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Orodo v Arurumae [2010] SBLC 2; Land Case 17 of 98 (30 August 2010)

IN THE MALAITA LOCAL COURT
IN THE MALAITA PROVINCE

HELD AT AUKI ON 9th AUGUST 2010
LAND CASE NO. 17/98: FERASAE PARCEL LAND.GTR NO: B633696.

BETWEEN:

1. JOHN ORODO of Fote Village
2. GABRIEL LUSUMANI of Fote Village (Spokesman)
3. MODESTOR IALIFU of Fote Village
4. ALFRED DAENALA of " "
5. STANLY MCLIN of " "
PLAINTIFFS

AND:

1. ALFRED ARURUMAE of Fanoadala Village -
2. VICTOR SIKI of " "
3. JOHN LIU (Spokesman) of Sasale Village
DEFENDANTS

IN THE MATTER OF: THE BOUNDARY AND OWNERSHIP OF FERASE LAND.
JUDGEMENT DATE: 30TH AUGUST 2010

JUDGEMENT

1. ISSUE BEFORE COURT:

The very Issue before this Court is to determine the ownership and the boundary of Ferasae parcel of land against the Tabakwakwa customary land.

2. GAINING THE CASE:

The probability of gaining the Case lies in the evidence tendered in court by each party for the court to prove. The party whose evidence is more probable to be worthy of believe as to the truth of the facts in custom should have a high probability of gaining the Case.

3. HIGH COURT ORDER:

Civil Case No. 108 of 2009 held before the Acting Registrar of the High Court Mr Kelly Levi on 2nd February 2009, ordered the claimant John Orodo and defendant Alfred Arurumae that the case, Civil Case No. 17/98 be heard and "determined by the relevant Land Courts." (Re: Plaintiff's Exhibit No. 5). Thus, this Court has to takes its role to hear this Case. (Refer to Plts Exhibit No. 5).

4. CHIEFS SETTLEMENT.

The Buma Council of Chiefs has settled Ferasae Parcel of Land in favor of J. Orodo on 3rd July 1998, and because of Chiefs limited avenues this Case No. 17/98 is brought before this Court.

This Court is a neutral body and has jurisdiction to carry on resolving the long outstanding dispute between the plaintiff and defendant parties respectively. This Court must remind itself about the Orders from the High court of Solomon Islands.

5. A. PLAINTIFF'S CLAIMS.

a). Ancestry/Origins

John Oiorodo, Gabriel Lucimani, Modesto Ialifu, Alfred Daenala and Stanly Mclin, the representatives of Ferasae have claimed that Ferasae Parcel of Land is owned by them as female descendants.

They own the land basically because it is given to their line, through a woman Ofilalamua of Anotafa tribe. Ko'oa of Kwailamudu married to Ofilalamua who begets a son Bofiu, Bofiu creates Ferasae. (Refer to Plt's Exhibit No. 2).

b). Migration History

The people of Ferasae are believed to have come from Kwailamudu Land on the male side.

c). Generation.

The generation of Ferasae is shown on the table in Plt's Exhibit No. 3. It is believed that Ferasae Genealogy table only shows female line descendants. No male line exists after a tribal war breaks out between the Saua and Tauba Warriors who fought with the Ferasae men. One of the Warriors who leads the fight is Iro'omea of Saua. It is believed that Ugwango, Koeda and Kui have been killed during the war.

d). Boundary.

The Ferasae boundary starts at Bio mouth at the sea, follows up the Bio River to Kwainarako River, hence turns east and follow the Gwaisalu Stream to Arua Stream, down to Gwea Stream, down to Talinga Gwea, right down to the sea. Follow the seacoast south ward until it reaches the Bio mouth where it first starts. (Refer to map - Exhibit No.1).

e). Tabu Sites

1. Alasimae

2. Tarabala

3. Gwaikino

4. Ferasae (principal tabu site)

5. Buriki

6. Adaimai

7. Totoni

8. Rakusisiu

9. Busufo'oka

6. Other Activities

The plaintiffs also claim that one of their tabu sites, Adaimai was compensated by a Golden Spring Logging Company. The coming of Taisol Logging Company to Ferasae is being arranged by them. (Refer to Exhibit No. 2 C and 2B).

7. Corroborative (Witness) Evidence

Plaintiff witnesses 1, 2, 3 and 4 confirm.

B. DEFENDANTS DEFENCE.

Mr. Alfred Arurumae and Victor Siki of Tabakwakwa Customary Land have put a defense against the plaintiffs claims of Ferasae Parcel of Land in the followings:-

1. Origins of Ferasae

Ferasae is NOT a parcel of Land given by Anotafa tribe as claimed by the plaintiffs - Gabriel Lusimani and John O'orodo of Fote Village. Instead the defendants' emphasis Ferasae is only a settlement within Tabakwakwa Customary Land. Ferasae is originally named Gwaibaibai. DW1 confirms.

2. Plaintiff's Generation
The defendants Alfred Arurumae and Victor Siki totally deny the plaintiff's - Gabriel Lusumani and John O'orodo's female's table of Ferasae geneology. (Refer to Ferasae geneology Plt Exhibit No. 3).

Instead, Alfred Arurumae explains that Hangosi and Aika are the women of Fauhifua tribe. Their father is Amari. The two women Hangosi (f) and Aika (f) whom G. Lucimani and J. O'orodo have claimed to be the females of Ferasae were not true. In fact, they are of Fauhifua tribe. DW2 confirms -

The defendants also explains that John O'orodo is of Kofila line from Kwailamudu tribe, Kofila's line lived in Kwailamudu for nine generation before recently when Booi came and stays with Manuliu at Ano'ofa. Booi begets Fairoa. Fairoa begets John O'orodo the plaintiff in court. Bo'oi comes after the civil war that happens at Bio River mouth. Gabriel Lusumani is of Liitai Gwaisaia tribe. He is the male descendant of Kotufu line.

3. Migration History of Kwailamudu (Defendants)

MAN - KUFIAU and ABUNARI (f).
While the defendants still deny that the plaintiffs are of Ferasae females they admit that only Kufiau who marries to Abunari of Tabakwakwa does come to Gwaibaibai in Tabakwakwa Customary Land. Kufiau and his family have to escape from the tension caused by the people of Kwailamudu with their custodians. Some unknown people of Kwailamudu have practiced sorcery activities which caused deaths to their custodian. Their custodians have to arrange tribal warriors from North to kill the people of Kwailamudu at Bio River Mouth.

Kufiau and Abunari beget three females namely (1) Saretona, (2) Orofiramo, (3) Tagona. Saretoona marries Faitoa of Radeni tribe. Orofiramo marries Fanabulao of Fuaniu tribe and Tagona marries to Manuliu of Ano'ofa tribe.

Kufiau and Abunari and their families are the survivors who stay at Gwaibaibai and later called it Ferasae. Gwaibaibai or Ferasae is only a settlement within Tabakwakwa customary land. DW1 confirms.

4. Corroborative or Witness Evidences (Cassette and PW 2 & 3)

Alfred Arurumae explains that the cassette recording of his words about Ferasae history and spearline is done through threat by the people of Fuluma tribe. One of them also hides a recorder in his basket to take his words. He inevitably tells them that if you of Ferasae are of female, you also have the right with me. He further emphasizes that he does not show the boundary at Gwaisalu as the spearline between Tabakwakwa and Ferasae.

He also denies the witness evidences from PW3 the son of Francis Kwalagau, who was his witness of Tabakwakwa Case No. 1/87. He further denies PW2 whose father Mahlon Batalofo has agreed with him to draw the boundary on the northern part of Tabakwakwa.

At the end of his defense Alfred Arurumae and Victor Siki totally deny that theplaintiffs are of Ferasae female lines and that the witness statements of their witnesses PW1, PW2, PW3 and PW4 about Ferasae as a Parcel of Land are false informations. He maintained that Ferasae is only a Settlement within Tabakwakwa Customary Land.

6. DEFENDANTS' PROOFS

(a) Previous Land Cases

The defendants further support their case by claiming that the Tabakwakwa customary land has gone through the following Court cases:

1 Def: Exhibit No. 4 Local Court civil case no. 10 of 2000.
2. Def: Exhibit No. 5 Civil Case No. 1/87
3. Def: Exhibit No. 6 H/C civil case no. 4 of 1988.
4. Def. Exhibit No. 7 L/C civil case no. 5/1998.
5. Def: Exhibit No.3 - Melanesian agreement with Alfred Arurumae. The Tabakwakwa land owner.

(b) Boundary

The Tabakwakwa boundary starts at Bio river mouth, follows up the Kwainarako River, thence turns to east through Duidui stream to meet the Kwaisuliniu feeder road. Then follow the road (east to north direction) to meet Gwaia stream. Then follows the Gwaia stream down (westward) to Aramae stone at the sea coast, thence to Bio River mouth where it first starts.

The Tabakwakwa Tabu sites are also in the map (Refer to def. Exhibit No.1). Mahlon Batalofo has agreed with him to draw the boundary on the northern part of Tabakwakwa.

7. COURT FINDINGS

1. Conflicting Issues

(a) While the plaintiffs claim that Ferasae parcel of land is given to them by the Anotafa tribe through a woman by the name of Ofilalamua who marries to Ko'oa of Kwailamudu tribe, the defendants say that Ferasae land is only a settlement within Tabakwakwa customary land. Only Ufiau of Kwailamudu who marries to Abunari of Tabakwakwa comes to stay at Gwaibaibai and later it is changed to Ferasae land.

(b) The Court finds that plaintiffs strongly emphasizes that they are of Ferasae female lines. On the other hand, the defendants deny them. Hangosi (f) and Aika (f) whom the plaintiffs claim are of Fauhifua tribe and NOT of Ferasae female lines.

(c) While the plaintiffs claim that Alasimae, Tarabala, Gwaikino, Ferasae (principal), Buriki, Adaimae, Totoni, Rakusisiu and Busufo'oka are their tambu sites in Ferasae, the defendant also claims that Bina'abu, Alasimae, Sakwalo-musu, Buriki, Ferasae, Kunu, Kwaikino are in Tabakwakwa customary land.

(d) While the plaintiffs also claim that Gwaisalu stream joining the Kwairako river down to Bio river mouth at the sea coast as the eastern-western boundary dividingFerasae from the Tabakwakwa land (Refer to Plt's map), the defendants totally deny it. Instread, the defendants emphasize that their northern boundary of Tabakwakwa is through Ngwaia stream which runs down on westerly direction and ends at Aramae stone at the sea coast. (Refer to defendant's map).

(e) The plaintiffs also claim that they make agreement with Taisol Company to do logging operation and timber cutting in the Ferasae land. On the other hand the defendants also allowed Golden Spring to do logging operations in Tabakwakwa customary land.

(f) The plaintiffs strongly claim that defendant Alfred Arurumae does tell custom stories about Ferasae and it is recorded in a cassette (audio tape) and he also show them the Gwaisalu boundary. The defendant on the other hand, denies showing the Plaintiffs (PW1 - Peter Ufa) the Gwaisalu boundary and explains that the recordings are done with threat by the people of Fuluma tribe.

2. Previous Records

a. Court Cases

The Court also finds that the Tabakwakwa (or Tabakokoa) customary land has gone through the following cases and won by the defendant:

(i) MD/LAC/1/87 (Customary Land Appeal Court case)
(ii) LAC No. 4 of 1988 HC (High Court case)
(iii) LC No. 10/2000 (Local Court case)

b. Registered Land

The Court also finds that the defendant receives the rent for the Airahu Training Centre Lot LR 796: Parcel no. 151-013-1

c. Original Map

The Court also finds that Alfred Arurumae's original boundary map used in case no. MD/LAC/1/87 excludes the Ferasae parcel of land while his present map includes Ferasae, the land in dispute.

d. Fanoabu Land.

The Court also finds that Fanoabu land [at the western end (sea coast) of the Defendant's map] has its own judgment in civil case no. 7/97

3. Common Grounds

(a) The plaintiffs and defendants have both admitted through their stories and answers to the questions during the cross-examination that the people who once lived in Ferasae are of Kwailamudu tribe.

(b) The plaintiffs and defendants also both agree that there is a tribal war led by north warriors namely, Iromea from Saua and Tauba and have killed males of Kwailamudu who have lived in Ferasae at the Bio river mouth (Refer to cross examination questions and answers in the proceedings).

(c) Both the plaintiffs and defendants also admit that only female lines have survived.

(d) Both the plaintiff and defendant parties claim rights to the same tabu sites within the area in dispute

8. CONFIRMATIONS
   

(a) The Court believes that Bofiu, the line of the plaintiff's female genealogy and Kufiau's female lines still exist today and that they are female lines of Ferasae.

(b). The Court also believes that the tribal attack led by Iro'omea of Saua and Tauba of Northern Malaita extincted the male line of Ferasae by killing Ugwango (m), Koeda (m) and Kui (m) at the Bio river mouth. Thus, this confirms the claim that only the female lines existed today.

(c) The Court also confirms that the Tabakwakwa customary land has been legalized by the Customary land Appeal Court case MD/LAC/1/87and High Court case LAC No. 4 of 1988 with Alfred Arurumae's original boundary map.

9. SURVEY FACTS
   

In surveying the disputed area, the Court believes the Gwaisalu stream that runs down to the Kwainarako River and to Bio River to the sea in the east - west direction (or southern spearline of the disputed land) is a true customary boundary with true customary marks (valley, stream, river, coast line).

Though the plaintiff and defendant do not show much evidence to be proved by court in the land proof survey, both parties admitted receiving compensation money for damage of one of the main tabu sites in the disputed area that would have assisted the court very much in its findings. This is the Adaimai (or Adaiasi) tabu site which is damaged by logging operations by the Golden Springs logging Company. For damage of this particular tabu site, the plaintiffs received the sum of $1,250.00 and the defendants received $3,000.00 as compensation.

The other most important determining factor that should have proved the claim over the Ferasae land is the Ferasae Principle tabu site. However, the survey of this crucial tabu site has been objected by a third party who threatens to claim compensation from the Court and parties in dispute if they enter this tabu site which, he claims, belongs to his tribe. Thus, the Court did not survey this particular but important custom evidence.

SUMMARY

The Court regards the area in dispute as one and the same area claimed by both disputing parties. The plaintiffs claim it as Ferasae land while the defendants claim it is part of Tabakwakwa customary land. This is possible in the case that both disputing parties are female related to the area in dispute. That is, both claim the same area of dispute and the tabu sites/custom significances therewith in the area of dispute but under different names known only to their respective lines since they descend from different female lines of the area. As such, neither of the parties in dispute should deny the other party's rights in custom to the area in dispute.

Thus, having considered all the evidence adduced before this court and having regard for other custom evidences prevented from this court by unfortunate circumstances, this court is satisfied to deliver the following determination:

DECISION:

1. Ferasae is part of Tabakwakwa customary land.

2. Tabakwakwa customary land is still upheld with the defendant's original map.

3. John O'orodo and Gabriel Lusumani and their clans have equal rights with the defendant to the area in dispute marked and shaded in the defendant's original map attached herewith.

4. The Airahu Training Centre: Lot LR 796: Parcel No. 151-013-1 is to be excluded from this judgement.

5. Fanoabu land is to be excluded from this judgment.

6. Both parties are to consent to any future developments and share any rental payments for any parcel of land leased out within the area disputed.

7. The parties are to reconcile and respect each others properties within the area disputed.

RIGHT OF APPEAL

Either of the parties who is not satisfied with this decision can lodge his appeal to the Customary Land Appeal Court within three (3) months or ninety days with effect of this date: 30thAugust 2010 - 26th November 2010.

COURT OFFICIALS

Rinaldo Talo ______________________________________________President

Liu Ratai ________________________________________________Court Member

Alphonse Wale_____________________________________________Court Member

Hillary Fioru._______________________________________________Clerk

Date: Friday 30th August, 2010