Siamakana v Taqolo [2000] SBHC 79; HCSI-CC 219 of 1997 (29 February 2000)

CC 219, 97, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 219 of 1997

SAMSON SIAMAKANA

V

WONDING TAQOLO, PIRIVOSORO ELIJAH, KOLI TAGOLO, AND HILSON JOSHUA

In the High Court of Solomon Islands
(Palmer J)

Civil Case No. 219 of 1997

Hearing: 24th February 2000
Sentence: 29th February 2000

P. Lavery for the Applicant
A.Nori for the Respondents

PALMER J.: The Respondents in this case have each been charged for contempt of Court in respect of the order of this Court dated 16th August 1994 (hereinafter referred to as “the 1994 Order”). The specific allegations of instances of breaches committed by these Respondents are better particularised as follows:

(1). In respect of Won ding Taqolo: Cutting timber on four occasions; collecting coconuts on two occasions; building houses on two occasions, destroying coconuts collected, and construction of a copra shed.

(2). In respect of Elijah Pirivosoro: Collecting coconuts on one occasion, making gardens on two occasions and building a house.

(3) In respect of Koli Taqolo: Cutting timber at Koburua, and building a house.

(4) In respect of Hilson Joshua: Making gardens and building houses.

(See affidavits of Lijie Samson Siamakana filed on 27 November 1997 and 12 September 1997; affidavits of Mathias Gaki filed 2nd March 1998; affidavit of Lee Soro filed 18 May 1998, and affidavit of Simmo Siamakana filed 23 September 1999).

In the hearing before this Court on 25th October 1999, learned Counsel Mr. Nori on behalf of the Respondents conceded that a contempt had been committed by his clients. In his mitigation before this Court however, learned Counsel highlighted before this Court a number of pertinent points which he felt impinge on any penalty that this Court might impose.

The first mitigating point raised was that the parties in this case are members of the bigger tribe called the SELEVANGA TRIBE. It was submitted by learned Counsel that in a land case between Tangolo v. Kontokomboi held in 1936, the father of Wonding Tagolo represented the Selevanga Tribe, of which the Applicant was a member. The area of land litigated in that court case was a bigger area which included Sasalo Land; stretching from Parana River to Vasele River. It was sought to be suggested from this that the Respondents being members of the same tribe as the Applicant must be viewed as having some rights in custom in Sasalo Land, whether these be residential rights in custom or whatever, as evidenced by their existence and residence within said land for generations and having properties, fruit trees and coconut trees, and that they cannot just be evicted by the Applicant without taking into account such rights in custom.

I have had the opportunity to consider in detail the affidavit evidence adduced in support by the parties in respect of this matter and come to the conclusion that what was submitted by learned Counsel concerning membership of a bigger tribe is correct. This is conceded by the Applicant in his affidavit filed 26 October 1999 at paragraph 15 (see Exhibit 19). The Parties (Applicant and the Respondents) descended from three brothers, Vitukana, Kuliveke and Toromeji, who in turn were descended from Selevanga of the fourth generation. If ownership over Sasalo Land is to be traced to Selevanga then it would seem to be consistent with the submissions of learned Counsel for the Respondents that they may very well have some form of rights in custom in the said land. The matter however did not stop there. It was taken a step further by the Applicant in 1961 when he opened a Native Court Case with Tangolo (the father of the First and Third Respondents). A copy of that court decision is annexed to the affidavit of Samson Siamakana filed 26 October 1999 and marked Exhibit 2. The Court decided in favour of the Applicant. That decision has never been appealed against and remains to date as a binding and effective decision between the parties over Sasalo Land. Learned Counsel Mr. Nori however, has highlighted a point which not only is interesting, but seeks to expose a weakness or a flaw in the adversarial system of justice. This is the failure to consider in detail what rights (if any) in custom that Tangolo would have over Sasalo Land as a member of the Selevanga Tribe. In the transcript of evidence of the 1961 Case, Siamakana traced division of the Selevanga tribal land to Maju. He pointed out Maju divided the Lands to his sons. I quote: “one half to Vitukana, one half to Tiromeji, one to Qili and the other to Kuliveke.” Siamakana however did not go further to identify the boundaries of those lands as divided between the four sons. What area of land for instance was given to Tiromeji? On the other hand, in his statement to that court, Tangolo states that his tribe had resided in Sasalo Lands for twelve generations. Even before this Court the Respondents continue to make this bold assertion which seems not to have been refuted satisfactorily by the Applicant. This raises the question as to the effect of the decision of the 1961 Case in custom! Whilst it cannot be denied as a matter of law (through the adversarial system of justice) that the ownership of Sasalo Land had been decided in favour of the Applicant in the 1961 Case, the effect of this in custom has never been addressed it seems by the Native Court. This was all the more important in the light of the evidence before the court that Tangolo and Siamakana originated from two brothers Vitukana and Tiromeji. Having won ownership over Sasalo Land in 1961, did that entitle Siamakana to expel or evict Tangolo from Sasalo Land, or that ownership was held to the exclusion of Tangolo; or did that merely mean that the line of authority between them was now established such that for any new ventures, activities, or developments which Tangolo may which to engage in, can now only be done after express permission had been obtained from Siamakana? If what Tangolo states is true, that he had been residing in the said area for the past twelve generations, what effect in custom would such decision have? Would he still be entitled to reside in the same village he had been residing in for generations and be entitled to harvest the fruit trees and coconuts that he had planted? Would he also be entitled to continue making gardens in the same areas he had been making gardens for the past generations?

The second matter raised pertained to a native court case between Siamakana v. Pirivosoro, civil case number 3 of 1964. It was sought to be submitted by learned Counsel Mr. Nori that the terms of the Court Order dated 16 August 1994 were far reaching than what was decided in that case. It is not disputed Civil Case No.3 of 1964 entailed a dispute over ownership of four groups of coconuts over certain parts of Sasalo Land. Unfortunately the Order dated 16 August 1994 was not confined to that case only but also included the effect of the earlier decision in 1961 which expressly stated that Sasalo Land was owned by Siamakana.

The third matter raised was that the Respondents claimed to have been residing within the said land for many generations prior to the various court decisions. Also that they had planted coconut and fruit trees and made gardens in the said land. This with respect has not been satisfactorily refuted in the evidence before me. If that is so, then it would only seem proper that the Respondents be allowed to remain in their villages in Sasalo Land which had been in existence for generations and be allowed access to their gardens, coconut and fruit trees that they had planted. They cannot however engage in new activities, clear new areas of land for any other purposes without the express permission of the Applicant. That would include felling of trees whether for building or sale or whatever purpose. The decisions of the Native Courts in 1961 and 1964 stand binding on the parties and their relatives and cannot be altered. It might seem harsh and unjust to the Respondents but it is something they would have to accept and live with.

The fourth point raised pertained to the service of the Orders of the 16th August 1994. With respect, that cannot be taken too seriously by this Court. It wasn’t as if the Respondents were not represented in Court on 16th August 1994. They had learned Counsel Mrs. Samuels present in Court, clearly with instructions to act on their behalf, together with other representatives of their line, Henister Vaekesa, Lester and Billy Tagolo. If they did not know of the orders immediately they had no one to blame, only themselves and their representatives in court at that time.

The fifth mitigating point raised pertained to the kind of activities committed by the Respondents which had resulted in the breaches alleged by the Applicant. Learned Counsel pointed out the activities committed by the Respondents were normal village activities consistent with their belief that they had right to reside in the said land as members of the Selevanga Tribe and the fact they had been residing in the said land for generations. Whilst that is noted, the fact remains that for any new activities whatsoever that the Respondents may wish to embark on they will have to get used to the simple fact that ownership of Sasalo Land vests in Siamakana and permission must be obtained from him. This includes the use of coconut trees that belong to Siamakana apart from the coconut trees and fruit trees (if any) of the Respondents themselves.

Finally, the Respondents have expressed remorse for their actions by asking learned Counsel to apologise on their behalf to the Applicant and to the Court.

I must balance all these however with the fact that the Respondents have continued to act in a manner inconsistent with the ownership title of the Applicant since the 1961 Native Court decision and culminating with the blatant breaches of the Orders of this Court dated 16th August 1994. That is most unfortunate. There must come a point in time when the Respondents will have to accept the decisions and orders of the court and learn to respect them whether they like it or not. And if they refuse to accept them, they will have to be penalised for it.

It seems to me what is paramount now is for a reconciliation ceremony to be arranged between the parties which would enable them to come to terms with any issues in custom that needed to be addressed between themselves. That is a matter for the parties themselves to sort out, so that there is peace and harmony amongst themselves and that they may continue to live and co-exist together as one people. I have been impressed by the submissions of learned Counsel Mr. Nori that his clients should be given an opportunity to show their sincerity in this matter by not sending them to prison straight away; rather imposing a fine only or bound over order. I will however make it quite clear, that if this matter should come back to court again whether it be against these same Respondents or any of their relatives on similar charges, they must expect to be sent to prison if convicted. I have also decided to impose the same penalty on these Respondents rather than trying to single out the various breaches committed by them. They had all been guilty of contempt of orders of this Court and I see no reason to make any distinctions. They are all convicted of contempt of court and each fined $300.00, payable in thirty days. They are also to pay the costs of the Applicant in equal shares

ORDERS OF THE COURT:

1. CONVICT ALL RESPONDENTS OF CONTEMPT OF COURT.

2. IMPOSE FINES OF $300-00 EACH TO BE PAYABLE IN THIRTY DAYS.

3. THE RESPONDENTS TO BEAR THE COSTS OF THE APPLICANT IN EQUAL SHARES.

THE COURT