Kwakwae v Gwangaru [2012] SBHC 13; HCSI-CC 314 of 2007 (2 February 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case no. 314 of 2007

Sale Kwakwae and Genika (Representing Auridi/Rafea Tribe of Kwaio
The Claimants

V

Gwangaru, Waiselo Sau and Kuki Foosi (Representing Aenafou/Naege Tribe of Kwaio
The Defendants

Hearing: 30 August 2011
Judgment: 2nd February 2012

M. Tagini for the Appellants
J. Keniapisia for the Respondents.

Palmer CJ:

1. This is an appeal by the Appellants, Sale Kwakwae and Genika, representing the Auridi/Rafea tribe against the determination of the Customary Land Appeal Court (Malaita) ("the CLAC") of 14 May 2007. In its determination the CLAC held inter alia that:
   
   • (i) The Local Court Decree delivered on the 17th May 1999 (sic) is hereby upheld.
     
   • (ii) The Appellant continues to use his existing properties and other rights through his female connection to Aenafou.
     
2. The dispute is between two tribes represented by the parties in this case, the Appellant representing the Auridi/Rafea tribe ("the Rafea tribe") and the Respondents representing the Aenafou/Naege tribe ("the Aenafou tribe"). The names of the two customary lands are Rafea land and Aenafou land respectively. Ownership of these two lands is not in dispute. What is in dispute is the boundary they share. The Appellants claim the boundary between them is along the Daribaita river, the Respondents say it is along the Dikwiri river.
   
3. In its decision delivered on 27 May 1999, the Local Court determined that the customary boundary ran along the Dikwiri river.
   
4. That decision was appealed to the CLAC which heard the appeal on 22nd May 2006. A survey was carried out on 25 May 2006, proceedings continued on 16 April 2007 and a further survey conducted on 18 April 2007 with judgment delivered on 14 May 2007.
   
5. The CLAC dismissed the appeal and upheld the decision of the Local Court. It also made an order which recognized the rights of the Appellant's tribe to continue the usage of existing properties and other rights within Aenafou land.
   
6. The Appellant appeals against that order of the CLAC. In support, five grounds were relied on. The first alleges that the CLAC erred in law in that the decision was against the weight of customary evidence in relation to land ownership, especially tambu sites.
   
7. The second ground alleges that the CLAC erred by not giving due weight to evidences of tambu and sacrificial sites, instead it gave undue weight to an allegation by the Respondents that the Appellant's tribe was merely allowed to establish and use those tambu and sacrificial sites through an alleged female marital relationship. They say that this was contrary to the evidence on the genealogies provided. They say too that the CLAC did not properly enquire into the alleged marital relationship and female rights before deliberating on the evidential value of the tambu and sacrificial sites.
   
8. The third ground alleges bias against the President through a private meeting he was alleged to have had with two members of the Respondent's tribe.
   
9. The fourth ground alleges bias against the Vice President for receiving a basket with shell money in it, and the final ground alleges bias again on the basis that one of the defendants and a witness in that case had accompanied the CLAC in its tour of the Lord Howe Islands after which the CLAC delivered its decision.
   

Appeal ground 1.

10. The issue of assessment and consideration of customary evidence on its merits, including the weight to be attached to the material before it lies solely within the jurisdiction of the land courts, the CLAC and the Local Court. In so far as the issue of tambu sites is concerned, the CLAC did take that into account in its deliberations before making its determination. At page 3 of its judgment it stated:
    

"The Appellant further trace that Local Court fail to survey on (Auridi) which this court did went and see. During the survey CLAC party had seen the site. Appellant stated his last pagan priest (Peter Bebeu) was buried at Mataburu. The Respondent also claims along the way a shrine call Alai which belongs to the Naege tribe, the Appellant stated that Alai is a Furuitau and further stated that his grandfather was buried there." [emphasis added]

So contrary to what the Appellant suggests, the CLAC also considered and visited the tambu sites of the Appellant at Auridi called Etea, Umuniwaruda, Umunisiunga and Umungiongila and noted his claims that his devil Waleimae was buried there. The CLAC also considered his submission regarding his stone called Lalai Founiala'a and its significance. During harvest time for ngali nuts, their priest would place the nuts upon the stone, recite custom prayers and crack them before throwing them onto the grave of their ancestor buried there.

At the same time, the CLAC also noted the claims of the Respondent regarding Naege land. It noted that the founder's eldest son, Misilalamua was buried there and that they offered burnt sacrifice (Su'ua) for him there. They also noted that the place, which they called Naege Tauongila was used for feasting and dancing. They also noted that the place was a hill which had been leveled by Gerenae, from the third generation to Misilalamu, who was the original discoverer of Naege.

11. It is important as well to appreciate that the issue which the CLAC sought to address under ground 1 of the Appeal before them related to the claim of the Appellant that the Local Court did not go into the disputed land area to consider the customary evidence sought to be relied on by the parties. It is clear from the proceedings before the CLAC that this particular concern was fully addressed by the CLAC through the survey which they carried out themselves as well as consider all the relevant supporting material provided by the parties.
    
12. I am satisfied there is sufficient material in the records to show that they visited the disputed sites and considered the supporting stories of each party in relation to their tambu sites and areas of significance that had been identified during the survey.
    
13. It is for them to decide on whose story and claims of evidence to believe and accept as more credible. I am not satisfied on the material before me that their determination on the survey material and information obtained was against the weight of evidence, instead they carefully balanced both parties customary evidence in relation to their tambu sites and their respective claims to the correct boundary before making their decision as to whose story and supporting evidence to accept. This appeal ground is dismissed.
    

Appeal ground 2.

14. The second appeal ground is somewhat similar to appeal ground 1 alleging that the CLAC did not give due weight to their customary evidence, instead it gave undue weight to an allegation by the Respondents that the Appellant's tribe were merely allowed to establish and use those tambu and sacrificial sites because of an alleged female marital relationship, and in the alternative that the CLAC failed to properly enquire into that relationship before determining the evidential value of their customary evidence.
    
15. The first part to this appeal point I have already dealt with in appeal ground 1. In addition to those matters, in his submissions before the CLAC the Respondent did refer to a finding by the Local Court during the survey in which they noted that within the Daribaita areas only the Defendants (Aenafou people) had existing properties. They say that this is consistent with their ownership of land within that area. This is to be contrasted to the finding of the Local Court that in the Dikwiri area the Court observed that both parties had their properties located within that area.
    
16. Further, in their submissions before the CLAC, the Respondents reiterated their customary evidence of ownership by virtue of their fishing ponds, Erifolo, Namosubua, Laukwairiu, Gwe'edafo, and Gwe'erigi. These had been referred to as well before the Local Court in the statement of Timothy Bofanata.
    
17. The Respondents also referred to their tambu sites, Alai, Firialo, Kwainialo, Dalakunu, Tasisi, Diudolo, Bubunilakwa, Lakwana and Diudolo within the disputed land in their submissions before the CLAC to support their claims of ownership of the land. They also referred to a spot along the Dikwiri river called To'osifofo'oa where special prayers in custom were offered for fishing activities.
    
18. I am satisfied sufficient customary evidence was before the CLAC to enable them make a determination on the issue of ownership and boundary.
    
19. On the issue of the alleged relationship referred to, it is important to appreciate the context in which it was raised. The CLAC had made reference to that relationship when dealing with ground 2 of the Appeal of the Appellant before it.
    
20. That appeal ground (before the CLAC) in essence alleged that there was no evidence to support the claim of the Respondent to the boundary being fixed at Dikwiri and that the court did not consider his evidence of ownership in relation to the tambu site with stones over the disputed land. It also reiterated their grievance of a failure to conduct a land survey.
    
21. When dealing with this appeal point however, the CLAC did consider in particular the evidence in relation to the fishing ponds of the parties. For instance at the Namobuloa pool, the Appellant claimed that his devil Oania was killed there. The Respondent however contended that he was killed because he was stealing fish from this pool. The Respondent's claim is that the pool belonged to them. The Appellant however maintained that he was returning from Usua on his way back and was swimming in the pool when he was killed. He did not state however the reason why he was killed.
    
22. The CLAC also noted, which they were entitled to do in the absence of any contradiction to that assertion, the fact of the burial under a ngali nut tree, that if this person was of some significance that there should have been evidence of preservation rather than being merely buried under a ngali nut tree and the site not properly preserved.
    
23. The CLAC also took into account and noted that the Appellant had properties in Auridi such as coconut plantation, cattle project, banana, betel-nuts and gardens. After carefully assessing their evidence they noted the explanation provided by the Respondents as to how those activities and properties were allowed to be done, that it was by virtue of a female marital relationship.
    
24. I am not satisfied however that undue weight was given to this factor in determining the question of ownership and boundary. There was adequate material before the CLAC to enable them come equally to the conclusion as to which boundary was the correct one. What weight they attach to those customary evidence is properly a matter within their knowledge and understanding.
    
25. The issue of customary law is a matter for the Local Courts and CLAC to hear and determine. Those justices are the best people to determine the application of customary law as it applies to the people and the land and the significance of any customary evidence adduced in argument.
    
26. This applies equally to the rights in custom of the parties to their tambu sites, whether these exist and whether they demonstrate ownership or other rights, such as settlement rights. As pointed out the relevant place to resolve those issues are before the Local Courts and the CLAC who have jurisdiction to deal with those matters.
    
27. I am not satisfied the Appellants have shown that there was no evidence to support the claims of ownership of the Respondents over the disputed land and their claim on the correct boundary.
    
28. The issue of genealogy, their ties, links, connections, significance and the value to be attached to them is a matter for the land courts to determine. I am not satisfied any error has been shown which would warrant any intervention from this court.
    
29. In his submissions, Mr. Tagini sought to argue as well that the CLAC erred in that the issue of appeal was over the boundary of the Auridi land and not ownership of Naege land. I fail to see how this distinction amounts to an error when the decision of the CLAC was quite simple in upholding the decision of the Local Court dated 17 May 1999. That decision found that the correct boundary between the two lands is the Dikwiri river.
    
30. In his submissions, Mr. Tagini also sought to argue that reliance was placed on a different tribe's claim, the Naege over Naege land. This however was never raised before the Local Court or the CLAC and it is not open to the Appellant to raise that now. The Respondent's claim however is that their claim is tied closely with the Naege tribe and people.
    
31. On the issue of the map itself, what has been of significance throughout has been the surveys conducted by the Local Court and the CLAC in which the parties were able to recount their customary evidence. A sketch map will always remain inaccurate in terms of distances and locations, it does give an indication however of the whereabouts of place names, tambu sites etc. I am not satisfied this raises any significant issue that would amount to an error which would warrant the intervention of this court.
    
32. On the question of sales of land by Sale, that evidence is but part and parcel of the total evidence which was considered by the CLAC before reaching its decision. Again I am not satisfied this issues raises any significant issue on the question whether the CLAC erred in its determination.
    

Ground 3.

33. This ground can shortly be disposed of. The allegation is based on observations made by two persons who claimed to have seen two members from the Respondent's tribe visit the President of the CLAC at the Rest House where he was staying. He did not attend the survey due to his health and physical condition.
    
34. The two witnesses called in support of this allegation say that they saw the two persons going in and staying with the President for some 20 or so minutes before going away again despite the President making it clear that no one was to see him. Apart from that visitation nothing further was raised. The main allegation would seem to be the perception or suspicion that such visit would attract even if it was innocent.
    
35. In contrast, the President, Adam Kwaeria gave evidence denying this incident outright as having been fabricated. He also stated that he did not know the two persons described in the witnesses claim.
    
36. It is for the Appellant to prove on the balance of probabilities that such a meeting did take place and that it amounts sufficiently to a real likelihood and or reasonable suspicion of bias. I have heard the witnesses, observed their demeanors, carefully considered the submissions and come to the conclusion that this appeal ground has not been proven on the balance of probabilities and is dismissed.
    

Ground 4.

37. Ground 4 can also be shortly disposed of. Again the evidence in support has not been proven to the required standard. I have listened carefully to the evidence of the witnesses and accept the explanations provided by Jackson Lea'afuna ("Jackson") and Paul Solo ("Paul") to be more credible. Both denied the gift and receipt of any shell money other than the basket.
    
38. In contrast the evidence adduced in support by Sale Kwakwae and Ruel Rusimu only referred purportedly to when the basket was shown to them by Jackson. They did not actually witness the occasion when the basket was given. They also said that when the basket was given by Paul it was purportedly given on behalf of another person. This however has been denied by Jack and Paul and I accept their explanation as bearing the truth in this matter.
    
39. Further, I am not satisfied that this gift showed actual or any real likelihood of bias in the decision making process of the CLAC. There is no inkling that this transaction influenced in any way the decision or deliberations of the CLAC in this matter. This appeal ground must also be dismissed.
    

Appeal Ground 5.

40. This ground should also be dismissed as having no merit. Mere association without more is insufficient to show or uphold allegations of bias. Apart from travelling together in a boat as a member of the Local Court together with other members of the CLAC there is simply no connection or evidence to suggest that this association raised any real likelihood or reasonable suspicion of bias by the CLAC against the Appellants. The CLAC members that travelled in that boat were on their way to Lord Howe Island to hear cases. The President does not recall that particular incident. It seems too far-fetched and remote to amount to any real likelihood or suspicion of bias. Apart from travelling in that boat there is virtually nothing to support the allegation. Accordingly it must also be dismissed.
    

Conclusion.

41. I am satisfied that the appeal should be dismissed. The grounds relied on have not been established to the required standard and or shown that any error of law or procedure occurred which would warrant the intervention of this court.
    

Orders of the Court:

1. Dismiss appeal with costs to be taxed if not agreed.
   

The Court.