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Usuli v Tofasi [1982] SBCLAC 4; Malaita Customary Land Appeal Case (6 October 1982)

IN THE CUSTOMARY LAND APPEAL COURT

Between

DONGA USULI
Appellant

AND

GAGAME TOFASI
Respondent

SUBJECT MATTER: LESSER AENAGONO LAND

(excluding ANOKWALEKWALE and TAFUITA)

DECISION

1. The land in dispute between the parties has been called Aenagono land by them and is delineated by a red line on Plan 'A' produced by Gagame in this Appeal and agreed between the parties at the outset of proceedings as defining the land in dispute. One clear fact that emerges from these proceedings is that it is somewhat misleading to define the disputed land as Aenagono land because the disputed area only forms part of a greater area of land called Aenagono land, within which greater area are situated sacrifice places including the principal place called Aenagono itself. For the purposes of clarifying these proceedings the land in dispute between the parties will be called Lesser Aenagono land and this clarification is necessary because we are dealing only with part of larger area called Aenagono land. Lesser Aenagono land is thus the area delineated by a red line on Plan 'A'.
2. This court has been required to consider two earlier decisions affecting Lesser Aenagono land and these are now referred to '
   • (a)(i) In August 1972, the High Court of Western Pacific (Native Land Appeal No 4/1972) in a case between MASIKISI v GAGAME decided that two adjoining parcels of land known as ANOKWALEKWALE and TAFUITA belonged to GAGAME and that MASIKISI and his line had no beneficial interest therein.
   • (ii) The boundaries of these two parcels of land ANOKWALEKWALE and TAFUITA were not marked out and agreed until 17th June 1975, when they were marked out and agreed between the representatives of GAGAME and MISIKISI, although no record of them was made on any plan available for perusal and consideration by this court.
   • This court cannot define or take further the exact boundaries of ANOKWALEKWALE and TAFUITA and in the event of future dispute the question of definition will need to be referred to the local court.
   • (iii) This court is bound by this earlier decision of the High Court of the Western Pacific relating to ANOKWALEKWALE and TAFUITA, which are parcels of land within Lesser Aenagono land.
   • (b)(i) Considerable efforts have been made to trace the local court record of a case between GAGAME v MOSES TETEAU held at GWAUNATOLO in 1974 relating to two pieces of land known as TAFUITA and KWALDOU. The local court was held by Vice President Konia and he has been consulted in the absence of the local court decided that both parcels of land TAFUITA and KWALDOU belonged to GAGAME.
   • (ii) This court finds as a fact that KWALDOU is outside Lesser Aenagono land to the east thereof.
   • (iii) The local court followed the earlier decision of the High Court of the Western Pacific in recognizing GAGAME as the owner of the land called TAFUITA within Lesser Aenagano land.
3. This court finds that RAEA, the ancestor of GAGAME was driven out of his homeland of TARII by war and fled then to the Aenagono line who gave shelter to him and his people. Raea and his people were so helpful to the people of Aenagono giving them money and fish for feasts that after a great feast the people of Aenagono line gave the pieces of land known as ANOKWALEKWALE and Raea. The court finds in custom that GAGAME is entitled by reason of custom gift to the two parcels of land knows as ANOKNWALEKWALE and TAFUITA within Lesser Aenagono land. The court also finds that the custom gift to GAGAME did not include any other land within the Lesser Aenagono land.
4. This court attaches great importance to its findings upon the land survey and the court made the following finds relating thereto:-
   • (i) Neither Donga nor Gagame had any sacrifice places within Lesser Aenagono land. (excluding ANOKWALEKWALE and TAFUITA)
   • (ii) The burial place at the village of Bae Lae did not relate to either Donga or Gagame.
   • (iii) In the area between the main road and the sea (excluding ANOKWALEKWALE and TAFUITA) Gagame indicated old coconut plantations claimed by him that were likely planted 40-50 years ago.
   • (iv) On the other side of the main road (excluding ANOKWALEKWALE and TAFUITA) Gagame also claimed new coconut plantations planted 4 - 8 years ago.
   • (v) Gagame also indicated gnali nut trees claimed by him in the land (excluding ANOKWALEKWALE and TAFUITA). That is consistent with his agree absence from the land.
   • (vi) Donga was unable to show any plantations of gnail nut trees or any property belonging to him with-in Lesser Aenagono land. (excluding ANOKWALEKWALE and TAFUITA) That is consistent with his agreed absence from the land.
5. The court finds the following facts as regards Lesser Aenagono land (excluding ANOKWALEKWALE and TAFUITA):-
   • (a) GWEA was the first discoverer
   • (b) MATO'ONA was a direct male descendant of GWEA
   • (c) On the death of LIOFASI, the male descendant of MATO'ONA, the sister of LIOFASI (TORIKAO) became entitled to Lesser Aenagono land. (excluding ANOKWALEKWALE and TAFUITA)-
   • (d) On the death of LIOFASI, the male line of GWEA died out
   • (e) DONGA USULI is a direct descendant through TORIKAO
   • (f) DONGA USULI and his line are entitled as primary owners through female line of descent, from TORIKAO, to the land known as Lesser Aenagono land (excluding ANOKWALEKWALE and TAFUITA)
6. This court makes no findings in relation to the rest of Aenagono land (ie greater Aenagono land) because it was required by the parties to consider only the land known as Lesser Aenagono land.
7. In custom, the court finds that, after the death of Liofasi, although he had no rights therein GAGAME used and now has many properties upon Lesser Aenagono land (excluding ANOKWALEKWALE and TAFUITA) such as coconut plantations. This must have occurred in the absence of the primary owners. This court now recognizes that, in custom, GAGAME has the right to remain and enjoy the the fruits and benefits from his properties so long as they are productive but he has no custom rights whatsoever to the land itself. DONGA must recognize this custom right of GAGAME to remain and enjoy the fruits and benefits from his properties so long as they are productive and whilst that right endures Gagame cannot be required to leave the land. GAGAME has no right whatsoever to commence any new development or replanting of any nature whatsoever upon Lesser Aenagono land (excluding ANOKWALEKWALE and TAFUITA) without the full consent or the primary owners who are CONGA USULI and his line.
8. This court has taken into account all the comments made by the parties relating to the earlier decisions referred to herein.

DECREE

1. GAGAME is entitled to the ownership of ANOKWALEKWALE and TAFUITA within Lesser AENGONO land. .
2. DONGA USULI and his line are the -primary owners in Lesser AENAGONO land (excluding ANOKWALEKWALE and TUFITA). GAGAME has the custom right to remain and enjoy the fruits and benefits of his properties as long as they remain productive within Lesser Aenagono laud (excluding ANOKWALEKWALE and TAFUITA) but he has no custom rights whatsoever in the land.
3. Further, GAGAME has no right whatsoever to commence any new development or replanting of any nature whatsoever in Lesser Aenagono land (excluding ANOKWALEKWALE and TAFUITA) without the full consent of the primary owners who are DONGA USULI and his line.

Dated this 6th day of October 1982.

Enosh. Fisu Vice-President
J. Rodoibiu
S. Kwaifii
Jeriel Fiku
Joseph Kaia
A.B. Parker