Maenu'u v Matai [2024] SBHC 95; HCSI-CC 133 of 2022 (16 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maenu’u v Matai
Citation:
Date of decision:	16 August 2024
Parties:	Handyson Lekolo Maenu’u And Henry Maenu’u v Edwin Matai, David Humphrey, Andrew Pinoko, Robert Cheka Remi Liulonga, Kanuto Kovelau, Joana Tave, Gabriel Chiele And Charles Ubumi
Date of hearing:	10 July 2024
Court file number(s):	133 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Judgment is entered in favour of the Defendants. 2. The Claimants are to pay the costs of the Defendants on the standard basis.
Representation:	Mr L Kwana for the Claimants Mr P Teddy for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 240
Cases cited:	Maebata v Maena [2018] SBCA 11

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 133 of 2022

BETWEEN

HANDYSON LEKOLO MAENU’U and HENRY
Claimants

AND:

EDWIN MATAI, DAVID HUMPHREY, ANDREW PINOKO, ROBERT CHEKA REMI LIULONGA, KANUTO KOVELAU, JOANA TAVE, GABRIEL CHIELE and CHARLES UBUMI
Defendants

Date of Hearing: 10 July 2024
Date of Decision: 16 August 2024

Mr L Kwana for the Claimants
Mr P Teddy for the Defendants

Lawry; PJ

JUDGMENT

Introduction

1. The late Paul Maenu’u was from Malaita. Through the 1980s and 1990s he and his family regularly stayed at Komibo customary land in Guadalcanal. On 29 August 1991 he is said to have entered into a written agreement to purchase part of Komibo along the coast in Guadalcanal. The area of land was approximately 300 metres by 200 metres.
2. The vendor of the land is recorded as Mateo Matai, a chief said to be the owner of the land.
3. During the ethnic tensions the late Paul Maenu’u and his family stayed away from the land because of concern over their safety. Paul Maenu’u died in 2015. The Claimants are two of his sons.
4. The Defendants do not agree that the late Paul Maenu’u purchased the land. They say the land is customary land and can only be purchased in accordance with custom. Edwin Matai is the son of Mateo Matai. He denies that his father signed the agreement relied on by the Claimants. He said the signature attributed to Mateo Matai is not his father’s signature. He said that another person has posed as his father and may have entered into an agreement to sell something that did not belong to him and which he could not sell.

The Claim

5. The Claimants relying on the agreement have sought the following orders:
   • "1 An order declaring that the Claimants are owner of land comprises of 300 meters in length and 200 meters in width along the coast known as Komibo “the Property”, West Guadalcanal, Guadalcanal Province, pursuant to Customary Land Sales Agreement dated 29^th August 1991.
   2. That the Claimants take complete occupation or possession of the “Property” without the Defendants’ disturbance, intimidation, harassment, threat, prevention or obstruction.
   3. An order that Penal notice be attached to Order 1 above so that in the event the Defendants breach the said order, police is authorized to conduct arrests.
   4. An order for costs.
   5. Any further orders that court thinks fit to make in the circumstances.”

The Defence

6. The defence deny that the Claimants are entitled to represent the late Paul Maenu’u and in particular deny that the late Paul Maenu’u purchased the land claimed at Komibo. The Defendants say that any marking of boundaries by pegs was not done with the consent of the owners of the land and that after the ethnic crisis that Claimants do not have any rights of ownership over Komibo land.
7. The Defendants have pleaded that Komibo customary land was passed from the late Mateo Matai to Edwin Matai in accordance with custom, and that the Claimants have no standing to bring a claim for ownership of Komibo customary land.

The evidence for the Claimants

8. I have had the opportunity of hearing from a number of witnesses. The first was the Claimant Henry Sui Maenu’u who confirmed his sworn statements and was cross examined at some length. I fund him to be an honest, truthful witness even though he was still a child in the 1980s and early 990s. The only knowledge he had of payments being made by his father the late Paul Maenu’u were from what he was told. He was not present when any payments were made. Annexed to his sworn statement filed on 19 October 2022 is an agreement bearing the date of 29 August 1991. He confirmed that the signature beside the name Paul Maenu’u appearing in that agreement was his father’s signature. It was upon this document that the claim was made that Paul Maenu’u had purchased the land. I accept that in the 1980s and 1990s Henry Maenu’u had regularly been at Komibo until the ethnic tensions. After the ethnic tensions he had returned to the area.
9. Although Paul Maenu’u was from Malaita, Henry Maenu’u said that his father had purchased the land on the beach front at Komibo covering a length of 300 metres and a depth of 200 metres. Henry Maenu’u accepted that he did not know who had witnessed the agreement and had not been present at the time the agreement was signed.
10. Henry Maenu’u was cross examined about the custom of chupu being a Guadalcanal custom that is followed for various purposes including the transfer of customary land. Henry Maenu’u accepted that his father had not undertaken a chupu is respect of that land. Henry Maenu’u was born in 1977 so that by the time of the ethnic tensions he had just reached his twenties. He said in re-examination that in order to respect Guadalcanal custom it was necessary to put forward a chupu. He said it was his intention to put forward a chupu but that the Defendants refused to accept a chupu and that is the reason that the proceedings were commenced.
11. It is clear that Henry Maenu’u was familiar with Komibo, that he understood his father had purchased the Komibo land and that he was prepared to undertake a chupu in accordance with Guadalcanal custom. When challenged he understandably could not say what payments were made by his father back to 1986. He relied on what his father had told him. At paragraph 8 of his sworn statement filed on 25 July 2023 he had said that he did not have receipts or proof of payments going back to 1986. He had said he had been told by his father that all payments had been made with the final payment of $5,000.00 being made when the agreement was signed. At paragraph 9 he described where the markers were placed in the ground to indicate the boundaries.
12. The Court heard from Basilio Bongivati. He was not from Ghaubata tribe but was instructed to mark the boundaries of a portion of Komibo, by the late Paul Maenu’u and the late Mateo Matai. He said that he did so. He said he used three cornered iron rods and cement to secure the rods in the ground. He confirmed that Michael Viu objected to the boundaries being placed on the land. He said Michael Viu had disagreed with marking boundaries and had said that they must consult with their clan. The cross examination then focussed on who was in fact in the clan who needed to be consulted. It was put to him that there was a need to consult more widely than just with sons, uncles and nephews.
13. He confirmed that Paul Maenu’u gave Michael Viu a boat and outboard motor to solve their dispute in custom. He confirmed that the markers are still present. The area of 200 metres by 300 metres was not measured but his approximation. In re-examination he said that Mateo Matai was the one who sold the land and that he was a chief. He confirmed Michael Viu was also of Ghaubata and was an elder in the tribe.
14. Francis Sapi is the son of Michael Viu. He confirmed that Paul Maenu’u had settled and built a house at Komibo before the ethnic tensions. He said his father was not happy that Mateo Matai was selling land to Paul Maenu’u. He said he believed that Paul Maenu’u had negotiated with Michael Viu to purchase the land by buying him two fibreglass boats and a 30 horse power Suzuki engine. He said his father had allowed Paul Maenu’u and his children to live on the land purchased from Mateo Matai. He said much later in 2012 there was a chupu ceremony in respect of the land in 2012. That chupu was not one presented by Paul Maenu’u.
15. In cross examination he said he did not know what had been paid by Paul Maenu’u and he did not understand the purpose of the chupu. So far as the boats and engine were concerned he said they were a present from Paul Maenu’u to Michael Viu.

Evidence for the Defendants

16. The principal evidence for the Defendants came from Edwin Matai who is the son of Mateo Matai. I also heard from David Humphrey and Angela Viu, who is the daughter of Michael Viu. Angela Viu said that the land that was the subject of the dispute was owned equally by Mateo and her father and that her father did not agree to sell the land.
17. David Humphrey gave evidence about the importance of a chupu in relation to establishing ownership in custom and said that there can only be one chupu over the same land. He said the chupu was made to Mateo Matai on 19 September 2012. He annexed to his sworn statement decisions from the Local Court and the Customary Land Appeal Court [‘CLAC’]. The CLAC decision confirmed that Mateo Matai and Michael Viu held equal rights over the subject land. He also confirmed that the sale of the subject land was not discussed with the Haubata tribe. In cross examination he was asked about the Townsville Peace agreement which he had annexed to his sworn statement. He accepted that he did not know details about that agreement.
18. The evidence from Edwin Matai is that the agreement is not what it appears to be in that he says this is not an agreement signed by his father. He said the signature is not his father’s. He has tendered a document that is a copy of a letter from the law firm PT Legal Services addressed to Loboro Kamani in dated 6 October 1994 in which it is alleged that the person who sold land to Paul Maenu’u was Loboro Kimani and that the land sold had been vested in Mateo Matai. Whether this is so or not is not an issue that I need to decide for the reasons that follow. It is likely that Paul Maenu’u knew Mateo Matai well. They had both been at Komibo for a number of years. The evidence of Basilio Bongivati was that he was with both men when the boundary markers were set out.

Discussion

19. The agreement relied on, dated 29 August 1991, if it was a record of an agreement between Paul Maenu’u and Mateo Matai, must be examined closely. The ten paragraphs of the agreement provide as follows:
    • “IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:-
    1. The vendor agrees to sell and the purchaser agrees to purchase all the customary land comprises of 300 metres in length and 200 metres in width along the coast, known as Komibo, West Guadalcanal in the Guadalcanal Province and the sale is subject to conditions stated hereunder.
    2. The consideration for the sale is fifteen thousand dollars ($15,000.00) and the sum of ten thousand dollars ($10,000.00) had been paid to the vendor since 1986 and the balance of five thousand dollars (5,000.00) remains outstanding and it is payable on the completion of this Agreement.
    3. The sale is subject to the successful acquisition of this land area under the provisions of the Land and Titles Act (cap 93) from the vendor, his successors on representatives and members of the landholding group.
    4. Members of the landholding group, the vendor’s successors or representatives shall assist in demarcating the land and also undertake to assist the vendor and the purchaser in the acquisition proceedings until the registration of the said land is completed.
    5. The purchaser his successors or representative is responsible for all acquisition process and he shall endeavour to commence acquisition proceeding as soon as the agreement is completed.
    6. In an event of an acquisition an agreement for sale of the land will be made by the parties which will clearly identify members of the landholding group who are entitled to sell customary land.
    7. Upon completion of the acquisition process the purchaser is entitled to register the perpetual Estate in the land under his name or names of other people in his family.
    8. Should acquisition is unsuccessful the vendor shall keep the purchaser indentified for all loses including the purchase price and all other claims against the purchaser, otherwise both parties are free to settle on mutual trust and respect for one another.
    9. The purchaser shall take possession of the land and start any development on completion of this Agreement.
    10. This Agreement binds the parties, their heirs, executors and or personal representatives.”
20. It is immediately apparent that the agreement was a conditional agreement. Clause 3 provides that the sale was subject to the acquisition of the land under the provisions of the Land and Titles Act. The responsibility for commencing the acquisition process was with Paul Maenu’u. (See clause 5). At clause 4, Mateo Matai successors and representatives were to assist the Mateo Matai and Paul Maenu’u in ‘demarcating’ the land and in the acquisition proceedings. Clause 6 makes it clear that the agreement was at best an agreement to later make an agreement in which those who are entitled to sell the land will be identified.
21. At Clause 7, if the conditions set out are later completed, Paul Maenu’u would be entitled to register the land as a perpetual estate in his own name or the names of others in his family. Significantly clause 8 makes provision for reimbursement of the acquisition process turns out to be unsuccessful.
22. There has been no evidence before me that an acquisition process had been commenced, nor whether those members of the landholding group have been identified. The land has not been registered. In short the conditions that may lead to an agreement to sell have not been undertaken. Assuming Mateo Matai signed the agreement and the evidence before the Court is that he did not, he must have known the agreement to sell could not be completed when he accepted the chupu in 2012 from Edwin Matai.
23. The order the Claimants seek is a declaration that they are the owners of the land pursuant to the agreement dated 29 August 1991. Even if it were between Mateo Matai and Paul Maenu’u, the agreement was only a conditional agreement and the conditions of the agreement have not been completed.
24. Counsel for the Defendants also argues that the claim is barred by the Limitation Act. He submitted that an action to recover land must commence within 12 years from when the cause of action arose. He submitted that the time began to run from 1991 when the alleged agreement was entered into. Counsel for the Claimants argues that the time the cause of action arose for suing on the agreement was in 2021 when the Claimants received a letter from the Sahalu House of Chiefs objecting to the Claimants re-entering the land.

Issues
Do the Claimants have standing to bring the claim?

25. The claim relies on the document described as a customary land sales agreement dated 29 August 1991. That agreement is alleged to be between the father of the Claimants and Mateo Matai. Neither Claimant was a party to that document.
26. As Paul Maenu’u is now deceased, a claim could be brought by the estate of Paul Maenu’u. The Defendants have submitted that any claim should have been brought by the Public Trustee. No evidence has been put forward to show that probate of a will for Paul Maenu’u has been granted appointing either Claimant as an executor of the estate nor that either is named as a beneficiary under any will. No evidence has been put forward that letters of administration have been granted appointing either Claimant as an administrator of the estate. The evidence from Henry Maenu’u is that there are other children in the family besides the two Claimants.
27. In particular in relation to the subject land, if Paul Maenu’u left a will, there is nothing before me to show that either claimant has been bequeathed an interest in the land. If Paul Maenu’u died intestate then they are likely to have an interest along with their siblings. There is no evidence before me that could satisfy of probabilities one way or the other. The claimants bear the onus of proving that they have the standing to bring the claim. On the material before me they must fail on this ground alone.

Who is the agreement dated 29 August 1991 between?

28. There is direct evidence from Henry Maenu’u that one of those who signed the agreement as a party was his father Paul Maenu’u based on Henry Maenu’u recognising the signature of his father. He relies on the document itself to identify the other signatory as Mateo Matai.
29. However, Edwin Matai, the son of Mateo Matai has denied on oath that the signature purporting to be of Mateo Matai is his father’s. There is no direct evidence to the contrary. Supporting the conclusion that it was not Mateo Matai who was the other party to the agreement is a letter written on 6 October 1994 by a barrister and solicitor named Philip Tegavota to Loboro Kimani. The letter is headed ‘Sale of Part of Komibo Land.’ The letter alleged that Loboro Kimani sold part of the land to Paul Maenu’u, that the land was vested in Mateo Matai and Loboro Kimani was instructed to advise Paul Maenu’u to leave the land immediately. The letter demonstrated that in 1994 Mateo Matai did not want Paul Maenu’u to be on the land. It is therefore unlikely that Mateo Matai had in fact signed an agreement that included at clause 9: “the purchaser shall take possession of the land and start any development on completion of this agreement.”
30. On the other hand, the evidence of Basilio Bongivati confirmed in cross examination was that he was present with Paul Maenu’u and Mateo Matai when Mateo Matai instructed him to ‘demarcate or mark’ the boundaries of the subject land and that he did so. He did not say when this took place. This evidence however is consistent with clause 4 of the agreement:

“Members of the landholding group, the vendor’s successors or representatives shall assist in demarcating the land.”

31. There is also clear evidence from David Humphrey and Edwin Matai that the land was transferred to Edwin Matai from the Haubata tribe with the transfer being recognised with the customary ‘chupu’ which was accepted by Mateo Matai. Such evidence is inconsistent with the land already having been sold by Mateo Matai to Paul Maenu’u. To conclude that it was Mateo Matai who signed the agreement is little more than a guess and relies on the face of the document which is challenged by the Defendants. I conclude that I cannot reject the evidence of Edwin Matai in which he asserted the signature on the document was not his father’s signature.

Assuming the agreement was between Paul Maenu’u and Mateo Matai, was Mateo Matai able to sell the land?

32. In 1995 the Customary Land Appeal Court considered an earlier decision of the Custom Chiefs made on 17 May 1992. The Chiefs in 1992 found that the land in Komibo was held equally by Mateo Matai and Michael Viu. The Local Court had varied that by awarding the land to Mateo Matai but the Customary Land Appeal Court said: “we agree that both parties have equal rights in this land as ruled by the Chiefs at the first place.” That being the case that land was not owned solely by Mateo Matai and could not have been sold by him. Any agreement would need to have included as a vendor, Michael Viu. The Claimants assert that the acceptance of two boats and an outboard motor was an indication that Michael Viu had agreed to sell the land. There is an equal conclusion that the gift of boats and an outboard motor was for reconciliation to restore the relationship with Michael Viu.

What did the agreement of 29 August 1991 actually provide?

33. The agreement provided that the purchaser was responsible for commencing acquisition proceedings until registration of the land was completed.

At clause 6 the provision provided: “In an event of an acquisition an agreement for sale of the land will be made by the parties which will clearly identify members of the landholding group who are entitled to sell customary land.” Then at clause 8 the following appears: “Should acquisition is unsuccessful the vendor shall keep the purchaser indemnified [written as ‘indentified’] for all loses including the purchase price and all other claims against the purchaser otherwise both parties are free to settle on mutual trust and respect for one another.”

34. As previously set out, it is clear that the agreement was always a conditional agreement. It was an agreement to later enter into an agreement with those identified as being the landowner following an acquisition process. There is no evidence that any acquisition process was ever commenced. That is not surprising given the litigation over the land between Mateo Matai and Michael Viu. As the Court of Appeal said in Maebata v Maena and Others [2018] SBCA 11 at paragraph 26:
    • “self evidently a conditional contract cannot be enforced by way of specific performance.”
    • That case concerned an agreement to subdivide land. Later in paragraph 26 the Court said:
    • “Accepting that, even though it is not pleaded, the appellant has not obtained consent to the subdivision after many years and, apparently, he has not taken any timeous steps against the first and second respondents to fulfil this condition.”

Then at paragraph 27 the Court said:

• “And so whatever the position of the third respondent he is not entitled to specific performance and that claim would inevitably fail. It would also be bound to fail because the land to be subdivided is now properly registered in the name of the third respondent.”

35. Assuming there was a conditional agreement upon which the Claimants were entitled to bring their claim, the claim for specific performance must fail. As in Maebata v Maena and Others the Claimants have not taken any steps to fulfil the conditions of the alleged agreement for nearly thirty years. The conditions cannot now be fulfilled as the land has now passed to Edwin Matai by custom.

What is required for the sale of Customary Land?

36. Customary land can be sold. Section 240 of the Land and Titles Act makes provision for transactions or dispositions affecting customary land. It provides as follows:
    • “Subject to the provisions of this Act, every transaction or disposition of or affecting interests in customary land shall be made or effected according to the current customary usage applicable to the land concerned.”
37. Both counsel accept that a chupu is part of the customary usage applicable to the land at Komibo. Counsel for the Claimant submits that it is not too late for a chupu to be presented. On the evidence before me it requires that the chupu would also need to be accepted. That cannot now be done as the land has been passed in accordance with custom, to Edwin Matai some 12 years ago.
38. Other issues about whether the claim is statute barred need not be dealt with as it is clear the claim cannot succeed. The agreement between Paul Maenu’u and Mateo Matai if indeed there was one, was at best a conditional agreement. The conditions have not been fulfilled. The conditions cannot now be fulfilled. Accordingly the claim must fail.

Orders

1. Judgment is entered in favour of the Defendants.
2. The Claimants are to pay the costs of the Defendants on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge