In re Estate of Kona [1998] SBHC 84; HCSI-CC 331 of 1995 (15 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 331 of 1995

IN THE ESTATE OF FRED KONA –
(DECEASED) OF VILU ESTATE, WEST GUADALCANAL

High Court of Solomon Islands
(Muria, CJ)
Civil Case Deceased No. 331 of 1995

Hearing: 24 July 1997
Judgment: 15 May 1998

G. Suri for the Applicant
L. Kwaiga for the Respondent

JUDGMENT

MURIA C.J.: 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 judgment is therefore limited to the questions 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 Kana and adopted daughter also named Mary.

Sections 104 and 104A of the Wills, Probate & Administration 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 104A 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 104A. 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. Land is an immovable property and so, properly, for the purpose of section 104A of the Act, it must be governed by the custom of the place where such land is situated.

In a traditional society like Solomon Islands, it is important to note that an indigenous Solomon Islander and his tribe are closely linked to their land and their custom governs the use and control of their land. The deceased in the present case, was a member of the Kakau Tribe into which he was initiated and became a member of in the early 1950’s. At the time of his death, the deceased was still a member of the Kakau Tribe in the Sahalu area of North West Guadalcanal where the land in question is situated. The custom which governed that link between the deceased and his land in the present case must therefore be the custom of the Kakau Tribe having effect in the area where the land is situated.

Accordingly the current customary usage applicable for the purposes of sections 104 and 104A of the Wills, Probate and Administration Act is that which is common to the deceased and the land in question. In the present case it must be the current customary usage commonly applied by the deceased’s tribe, Kakau Tribe, in respect of land at the place where the land in question is situated.

Question answered accordingly.

(GJB Muria)
CHIEF JUSTICE