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Kile v Sele - re Sareai Land LR 681 [1998] SBLC 1; Land Case No 3 of 1993 (7 September 1998)

IN THE ISABEL LOCAL COURT

LAND CASE NO. .1 OF 1993

DATE: 25/08/98

NAME OF LAND IN DISPUTE: SAREAI
LAND LR 681

BETWEEN:

Nelson Kile and Dorah Kikolo
of Baolo village
PLAINTIFF

AND:

Hubert Sele and Anthony Enesea
of Samasodu village
DEFENDANT

DECREE
JUDGMENTS:

This Sareai land Lr 681 dispute had been referred to the Kia and West Maringe House of Chiefs respectively. The Kia House of chiefs delivered their judgement on the 25/8/98 in which the Sesehu clan was declared as the true landowners of Sareai land LR681. This decision was in favour of the defendants, Messrs Sete and Enesea who represented the Sesehu clan. Later, the Plaintiffs, Nelson Kila and Dorah Kikolo referred this same dispute to the West Maringe house of Chiefs in which it was declared on the 28/1/97 that the Baheai clan which is represented by the plaintiffs in this matter as the true and rightful owners of the disputed land. This ultimately means that traditional means to resolve this land dispute has now been exhausted. Accordingly under the provisions of section 8D(1)(b) of the Local Court (Amendment) Act 1985, this court now has the necessary jurisdiction to hear and make its determination of this land dispute.

This court heard this matter at Baolo village from the 21st August - 23rd August 1998. Judgment was made on the 28/8/98 at Buala. The Plaintiffs are Nelson Kila and his sister, Dorah Kikolo who represented Kololo Baheai (Baheai clan) whilst the defendants are Hubert Sele and his brother. Anthony Enesea representing the Kokolo Sesehu (Sesehu clan). The issue before the court quickly become apparent at the beginning of the proceedings. The plaintiffs claimed ownership of Sareai land on behalf of the descendants of the Baheai clan. The defendants equally claimed ownership of Sareai land on behalf of the descendants of the Sesehu clan. Sareai land LR681 was surveyed and mapped and its total hectare is 5,676 ha.

At the outset, few aspects of the court hearing must be clarified. Firstly, none of the members of this court was objected against by both parties to hear this dispute although being invited to do so by the President of the court the commencement of the proceedings. Furthermore the Defendants had made an application for an adjournment. Their main reason being that the notice of hearing was insufficient and that saying so, they were unprepared for the hearing since some of their witnesses are still in the Western Province as well as in Honiara. Moreover, some documents their intend to rely upon are in Honiara the Plaintiffs objected on the basis that this matter has dragged on for the last three years. Furthermore a lot of time and expenses was spent in trying to get this matter to this court. Moreover, each of the parties reserve their right to appeal to a Higher court should the hearing to proceed. This counts' ruling on the application is as follows:-

1. All parties it been duly informed in ample time by the clerk of courts letter dated 2/7/98. Therefore, the defendants have sufficient time to prepare their case;
2. This dispute must be resolved by this court once and for all at this point in time since Justice delayed is Justice denied;

100. This court is not of the final court in the hierarchy of courts in this country and therefore the parties reserved their right to appeal to a higher court if this courts decision is not to their satisfaction.

4. The costs incurred by the parties as well as the Government to get this matter to this court is astronomical, and must be considered;
5. The defendants have left the application to this court's discretion and whilst the court insists on a fair and just hearing of both parties' cases. This must be balanced with all the other circumstances of the case;
6. The two defendants who were knowledgeable in the history of the Sesehu clan were present in court.

Moreover, the defendants spokesman arrived from Honiara that same day before the hearing actually commenced and brought with him the necessary documents the defendants' relied upon in this matter. Although he was objected against to appear as spokesman for the defendants by the plaintiffs for the reason that Eddie Ene is from a different tribe, the court allowed him to be spokesman but could not give evidence (i.e appear as a witness for the defendants) in favour of the defendants. In addition to the afore-mentioned, the court noted that Sareai land is surveyed and mapped, acquisition proceedings have not been completed and is still under customary land Tenure.

In this case, the plaintiffs claimed that their clan, Baheai owned Sareai land, because they, Kokolo Baheai (Baheai clan), were the first discoverers. They were the chief clan in the centre of Isabel, that is, Havulei district. They outlined to this court that their ancestors were bush people. Mr. Kile stated under Oath that they have a twin chiefly systems in which two chiefs must always look after his people at any one time during their history. He proceeded to name the chiefs of their clan beginning from Jagele and Pelapogo, Togo and Rarekana, Molea and Latea, Koropi and Hapu, Urumana and Nabulu, Moreover according to their customs in Isabel, land is inherited through the mothers line. In other words, their society is a matrilineal society as opposed to some societies in Solomons which are partrilineal as land is inherited through the man. He pointed out in the course of his evidence that it is customary in Isabel that inheritance of land was as much as possible tried to be kept within the family. This was claim by arranging marriages between cousins. For instance, X is a man. When he got married and has children, his children will not inherit X's land. It is X's sister and her children who will inherit the land. Therefore, if X had a son, it was the custom in Isabel that X's son must marry his sister's daughter in order to keep the land in the family. This is exactly what chief Nakula II of Baheai clan did. Chief Nabulu II had three wives. They are as follows: (1)Hita 2) Ghabu 3) Vurutina. His third wife Vurutina is of Sesehu clan. Joses Lote is therefore a member of the Sesehu clan. Chief Nabulu (II) tried to marry of his son, Lote to his niece (Nabulu II)'s sisters' daughter). He told his son, Joses Lote to marry his niece Daina. Daina and Joses Lote got married and he got a girl called Duke but she died. Therefore, what chief Napulu (H) of Baheai clan attempted to do never eventuated. His son. Joses Lote who was born of Vurutina, a Sesehu clan woman never owned his father's land (Sareai) but owned Sesehu land since he was born of a Seshu woman, Vurutina. However, he was given to use a piece of land within Sareai land called Havagarangao. His right is not one of ownership but a her the right of use only. The plaintiff in his evidence in chief stated that Sareai land is a very large tract of land (676 ha) and hence is not possible in custom to give a right of ownership to one person but a right to use the land only can be given. He further went on to submit to this court a document written by Joses Lote in 1940. This document was kept by Lise Duko of Baheai clan who is the fourth witness for the plaintiffs in the court proceedings. This document was written in Local dialect and was translated to the court as follows:-

"From Lapina to Votu Point, Baheai clan has given to me, I am born of Baheai clan since my father is of Baheai clan. However, I beget no girls and therefore my line ends.(Bele belong mi finish nao). I gave the land back to my two adopted children namely Lise Duko and John Sike. These two adopted children of mine are of Baheai clan. Therefore, the land given to me (Sareai) reverts back to Baheai clan. I am of Sesehu clan and we own Jarihana. That is where our (Sesehu clan) and is situated. Jarihana is where Sesenu clan came out from and they now live in Roviana. True and really. Sareai belongs to Baehai clan "

The court noted that all the witness to the documentary now deceased. Mr Kile pointed out that is why the Baheai clan are the true and rightful owners of Sareai land. The first plaintiff then went on to state that there was raid on his tribe in olden days when headhunters from Roviana in the time of the two chiefs Nabulu (I) and Parumana fought with 100 warriors and were killed and buried by his people. He further stated that Baheai clan has five taboo sites on Sareai land. Of the five (5) sacred sites, two were destroyed during the logging operation sanctioned by the defendants on Sareai land, one was destroyed by the sea because of its closeness to the shore and there is only two left today. A Gilbertise bulldozer operator dug up the taboo sites when obtaining gravel for logging operation purposes and this was allowed to be done by the first defendant. Mr Hubert Sele. He further stated that his clan. Baheai give lots of land to other clan. For instance. LR677 was given by Baheai clan to Gurupikopiko clan. LR676 was given to Bulau clan and LR678.679.681 ie Sareai land. LR682 and LR683 are all lands belonging to Baheai clan. They also gave land to other people, for example in 1958 and 1959, his clan gave Bolatei settlement to people from Maringe people. Banafao settlement was given to James Sau, his children and relatives. Deudeu settlement was given by Baheai clan to people from Hograno All these settlements are situated on and around Sareai land LR681. He also explained that in safed land, a special sickness known as Yagara Kakadolo (sickness of the river) existed and can make people ill. Nobody in the whole of Isabel can cure that particular sickness except those of Bahear clan. Furthermore, the plaintiffs clan also gave Vurona island to Martin Gorisi and his people from Sepi. He also stated that the land on which the Samasodu clinic was built was also purchased from Baheai clan. He further submitted that for the above reasons, his clan is respected by the people. Furthermore, Sareai land LR681 was logged commercially by the defendants when they invited Mega Logging Company to carry out logging operations on Sareai land. He then proceeded to point out certain discrepancies in the defence case especially with respect to some of the defendants documerts which may be tendered to the court as evidence earlier or in the court proceeding.

During the cross-examination by the defendants, the first plaintiff mainly reaffirmed what he stated in his evidence in chief. For instance, the question why Baheai land extend from LR677 to LR687, he stated that Baheai clans land begin from Luguao point to Faruna point and that Baheai clan are the original discoverers. However he was questioned as to why Baheai clan claimed through chief Nabulu (1) since Isabel custom dictates that ownership of land is matrilineal in which he answered that his clan is the original discover of the land and further stated that it is the Sesehu clan that claimed they owned Sareai land though their chief Joses Lote. He further reaffirmed that Lote whose father is a chief of Baheai clan was only given a right of use to the land (Sareai) but not an ownership right. When questioned by the courts to who owns the nut trees and Sago palms on Sareai land, by members of the Sesehu clan, Mr. Kile replied that Baheai clan owns them. He further stated that both Baheai clan and Sesehu clan make no agreements before logging was initiated on Sareai land.

The second plaintiff Mr. Dorah Kikolo confirmed and repeated most of what the first plaintiff said and further retold the story of the Baheai clans discovery of the area including the land in dispute. She stated the fifteen (15) nomadic settlements the Baheai clan in its history came to settle and resettled. She further expounded on the story of the arrival of Christianity in the Havulai area in 1895 when the defendant's father Samson Naguto came to covert and did convert the people of Baheai and Serelu clans. The court noted that the 12 people he found on Sareai hill were members of the Baheai clan who begun the Christian village know today as Baolo. In the past, the same village was known as Rongoleg which means "the last to hear" Samson Naguto then went to Khatova district where Samasodu village is situated in today and found eleven (11) people on Khatova hill. These people according to the second plaintiff are members o the Sesehu clan. This is because there were found in the Khatoga bush via Jerihana/Haeteko. She then read to the courts statements made by some old men to confirming that Sareai land belongs to the Baehai clan. These old men are as follows: John Sike (still alive), Guro (who is said to be the oldest man still alive today and statement were submitted to the court and they, were signed and/or fingerprinted. She retold the story how part of Sesehu clan ended up in Roviana. These are the descendants of Lodurokasa who is the sister of Pughele and their mother is Venahoi. Lodurokasa was abducted to Roviana and her descendants were Solomon Kari and his brothers and sisters. Righele when married to Saghala beget Ashten Rohi, Clara Borafana and Kuriti who are o the Sesehu clan. She maintained that the Sesehu clan owned Jarihana and not Sareai land. When reading the history of Baheai clan, she gave the names of their five Taboo sites as follows: 1) Tairisa 2) Lapina 3) Toelegu (front of Toelegu village) and 4 & 5, that is, Saemu and Koloenu wee those two taboo sites destroyed by the Mega logging company. She also stated that the fact that the defendant do not understand the boundary of Sareai land LR681 is shown by them when allowing the company to fell trees in LR680, that is Kokodohi land and LR682, that is Kesuo land. She maintained that this proves that they, Sesehu clan, are not the true owners of the land in dispute. She then proceeded to show to the court some traditional ornaments which was passed down from Sareai clans ancestors. She reaffirmed that these ornaments are the dead which guarded the lands belonging to her clan. The items shown are as follows:-

1. Togarade (dolpin or purpose teeth)
2. Bakiba (2 of them)
3. Titi Bilihiti (whale teeth women on string)
4. Bohcioni (Tapa or bark cloth)
5. Bulau very old arm bangle)

During cross examination by the defendants, she stated that planting coconuts on the land, that is Sareai is deemed as usage of the land and as such, the Baheai clan could not object to such activities. Only the logging operation on the land met the Baheai clans disapproval. The second plaintiff also states in questions from the court that the two clans live together peacefully in the past and she herself normally visited the defendants and stayed with them at their village in Samasodu.

The plaintiffs called from witness. PW1 gave evidences of about how Toalegu settlement was given to people from Maringe by Sau and his brothers Pasa. PW1 said a feast was made for the Baheai clan because Pana and Sau are of the Baheai clan. He also stated that at the feast most of the Sesehu clan members were these including the defendants. PW1 however, did not give the date of that feast. Also PWl is from a different clan namely Posamau. He attended the feast because he is married to a woman from the baheai clan. Pw2 Leslie Joe, gave evidence about how the settlement of Toelegu was given by Pasa and Sau to a man from Marring by the name of Reji and his people. In cross examination, he stated that Tselyn settlement was began in 1970.

PW3 gave evidence about the destruction of the two taboo sites by the logging company. In his evidence he stated that a Gilbertise dozer Operator whilst digging gravel dug up human bones. He went to see his boss and they contracted Mr. Anthony Enesea who is one of the defendants in this case to verify whether it is indeed a tambu site. Mr Enesea then told the boss at the house of the chief mechanic saying "Go hed waka nomoa". PW3 was an employee of Mega Logging company at that time as a workshop workman. This witness was not cross-examined by the defendants. PW4 as stated earlier is the custodian of the document written by Joses Lota. In fact, she is one of the persons mentioned by Joses Lote as the person to whom the Sareai land is given back to. She said that the document is written by Lote himself. The document was then given to Sau who passed it on to PW4. She was advised to keep the document and if any person from Western Province (Roviana) came to claim the land, she will then show it as Sareai land belongs to the Baheai clan. When cross examined by the defendants as to her past remarks in saying that Sareai land belongs to Sesehu clan, she replied that it was Sau and Pasa who said Sareai land belongs to Sesehu but she planned to safeguard the document until the appropriate time. She was not further cross examined by the defendants. When question by the court as to what happened between to two clans which lead to the disputation of the land, she replied that nothing happened.

The plaintiffs also stated in their evidence that it is the desecration of their two tambu site on Sareai land that caused the stoppage of logging on the Island said land. The second plaintiff stated in her evidence that on Wednesday 29th April 1998. Anthony Enesea and Hubert Sele went out to Sareai land to placate from causing harm to the company workmen. They shouted towards the hill but the devils would not listen and as a result the company closed down before actually completing logging on Sareai land. This was corroborated by the evidence of PW3 who when questioned by the court as to any appearances as unusual occurrences after the taboo sites were destroyed and he answered that after three days, there was a strange light at the wharf. There was no cross-examination of their witness.

The defence opened its case when second defendant Anthony Ene was sworn and he stated that he represented his clan. Kokolo Sesehu. He stated that the beginning of his tribe begins with Joses Lote. Joses Lote is the Chief of Sesehu clan before the chieftainship of his tribe passes down to Ashlen Rehi, Edwin Kuriti and Clara Borofena. The three above-named persons were borned by Pugele who was borned of Velahoi of Sesehu tribe. Velahoi was married to Isabala and beget three children namely Loduro Kasa. Pugele Vurutina. They all lived in Sareai land in the past. It is also from Sareai that they separated. Loduro Kasa went to Western Province, Pugele went to Katova, Vurutina got married to Nabulu of Baheai clan and they both live at Sareai. At Katova, Pugele got married to Safeli and beget Clara Borafena. Ashten Rehei and Kuriti. Clara Borofena got married to Samson Naguto of Khatova and their sons are Hubert Sele, Anthony Enesea and one female child died. Vurutina's marriage to Nabulu of Baheai clan resulted in Joses Lote being borned and no others.

Loduro Kasa who wen to Western Province begat Afuru. Afuru got married to Peter Hou and begat Peter (II), Andrew and four sisters namely Lite, Lumu, Kilu and Salome. Lite got married to Turukefu and they beget Solomon Kari, Xavier, Isaac and four females namely Mata Ote, Monica, Bessie and Florie. That is how Sesehu clan is related to people from Western Province today. In his evidence, the second defendant also outlined their taboo sites on Sareai land. These are as follows:-

1. Taratarisaa - where Sesehu clan still live today
2. Rokavaka - a big stone which still exist today
3. Custom umbrella at Votu point
4. Another stone located at Kolsemu point where enemies are beheaded and cut to pieces.
5. Ughua - a tamboo site where 5 men were turned into stone whilst carrying a canoe and is still there today.'

The two main rivers on Sareai land are Sasaeta and Koloemu. He also produced documentary evidence. These are as follow:-

1. Letter of appointment of John Roscoe by commissioner of lands JB Twomey - to acquire customary land from LR 678 to LR691 in which Sareai land was amongst, that in LR681.
2. Memorandum; of John Roscae to Commissioner of lands to the District Commissioner Central and Western dated 5/8/71 which was sealed with the District Commissioner Central Seal dated 5/7/71. This memorandum states that no clan other than Sesehu clan has any claim to Sareai amongst other things.
3. An undated Agreement marked Exhibit C - stating that in 1974, June, Taelegu settlement was given to Maringe people to resettle and signed by members of the Sesehu clan namely Austin Ralu, Kuriti. Borofena, and Hubert Sele, and Anthony Ene.
4. Agreement concerning customary land signed by Hubert Sele, Edwin Kuriti and Martha Kuriava. This is dated 17/10/73. They signed as grantors of the land to Commissioner of Lands.

With respect to granting of land at Sareai for Foelega people, coconuts were planted on Sareai for the benefit of the Sesehu clan. In his evidence, the second defendant also tendered a certificate of customary ownership with respect to a Timber Rights Hearing as well as a copy of a letter from the court certifying that no appeal was lodged against the decision of the Timber Rights Hearing. Furthermore a copy of the Licence granted to the Defendants by the Forestry Division to do logging operations on Sareai land was also tendered as evidence. The Kia House of chiefs decision was also relied upon to confirm that the Sesehu clan is the true and rightful owner of Sareai land when questioned by the plaintiffs on the custom prevailing in Isabel as to the inheritance of land, the second defendant replied that ownership of land through the mother's line (matrilineal). When question as to why Sesehu clan claimed Sareai land through their chief, Joses Lote, the second plaintiff responded that Lote is finished but since he (Lote) is of Sesehu clan, he has the right to own Sareai land.

The first defendant Mr. Sele gave evidence under oath and corroborated the second defendants evidence as afar as the acquisition of Sareai land by John Roscoe. He also confirmed that Peter Hou was brought from Roviana to plant coconuts on Sareai land. Furthermore, he pointed out that Peter Hou's relatives came later and extended the coconut plantation on Sareai. All these was done without any objection from the Sareai clan. Lote also gave a piece of land to his adopted son. Edmond Andressen. This piece of land is part of Sareai land where Mr. Andressen planted coconuts as well as built his house. When he was questioned by the court as to what clan owned LR676 to LR683, he stated that Baheai clan owned all those lands with the exception of LR681 (Sareai) which was given to Lote.

Having considered the evidences of both parties, this court noted the following factors:-

1. There are several instance whereby land can be acquired in custom. The first and foremost is original discovery. Usually, a tribe came from somewhere and when they found unoccupied land, they occupied it and define their boundaries from encroachment by other subsequent discovering tribes. On the land, they settled and established their taboo sites. Secondly land can be acquired in custom through conquering weaker tribes by killing the weaker tribes off. Thirdly a gift from the male line to the female line or Vice versa. And finally, land can be given to another tribe for bravery or other notable services. In this case, evidence shows that the Baheai clan are the original discoveries of Sareai land. This is apparent because they are also the owners of the other pieces of land bordering the Sareai land. There is no evidence that they gave the land to Sesehu clan or to any other tribe. This court believes that what was given to Joses Lote of Sesehu clan was merely a right to use the land. Usually in custom, the right to use the land and ownership of the land is not defined. There appears to be no distinction from the two concepts. However, it must be pointed out ownership of the land can only happen upon fulfillment of one of the earlier described concepts. Furthermore, long use of the land in custom toes not give any ownership rights to the occupier as in other imported land tenure systems.
2. Land in Isabel is inherited through the mother's line. In other words the custom of land inheritance is matrilineal as opposed to other societies in Solomon Islands where land ownership is Patrilineal (through father's line). The defendants claimed that they owned the land through their chief, Joses Lote. However, this could be true in a patrilineal system but not true in Isabel custom.
3. This court has accepted that Lote has truly and effectively transferred his rights whatsoever in Sareai land when he made his declaration in 1940. This was not vigorously questioned by the defendants and hence effective transferred of his rights to Sareai land is contained therein.
4. This court have found that the Sesehu clan originates from Jarihana and Haiteko. That is where their land is. The Baheai clan establishes its geneology and history from the past and how it moves down and occupy the territories surrounding Sareai land and Sareai land itself.
5. In any court, decision is based on evidence of the parties. The plaintiffs' evidence to ownership of Sareai land outweighs that of the defendants. The plaintiffs had established on a balance of probability that their clan were the original discoveries of Baheai land and the defendants have not seriously challenged this contention. Instead, the defendants maintained that their claim to Sareai land begins with their chief. Joses Lote, which is quite recent. Is it possible in custom for another clan to enter and live in an area that belongs to another clan? Unless for any valid reason in custom, this could not be possible. The defendants have failed to establish a bona fide claim to Sareai land in custom. The defendant's admitted that Baheai clan owns all the land from LR676 to LR683.
6. The documentary evidence submitted by the Defendants in qualifying their claim to Sareai land especially those pertaining to the acquisition by John Roscoe does not convince this court. One classic example is a letter from the Commissioner of Lands dated 5/8/71. The stamp on the letter was dated 5/7/71. This court doubts a letter being stamped or officially sealed in the first instance before being actually written. Moreover, the acquisition proceedings relied upon by the Defendants' is incomplete to say the least. This court cautioned itself in the application of received legal terms to this customary land case. Although the acquisition proceedings and subsequent timber rights hearings are of Persuasive Authority to this court, this court maintains that its Jurisdiction to hear this customary land case is not ousted by these determinations especially when the acquisition proceedings remains uncompleted.
7. This court further found that Toelegu, Bolotei and Dedeu settlements were given to the settlers by chiefs and/or members of the Baheai clan. The defendants only seriously challenge the handing over of Toelegu settlement to Maringe people but not the other settlements or lands given to others by the Bahea clan. This court believes that the presence of the chiefs and members of the Sesehu clan at the feast made by the Toelegu settlers only signifies the recognition of their rights of use to the Sareai land.

DECISION

1. The Plaintiffs. Nelson Kile and Dorah Kikolo for and on behalf of the Baheai clan have the Primary right of ownership to Sareai Land LR681.
2. Any new developments to be done on the land, permission must be sought from the Primary owners. (Baheai clan)
3. No order of court costs. Each party to bear their own costs.
4. Appeal within three (3) months as from below date.

Dated this 7th day of September 1998.