Sikua v Boroe [2012] SBHC 6; HCSI-CC 389 of 2010 (31 January 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 389 of 2010

BETWEEN

DEREK SIKUA
(Representing Ulunibeti Landholding Group of the Nekama Tribe)
Claimant

And

KEVIN BOROE, KILUA BOROE, ITOGO BOROE,
VURAI BOROE, VEURA BOROE and BOLI BOROE
First Defendants

And

VENCE SARAU
Second Defendant

Mr Suri for the Claimant
Mr Rano for the First and Second Defendants

Date of Hearing: 7th November 2011
Date of Judgment: 31st January 2012

Ruling

1. These proceedings started life as a Claim filed on 21st October 2010. An interlocutory order was made on 27th October 2010 and an amended claim filed on 4th November 2010. The amended claim seeks a number of declarations and orders relating to land known as Bolikolu/Ithuithu land on Guadalcanal. This case appears to be the latest in a long line of cases involving the land and/or portions of it. The primary issue before the court can be boiled down to the essential question of what rights do any of the parties have in respect of the land.

2. The claim is based on a decision of the Guadalcanal Customary Land Appeal Court ("the CLAC") in a case heard in 1984 and a sale and/or transfer of customary land in 1993. The Defendants, by a defence filed on 10th February 2011, agree there was a CLAC decision but deny the sale of the land in 1993. The defendants also say the named claimant has no right to bring this action. Although it seems slightly illogical, the latter issue can be left to last.

3. The starting point must be the 1984 CLAC decision. Copies of it have been exhibited to several sworn statements but it is easiest to find at page 12 of the court book. The parties to CLAC Cases 10/83 and 16/83 were John Nanau, (Appellant) and Sarau and Joel Sikua, (being respectively First and Second Respondents) and Joel Sikua, (Appellant) and John Nanau, (Respondent). The original Local Court case which gave rise to the CLAC case is exhibited (at pages 60 to 82 inclusive) of the sworn statement of Rolland Sikua filed 13th July 2011. The nature of the dispute is adequately set out in the opening paragraph of the CLAC judgment. The court states:

"Nanau claims a large area called Ithuithu land. Sarau claims a part of it, known as Sole land, and Sikua another part, known as Rubo land. The boundaries of Sole and Rubo lands are shown on the plans produced by Sarau and Sikua and agreed by Nanau.[Unfortunately these plans are not produced in evidence to this court] In addition there are parts of Ithuithu land not in dispute between these people, so we make no decision about them."

Later in the judgment the court says;

"Nanau says he first settled Ithuithu land. Sarau agrees with that, but says the area Nanau settled did not include Sole land, which his ancestors discovered. Sikua says his ancestress Borovi was given Rubo land as a dowry by the then owners.

We were impressed by the details of ancestors and customary properties Nanau was able to give us, and accept (them) so far as it is relevant to his claim to Ithuithu land. But it is also perfectly clear that Sarau and Sikua's lines have been long settled on their parts of it with consent of Nanau's line."

The court then gave its decree;

________
DECREE

Nanau is the first owner of Sole land and Rubo land; Sarau has second rights over Sole land, and Sikua has second rights over Rubo land.

The court had helpfully explained what this meant in a sentence prior to the decree. What it meant was;

"So they (Sarau and Sikua's lines) can keep any houses or gardens there but must not start any new developments without leave of Nanau"

4. The parties in this case accept the CLAC decision is clear. Nanau was the owner of Ithuithu land which included Sole and Rubo land. Sarau had rights over Sole land, namely the right to live there and the right to make gardens on the land. If Sarau (or Sikua) wanted to do anything more than that they had to seek approval from Nanau first. There has been no appeal against the judgment and it is therefore binding against Sarau and his line and Sikua and his line. That, according to the Claimant, all changed in 1993. In August of that year Oliver Vuria "sold" the land to Philip Launa, Rolland Sikua and Francis Nanau.

5. No one disputes Oliver Vuria was the brother of John Nanau. John Nanau had died sometime after the CLAC case. It is not said by any party in this case that Oliver Vuria had no right in custom to sell the land following his brother's death. Obviously the purchasers (Philip Launa, Rolland Sikua and Francis Nanau) could not acquire anything more than originally owned by John Nanau. In other words the purchase could only have been subject to the rights found to exist by the CLAC. There was also a familial relationship between the vendors and the purchaser. No one has disputed that Philip Launa was the son of Oliver Vuria or that Rolland Sikua was the brother of the named Claimant in this case or that Francis Nanau was the son of John Nanau. The reason for the purchase is set out in a sworn statement filed on 14th July 2011 by one of the purchasers, Philip Launa [1]. He explains (at paragraph 8) that neither his late father and nor his late uncle (John Nanau) had any biological sister. He states that as a result neither he nor Francis Nanau would "receive direct succession". In order to protect their families John and Oliver therefore agreed to sell the land.

6. The Defendants in this case challenge the sale. According to them it was in contradiction of custom. The Claimant says in his claim (paragraph 3(c)), "a Customary Land Purchase Agreement (was) made on 5th August 1993.....". The Defendants say in their defence (paragraph 4(c)), "to the Defendants' knowledge no such event took place". Unfortunately for the Second Defendant this is not the first time he has been involved in litigation about this land. There is an earlier High Court case, No. 313 of 1993. That was between Oliver Vuria as Plaintiff and Joel Sikua and Vence Sarau Defendants. The same agreement and sale was raised by Plaintiff in the 1993 case. According to his defence filed on 1st September 1993, Vence Sarau's position then was "there was no notice of sale made, no demarcation of boundary of the land to be sold was made. However the second Defendant knew of the sale [2]". Later in the same document Mr Sarau says there was a meeting before the sale and he was at the meeting. It was his opinion, in 1993, Sole land was not included in the sale. He does not raise the same defence in this case. As for the First Defendant in the 1993 case his defence was that, "Bolikolu/Ithuithu land is separate and not a part of Rubo and Sole land" which, given the very clear judgment of the CLAC, was not an argument that was ever likely to succeed.

7. The main attack of the defendants in this case is against the sale in 1993. An initial foray was in respect of the written agreement for sale. This is seen at pages 15 to 22 of the court book. Counsel for the Defendants objected to these documents. He said they were caught by section 9 of the Stamp Duties Act [Cap. 126]. It says;

No document executed in Solomon Islands or relating, wheresoever executed, to any property situate in Solomon Islands or to any matter or thing done or to be done in Solomon Islands, shall, except in criminal proceedings and in civil proceedings by a Collector to recover any duty or penalty under this Act, be pleaded or given in evidence or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed.

I indicated in court that there were fundamental flaws in the arguments raised at a late stage by the Defendants. First, it was difficult to uphold an objection to pleadings and or evidence when the material which was the basis of the objection was in the court book. Rule 12.3 [3] is clear on the "status" of agreed documents. Chapter 13 of the Rules (particularly Rules 13.6 to 13.10 inclusive) was also relevant. Secondly, the more difficult hurdle for the Defendants to clear was the accepted position in custom which indicates the sale was not completed, in the technical sense, by execution of any written document but by custom ceremonies. There was ample "other" evidence of those ceremonies presented to the court which can be considered. The agreement itself (recital C) acknowledges the land had already been transferred. Thirdly, there was no convincing authority produced showing the document needed to be stamped anyway. The final part of the final sentence of section 9 qualifies the operation of the general exclusion from evidence or pleadings. The exclusion is only operative if the document needed to be stamped "in accordance with the law in force at the time it was first executed". The Defendants produced no authority the agreement dated 5th August 1993 was one which needed to be stamped at the time it was executed. The current Schedule to the Stamp Duties Act does require the grant of an estate or a lease to be stamped but clause 8 of the schedule only refers to, "a grant of an estate (perpetual or fixed term) in land." Section 2 of the Lands and Titles Act [Cap. 133] defines an estate as, "a perpetual estate or a fixed term estate as defined in Part VIII". That part of the Land and Titles Act deals with registered land. It is possible, but no such finding actually needs to be made in this case, that if the agreement were executed today it would attract stamp duty pursuant to clause 1 of the Schedule (of the Stamp Duties Act). That clause appears to be aimed at "unregistered instruments" as set out in section 117 of the Lands and Titles Act. In any event, as indicated above, there was no authority produced to show what the position was in 1993.

8. Evidence of a custom ceremony in 1993 can be seen in the joint sworn statement of Frank Sikua and John Tangithia filed on 4th March 2011. It is to be found beginning at page 43 of the court book. It can be seen in the sworn statement of Philip Launa filed 14th July 2011 (at paragraph 4) which is found beginning at page 47 of the court book. Full details are given in the second sworn statement of the Claimant filed 28th July 2011at paragraph 5 (page 55 of the court book). The only evidence from the Defendants to gainsay the evidence of a proper custom ceremony comes from Bartholomew Vanga (sworn statement filed 25th February 2011 at page 92 of the court book) and Peter Poso (sworn statement filed 5th July 201; page 99 of the court book). Both of these witnesses say what should have happened but neither says it did not happen. In any event I am highly suspicious of the evidence of Mr Poso. He implies the "panel" which sat on 1st July 2011 was a panel representing the Ghaobata Council of Chiefs. The panel deliberated and made certain findings in the absence of any representative from the Claimants. Quite frankly, the evidence from Mr Poso is worthless.

9. Finally, there is the evidence from the Second Defendant as the Second Defendant in Civil Case 313 of 1993. From his defence in that case it is clear he was aware of the sale both before and after the event. He participated in a meeting about the sale. His only complaint in 1993 was that the sale should not have included Sole land and that he was surprised to learn that it had included Sole land.

10. There is overwhelming evidence, even excluding the written agreement, about the custom ceremony in August 1993 when Bolikolu/Ithuithu was "sold" to Philip Launa Francis, Nanau and Rolland Sikua. There is no evidence the ceremony was held otherwise than in accordance with the customary practice current at the time. There was a valid and legitimate disposal or sale of the land in custom. The 1984 CLAC decision makes it abundantly clear that Ithuithu land includes both Rubo and Sole land. There is no evidence produced, nor is it argued, that on a sale of customary land in accordance with customary practices, all rights in the land are extinguished. It is logical to assume that the seller of customary land sells or disposes of his rights but there is absolutely nothing to suggest, in this case, the secondary rights in Sole and Rubo lands found to exist by the CLAC were also extinguished. Those rights have been detailed in paragraphs 3 and 4 above. The felling and sale of timber for commercial purposes goes well beyond what the Defendants submit are their "rights to reside and feed themselves from the fruits of the land".

11. The remaining point of contention is the named Claimant's right to act as a representative. He is clearly named as a representative and he is not acting in a personal capacity. That is the effect of Rules 3.1 to 3.3 [4]. Authority and evidence of the named Claimant's right to represent the Ulunibeti landholding group of the Nekama tribe is given in the sworn statement of Rolland Sikua [5] at paragraph 2, the sworn statement of Philip Launa [6] at paragraph 1 and the sworn statement of Rev Francis Nanau [7] at paragraph 2.

12. The only issue not explored so far is the involvement of the First Defendants. Their defence is premised on the passing of primary rights following the death of John Nanau and Oliver Vuria. That did not happen because the land had been validly transferred as set out above. The First Defendants admit they have a close association with the Second Defendant and that any rights they have are dependent on those of the Second Defendant. If the First Defendants are asserting some distinct and independent right from the Second Defendant they must obtain a valid decision from a customary land tribunal to that effect.

Chetwynd J

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^[1] See page 47 of the court book
^[2] Paragraph 6 of the defence of the Second Defendant filed on 1^st September 1993 in Civil Case 313 of 1993
^[3] Solomon Islands Courts (Civil Procedure) Rules 2007
^[4] Solomon Islands Courts (Civil Procedure) Rules 2007
^[5] Sworn statement filed 13^th July 2011
^[6] Sworn statement filed 14^th July 2011 at page 47 of the court book
^[7] Sworn Statement filed 15^th July 2011 at page 50 of the court book