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Gelua v Kakamo [1994] SBHC 46; HCSI-LAC 6 of 1991 (4 February 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.6 of 1991

REUBEN GELUA

-v-

LUKE KAKAMO

High Court of Solomon Islands
(Palmer J.)
Land Appeal Case No.6 of 1991

Hearing: 22nd October 1993
Judgment: 4th February 1994

Mrs. Samuels for Appellant
C. Tagaraniana for the Respondent

PALMER J: This is an appeal from the Guadalcanal Customary Land Appeal Court pursuant to section 231B of the Land and Titles act (Cap.93). The appeal ground relies on the doctrine of judgment per incuriam, and specifically alleges that the Guadalcanal Customary Land Appeal Court failed to investigate into questions of custom raised in submissions before it and accordingly failed to attach the required weight of significance to it, which had it done so would have resulted in the case been decided in favour of the Appellant.

The Appellant has made reference to sections 219 and 220 of the Land and Titles Act in support of their submission.

Sections 219 and 220 read:

“The manner of holding, occupying, using, enjoying and disposing of customary land shall be in accordance with the current customary usage applicable thereto, and all questions relating thereto shall be determined accordingly.

For the purpose of ascertaining any current customary usage, a court required to determine a question in accordance therewith may refer to any books, treatises, reports (whether published or not), or other works of reference, and may accept any matter or thing stated therein as prima facie evidence of the usage in question unless and until the contrary is proved.

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.”

The submission of the Appellant is that it is a customary requirement from the Tasimboko area, East Guadalcanal, that any transfer of customary land is always accompanied by an exchange of custom shell money and other things. He submits, there is no exception to this requirement, and seeks to argue that there was no proper consideration of this customary requirement and accordingly the G/CLAC, had acted in breach of the doctrine of judgment per incuriam.

This doctrine basically states that a judgment of the Court is not binding if it is given without due care and attention given to the relevant authorities, or statutes. The words ‘per incuriam’ mean ‘through want of care.’

The issue before me is quite simple; was there a proper consideration of this customary point; was it raised before the G/CLAC? In answering this question, I am obliged to consider the record of proceedings of the G/CLAC, and the judgment of that court.

In the record of proceedings of the G/CLAC, at page 7, under heading point 3, the Appellant, Reuben Gelua, made the following statement:

POINT 3

“We do not deny value of shell money. Truth is no shell money presented at that time which carries signification of land purchases in custom. No sale or transfer of land from the absence of shell money. This is traditionally respected in custom. Therefore land transfer not a matter to be decided by the chiefs but the tribe owners. In this case never happened.”

In the judgment of the court at page 2, it said:

“The basis of the respondent's argument is that the payment made by the appellant to his tribe was not a payment for the ownership of this land but rather a token of appreciation for having been allowed by his tribe to settle in their land on temporary basis. He further argued that had it been for the purchase of customary ownership the appellant would have given his tribe shell money and all members of his tribe including women and children had attended. This is vital in buying customary land ownership and from the absence of this vital aspect in custom as in this case the appellant's claim is null and void and should not be accepted.”

At page 4, the court further stated:

“The respondent also argued that since there was no shell money involved in the payment as one of the most significant factor in custom when it comes to land transaction, it is wrong to hold that the amount of $400 cash, a pig and local food warranted the transferal of their tribe's original ownership of the land in question. In one of the questions asked by this court to the respondent as whether in his custom nowadays, payment of land is restricted to shell money only or to both shell money and Solomon Islands currency. He replied, IT DEPENDS. On this basis we accept that Selei and Kuvu had preferred the $400 cash than shell money.”

The evidence as contained in the record of proceedings, with respect is overwhelming. Not only was the point about customary payment by shell money raised by the Appellant, Reuben Gelua, but it was duly considered by the G/CLAC. The question of what weight to attach to that so-called requirement in custom is a matter solely within the discretion of the G/CLAC. This court will not interfere in that: The record of the judgment of the G/CLAC speaks for itself. It showed that the G/CLAC did consider the question of the importance and significance which the Appellant would have liked the G/CLAC to attach to that customary point. The decision however as to what weight it should attach to that submission is a matter solely within the discretion of the G/CLAC. It is sufficient that the G/CLAC did consider it.

In the consideration of that particular point, the G/CLAC found that the payment of the $400 cash, a pig and a variety of local food did not deviate from the current customary usage and practice, applicable in that area for the sale and purchase of customary land. The records of the proceedings showed very clearly that the Appellant recognised this point when he was asked if transfers of land were restricted to only payment by shell money. In his response, he said: “it depends”.

I am satisfied, there is no error of law, and this application must be dismissed with costs.

(A.R. Palmer)
JUDGE