownership of Boeboe Land to the Respondents; Zebulon Siuto'ona and Henry Tofe. Henry Tofe appears to have been joined as a party and took part in the proceedings before the Local Court but not before the Chiefs hearings.

The grounds of appeal read as follows:

1. That the Customary Land Appeal Court made a procedural error when it accepted that the two Respondents were related and proceeded to hear the case when the Respondent Henry Tofe did not go before the Chiefs in accordance with the Local Court (Amendment) Act of 1985.

2. The Customary Land Appeal Court erred in disregarding the genealogy of Watewa (Z. Siuto'ona's father) in 1948 case and consequently arrived at the wrong finding.

3. That the Customary Land Appeal Court erred by over emphasising the fact that appellants' ancestor Bironimae (f) had no brothers or sisters thus wrongly concluding that because of that fact the appellant's genealogy and therefore right of ownership of land was questionable.

4. That the Customary Land Appeal Court erred when it questioned whether the Appellant's ancestor Teomaoma was married on the one hand and accepting that the Appellant's genealogy from Fanani to D.K. Erea (Jnr.) covered 10 generations on the other hand.

The issue which the Appellant seeks to raise in respect of point (1) of the appeal appears to be that the CLAC had committed an error in accepting that Henry Tofe and Zebulon Siuto'ona were related to each other when they were not, and that accordingly the matter should have been terminated and returned to the Chiefs for rehearing in accordance with the requirements of the Local Court (Amendment) Act, 1985. The CLAC to that extent had committed a procedural error in not sending the matter back.

With respect however, the error if any, was not one of law or even of procedure, but one on evidence; that is, whether Henry Tofe and Zebulon Siuto'ona were related to each other or not. If they were, and there was evidence on which the CLAC could make that finding, then they were entitled to allow Henry Tofe to act as a spokesman for Zebulon Siuto'ona and to join him as a Respondent. The issue here accordingly is not so much whether the hearing should have been terminated and sent back to the Chiefs Committee, as to whether there was evidence before the CLAC to accept Henry Tofe as being related to Zebulon Siuto'ona.

In the objection raised to Henry Tofe acting as a spokesman for Zebulon Siuto'ona, the ground raised by the Appellant related more to what occurred in the Chiefs hearing where one of the Chiefs who sat to hear the dispute was Banaboso, a brother of Henry Tofe. In its judgment, the CLAC held that it was a matter for the Local Court to rule upon, and in any event, the hearing before the Local Court was a hearing de novo. Accordingly it would have made little difference as to how the Local Court eventually ruled on the dispute. The records in the CLAC proceedings do not show that the issue as to the relationship of Zebulon Siuto'ona and Henry Tofe was ever raised, though I can accept that it is possible it was raised but not recorded. In his response nevertheless, Henry Tofe stated at top of page 10 of the Appeal Records, that Siuto'ona and him were from one line. It is pertinent to take note also of the fact that in the Local Court, Henry Tofe had clearly spelled out his relationship with Zebulon when giving evidence and during cross-examination by the Appellant in the Local Court (see pages 32 and 33 of the Appeal Records). The Local Court record of proceedings obviously must have been available to the CLAC when it considered the objection of the Appellant. I am satisfied accordingly that there was evidence before the CLAC to make the ruling it did in allowing Henry Tofe to act as the spokesman for Zebulon Siuto'ona and to join him as one of the Respondents. In the circumstances it was not necessary to have the case terminated and remitted to the Chiefs Committee for re-hearing in accordance with the requirements of the Local Courts (Amendment) Act, 1985. The claim of the Respondents in essence and as clearly supported by evidence had been the same and not different, as may have sought to be implied by the Appellant. I am not satisfied any error of law or even of procedure had been committed by the CLAC and that accordingly ground 1 of the Appeal should be dismissed.

Ground 2 of the Appeal seeks to suggest it seems that the CLAC had committed an error of law when it disregarded the genealogy of Watewa (Zebulon Siuto'ona's father) presented in a 1948 case involving a separate land called Kwaruasi Land. The point raised it seems was that had the CLAC not disregarded that genealogy presented by Watewa, that it would not have accepted the genealogy presented by Siuto'ona as genuine and rejected it. If Watewa and Siuto'ona were basing their genealogy claims as members of the same tribe then their genealogies would have been the same irrespective of the names of the customary lands being claimed. With respect however, this very point had been raised before the CLAC and properly considered by that Court as a matter within its jurisdiction to assess, weigh and rule upon, after hearing all the customary evidence from the parties. This they have done. They were entitled to rule or find, that the genealogies which related to different lands, in this case genealogies pertaining to Kwaruiasi and Aroa lands, were totally different and irrelevant to the case before them ( see page 6 of the Appeal Records, at "Point 3", second sentence).

Having said that, I note the point sought to be raised by the Appellant that if the genealogy which the Respondent seeks to rely on in respect of Boeboe land is the same as the one relied on by his father in the dispute in respect of Kwaruiasi Land, then they should be the same. It is pertinent to note however that the genealogy relied on in the 1948 case commenced from an ancestor named "Koara" (see page 52 of Appeal Records), whilst in the current case, the genealogy relied on originated from Kokako down several generations through to Marero and Edanimae as the key ancestors who discovered and settled the said land. It is pertinent to note that the genealogy presented by Siuto'ona did include Koara. Whilst there may appear to be discrepancies in the two genealogies presented, it should be borne in mind that genealogies should be expected to vary depending on which ancestor the claim or right of ownership is being traced from. In the 1948 Case, clearly it was through Koara, but not in the current case which had been traced from Kokako and particularly through Marero (Mareo) and Edanamae. There are bound to be differences in the genealogies in the circumstances. These were clearly borne in mind by the CLAC and also the Local Court as can be seen in the records of proceedings (see Point 3 at page 6 of the Appeal Records and page 42 at the 6th sentence). I am satisfied the CLAC and the Local Court did consider the matter raised by the Appellant and ruled on it. Their ruling in effect was to disregard the genealogy presented by the Appellant in respect of Watewas' claim in the 1948 Case over Kwaruiasi and Aroa lands. With respect, I fail to find any error of law on the ruling made by the CLAC.

Further, it should be borne in mind that the CLAC and the Local Court did not consider the issue of genealogy in isolation but together with all other customary evidence that had been raised in the hearings. See second paragraph of Point 3 at page 6, the CLAC made the following pertinent conclusion..

"Through the genealogy of the Respondents with the custom factors which linked him to Boeboe his genealogy was accepted "

This appeal ground must also be dismissed.

The third ground of appeal raised seeks to argue that the CLAC erred in holding that because the female ancestor (Bironimae), which the Appellant seeks to rely on did not have any brothers or sisters that his rights over Boeboe Land were questionable. In oral submissions before this Court however, it became clear that the error sought to be relied on was not that of the CLAC but that of the Local Court. The point sought to be relied on was that the Local Court was wrong in saying that because Bironimae had no brothers or sisters that their genealogy was questionable.

Whilst that may have been implied in the judgment of the Local Court, it is clear that the Local Court was fully aware of the claims of the parties through their respective female ancestors. At paragraph 1 of its judgment, it outlined in essence the respective claims of the parties:

"Court finds that plaintiffs claimed they are heirs of Fauani through Biranimae (1) female of Boeboe. Defendant's claimed they are heirs of Kokako through female linealogy of Edanimae (f) of Boeboe land. "

The Local Court then went on to assess the genealogy of the Plaintiff and came to the conclusion that it did not accept that Teomaoma was from Boeboe land but rather from the male lineage of Oreore land. This obviously they were entitled to hold bearing in mind the fact that they would be better acquainted with the custom practices and genealogies of the parties than this Court.

The CLAC did consider the same issues raised by the Appellant but also came to the same conclusion that the Local Court was correct in coming to those conclusions. At page 5 of the Appeal Records Point 2 the CLAC made the following pertinent comments:

"If one looks at the judgment para 1 carefully, what the Local Court was saying is that Court finds both parties were claiming their ownership through female but they have different genealogies. And according to their findings in custom the Respondent's genealogy was accepted as true to own Boeboe. "

Also at page 6, point 3, the CLAC made the same comments:

"In our view the Local Court is correct to ignore the genealogies of Kwaruiasi and Aroa as these two lands are totally different from Boeboe land which is in dispute.

Through the genealogy of the Respondents with the custom factors which linked him to Boeboe his genealogy was accepted. "

What is clear is that the Local Court and CLAC both considered the totality of the evidence before them and then ruled on the genealogy of the parties.

The same can be said in respect of the suggestion that the CLAC was wrong in coming to the conclusion that because the Respondents' genealogy had brothers or sisters that they should be given rights of ownership over Boeboe land. The issue of genealogy was only one of the issues which the CLAC and the Local Court had to consider. I am not satisfied that any error of law had been committed and accordingly this ground also must be dismissed.

The fourth ground in a way is a repeat of the third ground in that the main argument sought to be raised was that the CLAC had completely overlooked the fact that the Appellants' genealogy was traced from Fauani down through Kokere and through Bironimae (female), the only child of Kokere, and thereby inherited her fathers rights to land. Unfortunately, this is not entirely correct because the CLAC was as much aware of the genealogy claims of the Appellant as the Local Court was, but came to the conclusion that the Local Court was correct in its findings on the genealogy of the parties. See page 5 of the Appeal Records at "Point 2", 3rd and 4th sentences. page 6 of the Appeal Records, Point 3, 3rd and 4th sentences; and page 6, point 4.

What can be concluded from the comments of the CLAC cited above, contrary to the Appellants' claim, is that they were fully aware of the claim of the Appellant from Fauani through Biranimae, but that on the balance of probabilities the Local Court and the CLAC did not accept the genealogy of the Appellant.

Any suggestions that the Local Court or the CLAC may have overlooked or disregarded the generations of Fauani and Kokere cannot with respect be substantiated. In the very first paragraph of the Local Courts' judgment, it spelled out clearly what the Plaintiffs' (Appellants) claim was; that is that they claim to be heirs of and descendants of Fauani through Biranimae. In the CLAC judgment at point 4, the Court recognised that the claim of the Appellant originated from Fauani and that down to the current generation of D.K. Erea is 10 generations.

Another suggestion sought to be made was that in the Respondents' evidence before the CLAC he actually supported the claims of the Appellant. The Appellant referred to page 20 of the Appeal Records to an answer to a question from the Appellant as follows:

Q. How do you say that Biranimae from Katangu?

A. Fauani from Katangu married a woman Rualiu land. Who begat Biranimae. "

Unfortunately, the reference above does not and cannot be viewed as supporting any suggestion that the Respondent was agreeing to the Appellants' claim to Boeboe. Whilst the Respondent may have given some recognition to the genealogy claims of the Appellant, it is clear that he does not concede that the Appellant were the original discoverers of Boeboe.

Another reference made by the Appellant at page 22 of the Appeal Records seeks to suggest that the Respondents claim was the same as the Appellants. I quote (Respondent speaking):

"I am the owner of Boeboe by Fauani who discovered Boeboe."

Unfortunately, the rest of the evidence of the Respondent does not correspond or quite agree with the above statement. In his last second sentence, he states:

"My first priest Kokako and last priest Marero."

The clear evidence in the Local Court also was that the Respondents' genealogy had been traced from Kokako and not from Fauani. It is more likely than not therefore, that the reference to Fauani was a mere typing error.

Another reference made by the Appellant pertains to the evidence of Hurry (sic) Maefelo in the Local Court (page 39 of the Appeal Records), in which he seeks to suggest that this witnesses evidence supported his claim to Fauani as the discoverer of Boeboe. Unfortunately, whilst reference may have been made to Fauani in the evidence of Hurry Maefelo, he denied that he was the discoverer of Boeboe land. Hurry Maefelos' evidence in essence was to point out that the genealogy used by the Appellant (tracing his claim through Fauani), belonged to him, not the Appellant, and that Fauani was not the discoverer of Boeboe land.

"When I came down to the land Boeboe I found Siutoona inhabited the land Boeboe disputed today. "

It was not correct therefore for the Appellant to seek to rely on the evidence of Hurry Maefelo.

An important point which must not be lost sight of and which I have alluded to, is that the Local Court and the CLAC did not assess the issue of genealogy in isolation but in conjunction with all other customary evidence presented by the parties. I am not satisfied that any error of law had been committed by the CLAC and this last ground must also be dismissed.

ORDERS OF THE COURT:

1. Dismiss appeal.

2. Uphold orders of the Customary Land Appeal Court (Malaita) dated 16th November, 1994.

3. Costs of the Respondent (if any) to be borne by the Appellant.

THE COURT.