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Toho v Tao - re Lehesite Land [1994] SBLC 3; ILC Land 2 of 92 (16 August 1994)

IN THE ISABEL LOCAL COURT

ILC Land 2/92

Held at Buala Station on the 16th day of August 1994.

IN THE MATTER OF LEHESITE LAND

Between:

Catherine Toho
PLAINTIFF

AND:

Robinson Tao
DEFENDANT

Court: Is there any objection for the presiding Justices.

Plaintiff: No.

Defendant: No.
Plaintiff:

Plaintiff: I dont know how to speak pidgin and english. I want my son to be spokeman. My son is Walter Alu.

Court: Defendant:

Court: No objection.

Defendant: Robinson Tao is very old I will act on behalf my name is Fr Hudson Lagusu, nephew of defendant.
Court:

Court: There are some previous records of previous hearing together with a letter from a Solicitor with the Court. It was alleged that the land case with the Court now had been tried before the council in the past. It claimed that this Court have no jurisdiction to deal with the case now. Letter will be read out.

No objection to both parties.

Court: Letter read out.

Plaintiff: I seek advice from Principal Magistrate in 1992. He agreed that I proceed with the case.

Defendant: I objected for this court to hear this land case. The same land case came before the def sometime in the past.

Court: Read letter particularly on part where it says that Cathrine Toho cannot lodged claim on the said land.

Plaintiff: The previous land case was between Mostyn Peni and Robinson Tao. Im not the same tribe as my father Mostyn Peni.

Defendant: Nothing to say.

Court: Adjourn for ruling on whether case can be heard by this court.

Consult a chief Patterson Randukana to clarify of the parties clan. The chief confirm that parties are different clan altogether when asked about one name Timothy Uza mention in the CLAC decision of the previous haring he confirm that he is closely related to Plaintiff that is same clan.

Ruling:

This Court heard what both parties said. Apart from that it also consult a chief for assist in its ruling. It also refer to the CLAC Judgement of Lehesite land between Mostyn Penny and Robinson Tao dated 30.6.82. The most part which this Court is interested in is quoted herein:

"Furthermore the CLAC would add that parties to the suit should have been Tao and Timothy Uza and not plaintiff Peni as he submitted in the Local Court is not land owner, but only occupied and used the land on the authority of Timothy Uza. As Uza had not been called to give evidence in both this court and the court below if he so wishes he may challenged Robinson Tao on the question of ownership of Lehesite.
From the information from the chief called and which this court accepted Uza was closely related to the plaintiff in the present case, and therefore she can challenges ownership of Lehesite land.
It was also confirm that Mr Tao is a different clan from the defendant Ms Toho. This court therefore allowed this case to proceed.
Clerk President

Court: Claim read out

Plea: Fr Hudson for Robinson Tao.

My uncles own the land I denied the claim.

Plaintiff: Walter for Catherine Toho

Our notice of hearing was just received yesterday evening. I have very short notice. I seek adjournment.

Defendant: I have not objection to adjournment.

Court: Accept plaintiffs concern

Adjourn for any possible time.

Court resumed. Bother parties in court.

Plaintiff: Im calling one witness.

PW1 Rosina Nahi S.O.B.

Reside at Huali Village.

Witness dont know how to speak pidgin.

Court: Require an interpreter.

Janet Lao interpretes

This land Lehesite belongs to me. I dont know why Robinson Tao claims as his.

Court: Point of proceedural.

Plaintiff had not given evidence. Court will hear evidence from plaintiff first.

Catherine Toho S.O.B. states

The Lehesite land belongs to me that is why I bring this case to court. From my understanding my father Timothy Uza gave the land to me. I dont know why Robinson Tao claim the land. All I know that the land is mine not Robinson Tao. What sort what of transactions took place leading to owning of the land by Robinson Tao? What sort of custom places Robinson Tao own in the land? What sort of food crops Robinson Tao planted there? What I know is that the land belongs to me and not Robinson Tao. From previous records defendant claim that he bought the land. I as a landowner I dont know when it was bought.

CXM by Defendant

Q. Who is the traditional owner of Lehesite or before Timothy Uza own the land.

A. My great grand owns it.

Q. Can you name your ancestor who own Lehesite.

A. Sameul Seo.

Q. Do you have tabu places in the land.

A. Yes Solu Rohaulagu.

Q. Timothy Uza gave you the land is that true.

A. Yes.

Q. According to Isabel custom the land is usually transfered through woman. Was Timothy your relative.

A. Timothy Uza is not my really father.

Q. What relation between Samuel and Timothy.

A. Timothy Uza is Samuel Seo's grandson.

Q. Is your custom places within the Lehesite land.

A. Yes.

Q. How are you related to Robinson Tao.

A. I dont know him.

PW1 ROSINA NAHI:

Robinson Tao claim that he own the Lehesite land, but sometimes ago he sent his son asking me if he could buy the land. That time Hudson now representing Robinson Tao was posted at Sigana. At that time Hudson now in court wants to see my father and asked him if he could buy the Lehesite land, that was the Church feast date. The date was 28 August 1967. That time I was present there when Hudson came in. My father refuses to sell the land. I dont know why he is claiming Lehesite land now.

CXM by Defendant

Q. Who told you I want to buy the Lehesite land.

A. Uncle Japhet Saeni.

Q. Where did I posted in 1967

A. I dont know I make a mistake on the date. The right date is 23rd August 1978. 1978.

N.F.Q.

C X M by Court.

Q. Is Lehesite been dispute before.

A. No

Q. Did you know who is related to Robinson Tao.

A. I dont know

Q. Who own Lehesite land before

A. Timothy Uza and my great grand father

Q. What is the name of your father who was asked if he could take the land

A. Timothy Uza

Q. Can you mention any of your ancester who owned the land before

A. Teo

Q. Can you name the Tabu places in the land

A. Sole and Pongalaga.

Q. Are they within Lehesite or out side

A. Inside

Q. How are you related to Cathrine Toho

A. Sister

Q. What is Timothy Uza call

A. Osamogo

Q. What clan is Heudo

A. I dont know

Q. What clan is Robinson Tao

A. I dont know

Q. Why did't you know the plaintiff

A. I dont know plaintiff

Q. How long have you left Lehesite.

A. I left Lehesite when I was still small

Q. When you return. Did you see any one in the land.

A. No body.

Hudson Legusu S.O.B. states.

I live at Tugusoto village Marige. I stand for my uncle Robinson Tao. I will tell the court what he instructed me to say. The Lehesite land one of the state that include the following land namely Chopuna. Tirolako, Sithagotha Kobatha, and Dodoruna. These land belong to the following people Daka, Kome, Uhuglinga, Ba'a and Mou Their sister Sanarafe, Babalai. Siathoga. The second Magi and Siatoga second. These people were born at Lehesite. While they were there a strong man from Thonio or two or 3 miles on top of Lehesite killed some of them. Some ran away to Jagi. When they leant the death of the strong man. Magi and Siathoga second came to settle at Kikina and Rapadogi. From there Siatoga second gave birth to Moga, Sakagela, Leva, Tafranako, Godoni, Mnanahui and Manedana

The forth generation, Duku, Lithukana Faro Kokorade, Teze. Koumigi, Kukumi, Ligu with their nephew Tetehu, Tetehu married to a woman Keai. Keai with her brothers help Behu Farilegu, Kiraga Saplai, Kamitu Dube and Langusu. These people made a custom feast for Tetehu and his uncle Kukumi who got married and cared for Keai. The following items were given. 3 pigs, 5 hundred purpose teeth 30 bamplets or 2 shell money with 6 trend or strings 6 fatham home made cloth 4 strings uncooked Taro 10 newly made string bags 5, basket cooked food mixed. Because of the feast they received only decleared that they were that last people who own Lehesite, Chopuna, Tirolako, Sitagota Kobata, Dodorupa, and that Keai, Tetegu's wife, and her future generation on the future owner of Lehisite land. These who were present that time show this feast. Because of the dedication of lands they took only to make I really strong for future operation of Keai. Keai again with his brother and uncle made a second feast on behalf of the general to come. The items given were 4 pigs, 1000 purpose teeth 100, armlets, 5 shell money 10 strings each 6 fathom home made cloth 2 newly made strings bags. 5 strings of uncooked Taro, 6 basket cook food mixed.

I Robinson Tao with my brother James Tapoia sister Hage and Rachel we claim that Lehesite land belong to us. Our grand mother and father bought the land according to taking and handing over in custom.

I wish to submit my family tree table.

Our people who present that time were Mathiaus The chief of Nabu Bongihu (deceased) Nodimae, Uka, George Hilary. Duddly Bale and Forest Voko were young that time. The chief who were with Keai where Kusa, Failehu, Bufeti Saplain, Lagusu Duhe because of that feast Tao and his people claim Lehesite as their land. All these shows that Lehesite land belong to them.

I want to make it clear here about my encountered with Timothy Uza as mention by PW1, I was posted at Sisiga village. The people of Buali village invited me to celebrate Holy Communion with them on 20th August 1978 was saint Batholomews day I perform a priestly duty as requested of me. After breakfast there was a custom dance. I went to Michael's house where I was told to used it. I then met Timothy Uza. We walked together until we came to a chapel which was still incomplete.

We sifted facing the dancers and told stories I asked Mr Uza some questions. I ask Uza if he owns Lehesite, Where is Lehesite. I told him that Lehesite is one of the land where Hofi river ran down to Lehesite is not my land. I dont know any land that attached to that river or attached to the sea coast. My land are those of Tinapapa going east Timothy Lehemae or Susan knows about his land. Tinapapa village is in my land. People there planted and make garden in my land. I asked him again saying you said that Lehesite is not your land. No Lehesite is not my land.

I told him about the previous case between Peni. I told him that there will be some meetings and court in future about this land. And so there is arguement between Timothy Lehemae, Robinson Tao and sometimes between Robinson Tao and Mostyn Peni. Timothy Uza looked worry and said that to warn these people from doing any development at Lehesite. If he ever go to court I would not attend because I am old and I have asma, apart from that we would loose the case.

He went to say that Catherine Toho is his niece. She was born from his sister. Catherine is her daughter. Peni is Toho's husband. They came to Marriage to plant coconut for their children. Timothy and Susan knows about my land. I thought they woudl lead them to a right place. So I did'nt come because I trusted Timothy and Susan to show them the right place. I didnt asked him to pay any land.

Robinson Tao and Timothy Uza 1979 there was a meeting about Lehesite land at Jejevo. People present were, Retired Bishop, Paramount chieves, Nathaniel Hipala, Edwin Heimani, Luke Fiumana, Commins Capruri, Mostyn Peni, Timothy Uza, Georgina, Uncle Charlie, These people met at one of the class room at Jejevo, Robinson Tao read out this letter which I wrote from Sigana. The contains of the letter were the conversation between myself and Uza at Sigana. Timothy Uza never appear in any court.

Although Lehesite land has not develop to cash sources Lehesite land have the followings: Sego palm trees, originally the fruits of the palm were brought from Koraluluni by Mostyn Lagusu and Joseph Duhe. These two were Robinson Tao's uncle.

Trees like nali nuts, betel nuts and others were planted by Joseph Duhe when Lehesite land was cleared. Coconut trees were planted by Joseph Duhe not for cash but for food. Some of them died because they were not cleared but one still standing near the river. Those who planted these trees were uncle and relation of Robinson Taho.

Some of the plants of the Lehesite land was undevelop. It was not develop for the two reasons. The first reason Hubert Uka and his son Tangimana knows well James Takaia and Robinson Tao, Hubert Uka and Tangimana if they could use the undevelop part of the land for gardening and for keeping pigs. Second reason is that because I am the only one well educated in the family they thought that on my return I would organise our people to develop the land but before I return people had already planted coconut in the land.

I also want to add from here that Timothy Uza had already said that he didnt own Lehesite, and refuses to come to court everytime. He is not the owner of Lehesite land.

CXM by plaintiff

Q. You know that the land belong to you why do you have to asked Mr. Uza

A. I want to make sure who is the owner of Lehesite Land.

Q. Who is Like Tetehu?

A. Kukaki and Tetehu are the rightful owner of Lehesite land

Q. What clan are they

A. The two are Tavia clan because Teteu a Tavia he mary to Keia which is a Posamoga

Q. What is your personal right in the land

A. The land was brought by an ancester that is why we own the land.

Q. What did you say that Timothy Lehana and Uza new nothing about Lehesiter.

A. I never say that in court

Q. Who are the sisters of Lihu and tetehi

A. I dont know

Q. Why did you develop the land. Lehesite

Q. The land was set aside for development after I return from school as mention in my statement.

Q. Do you know all.

N.F.Q.

CXM BY COURT.

Q. Do you have any knowledge of who is the plaintiff.

A. I dont know the plaintiff

Q. What clan is the plaintiff

A. She is a Posamogo

Q. Did you attend the chieves hearing

A. No but I understand it went through the chief.

N.P.Q.

JUDGEMENT

This is a claim over the disputed land namely the Lehesite Land.

Parties to the proceedings are Catherine "Toho plaintiff and Robinson Tao defendant. Due to old age Robinson Tao is unable to attend Court thus his nephew Fr Hudson Lagusu is standing in his place.

This case was brought before the chieves on the 18th November 1990 as required under the lands and title amendment Act 1985.

On that hearing the defendant failed to attend thus the plaintiff further persue the case in the Isabel Local Court.

Before the Court get down to consider the evidence before it, it must remind itself of the standard of proof in the Civil Case. The plaintiff is required to prove its case on the balance of prohability. If it failed to do so then the credit must go to the defendant.

The evidence of the plaintiff can be summarised as follows:

The plaintiff gave evidence on oath and stated that she own the Lehesite Land. The Land was transferred from Timothy Uza to her. She questioned why the defendant is claiming the land. She also question what sorts of transaction had taken place inorder that the defendant is entitled to own the Lehesite Land. She question what sorts of food crops was planted by the defendant on the disputed land.

PW1. Rosina Nahi stated that she own the land. She cold the Court that on the 23rd August 1978 the defendant nephew met her uncle Timothy Uza. On that day it was a Church Celebration day. The nephew of the defendant approached Timothy Uza and was asking him if he could sell the land to him.

Having summarised this evidence of the plaintiff the Court turn to the defendant's evidence.

The defendant told the Court that the Lehesite Land is one of the estate of Chokuna, Tirolako, Kobate, and Dodoruna. These lands were owned by Daka, Kome, Uluklinga, Ba'a and Mo'ou.

Their lister's were Sanarafe, Babalai, Siatoga.

The second generation were Magi and Siatoga (second). The defendant told the Court that these people were born at Lehesite Land.

While these people were staying there, strong man killed some of them. After the death of the enemy they returned. The defendant told the Court that Magi and Siatoga gave birth to Moga and Rapadogi Sakagela, Leua Tafranako Gudoni, Manehui and Manetana.

The fourth generation Duku, Litukana, Fora, Kokorade Tega, Koumigi Kukuni, Lifu with their nephew Tetehia Teteku then got married to a woman name Keai. Keai had other brothers and were named as Pehu, Failegu, Krago Saplai, Kanitu, Dude and Langusu.

It is the defendant evidence that Keai and his brother made a custom feast for Tetehu.

The following was spent on this feast: 3 pigs, 500 porpoise teeth, 30 armlet, 2 shell money, 6 farthom home made cloth, 4 string basket uncooked taro, 10 newly made string basket bags and 3 basket mixed food.

Because of the feast the following plot of land was given by Kukuni and Tetehu, Chupuna, Ttirolako, Sitogota, Kobata Dodovena and Lehesito. By hosting this feast Keai and her future generation were given these land.

A second feast was again held. Four (4) pigs, 1,000 porpoise teeth, 100 armlets, 5 shell money 10 string each, 6 fathom home made cloth, 20 newly made string bag, 5 string uncooked taro and 6 basket cooked food mixed were given.

The defendant further went on to defend himself about the allegation in to which it was claimed that he had approached Timothy Uza for the possibility of buying the Lehesite Land from him.

The defendant admitted talking with Mr Uza on that occassion. He told the Court that he asked Mr Uza if he really owned Lehesite land.

From Mr Uza's reply he said that he didnt know anything about Lehesite land or any land attached to the costal area at Hofi river.

Mr Uza then described his lands. The defendant then told Timothy Uza that a dispute will arise someday about Lehesite land. Mr Uza then told him that he would not attend Court if it happened that a dispute over Lehesite land is ever brought before any Court.

It was the evidence of the defendant that Mr Uza told him that Catherine Toho the plaintiff in this case is his niece. Catherine is married to Mostyn Peni and that they came to Marriage to plant coconut for their children, Mr Uza told the defendant that Timothy and Susan knows about Mr Uza's land and that he expected them to show his land co Catherine and Peni.

He further told the Court that in 1979 there was a meeting held at Jejevo concerning Lehesite Land Timothy Uza failed to attend.

He further told the Court that there are fruit trees at Lehesite land. These are nali nuts, betel nuts, Sago Palm. Joseph Duhe pianted all these. He also planted coconut and due to poor maintenance only one survive untill today.

The Court will now consider the evidence adduced by both parties.

From the evidence of the plaintiff little had been said about the land. The evidence only claimed that the land is theirs and that it was given by Timothy Uza. No evidence was given to support how is was given. Even if the land was transferred from one generation to another the evidence is too light to prove it.

No family trees or geneological table was produce.

The plaintiff only mention that she had tabu places in the land when cross examination by defendant.

The defendant in his evidence say more than the plaintiff. He told the Court in the orderly manner leading them how he owns the disputed land. He mentioned other lands surrounding this disputed land. He named his ancestors one by one. He honestly told the Court that he is not the original owner of the disputed land. The land was transferred when a custom feast was made.

Having heard from both parties the Court find that the Lehesite land was originally owned by Kukuni and Tetehu because they were last person in their clan the land was given to Keai but was transferred to her following a custom feast.

Having said all these the Court find that the plaintiff failed to prove its case on the balance of prohability.

DECISION

Robinson Tao is the rightful owner of Lehesite Land.