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Kuku v Naisi [2011] SBCLAC 8; Western Customary Land Appeal Case 3 of 2011 (8 December 2011)

IN THE WESTERN CUSTOMARY LAND APPEAL COURT
LAND APPELLANT JURISDICTION:

CLAC No. 3 of 2011

IN THE MATTER OF: DEKURANA CUSTOMARY LAND TIMBER TIGHT APPEAL

BETWEEN:

OPPORTUNITY KUKU
Appellants

AND:

CHIEF GILLISI NAISI

EDRICK LUNA & 15 OTHERS

JUDGMENT

The Western Provincial Executive sat and hears an application for timber right over Dekurana Customary Land. Their certificate of determination was dated 20^th May 2011.

From that determination of persons to grant right on Dekurana Land the Appellant filed his appeal to the Western Customary Land Appeal Court.

The Appellants ground of appeal is summarized as follows:-

"That the Western Provincial Executive erred for not including the appellant Mr, Opportunity Kuku as one of the trustees representing Lehu clan in their determination as agreed during the Timber Right hearing held at Hovoro Village on 11^th May 2011."

Relief Sought:

"The Appellant seek order from this Court to have him included as trustee on Dekurana Timber Right."

The Issue before this Court is; "Whether the Western Provincial Executive erred in not including Mr. Opportunity Kuku as trustee, if so whether he should be included as trustee among other trustees determined by the WPE?

To determine this issue the court will examine both parties' submissions before this court and also examine the record of proceeding and determination of Western Provincial Executive.

Following his grounds of appeal, Mr. Opportunity Kuku submits that during the timber right hearing Mr. Vincent Vaguni and Mr. O. Kuku did attend the hearing. Mr. V. Vaguni is the spokesperson for Lehu tribe. In his presentation at that hearing he submits the names of people to represent Lehu tribe as trustees. They are; Mr. Kiko Tinamanae, Mr. Opportunity Kuku, Mr. Vincent Vaguni and James Qora. Mr. Konseti Robert did acknowledge and accept our submission of additional trustees. However, when come to their determination, the Western Provincial Executive only include Mr. Kiko Tinamanae, Mr. Vincent Vaguni and James Qora.

In reply to Mr. O. Kukus' submission, Mr. Konseti Robert submits that there was nothing wrong with the Western Provincial Executives determination. At the timber right hearing Mr. Vincent Vaguni only ask to include three people from Lehu clan as additional trustees namely Mr. Kiko Tinamanae, Mr. Vincent Vaguni and James Qora. Mr. Konseti Robert confirmed to this court that he accepted these three people to represent Lehu clan as trustee.

We have the opportunity to examine the WPEs record of proceeding and determination. Mr. Vincent Vagunis' presentation can be found at page 3 No; 4. Mr. Vincent Vaguni requested the inclusion of three additional trustees to the original list of trustees as follows:

(a) Mr. Vincent Vaguni - to represent the interest of the Lehu tribe of Dekurana at Tamaneke
(b) Mr. Kiko Tinamanae - to represent Dekurana interest from Kongu to Kolobaghea
(c) James Qora Pulekevu - to represent Dekurana interest at Keru.

The names mentioned on (a), (b), & (c) above was included in the WPE determination

In deciding this issue, we cannot assume that Mr. Kuku's name was also submitted at the timber right hearing or whether the Secretary to the Western Provincial Executive missed his name in the record.

Mr. Vincent Vaguni who is the spokesperson for Lehu tribe should support Mr. Kuku in this appeal however, this was not so. It is of our view that we cannot determine whether the Western Provincial Executives record of Proceeding is not proper in this tribunal.

We based our analysis on both party's submissions and upon examining the record of proceedings of the Provincial executive. In this appeal court we did not entertain new evidences.

Upon considering what we have discussed earlier in this judgment we find that the Western Provincial Executive was not erred in not including Mr. Opportunity Kuku in their determination of persons lawfully able to grant timber right on Dekurana Customary land.

Appellants' grounds of appeal must therefore be dismissed.

DECISION

1. Appeal dismissed
2. Determination of Western Provincial Executive upheld.

Dated this 8^th day of December 2011

Right of Appeal Explained.