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Sura v Bosali [2015] SBCLAC 9; CLAC Case Number 03 of 1998 (22 May 2015)

IN THE GUADALCANAL CUSTOMARY
LAND APPEAL COURT

CLAC case number: 3 of 1998

Customary land ownership Appellant Jurisdiction

IN THE MATTER OF: THE LOCAL COURT ACT [CAP 144]

AND

THE LANDS AND TITLE ACT (CAP 93)

IN THE MATTER OF: TOTOBA/ KAMASA CUSTOMARY
LAND APPEAL

BETWEEN:

DAISY SURA
Appellant

AND

PAUL BOSALI
Respondent

JUDGMENT
Introduction

1. This is an appeal filed against the decision of the Guadalcanal Local Court over the Kamasa/Totoba customary land hearing held on 12th day of May 1995, at Tetere Police Station.
2. On preliminary discussion, the spokesperson for the Appellant party who represent the Kulanikama clan of Thogo lodged a written objection against the president of the GCLAC, Justice John Richard SEKETALA. In respect to that objection, the President has accepted the objection and excused himself to preside over the case. The vice president Justice John GATU presiding as the president in this case.

Brief history of this case

3. The land dispute between the appellant Ms Daisy SURA (Deceased) and the Respondent Mr Paul BOASALI (Deceased) has been gone through the Customary Chiefs hearing on the 27 of May 1997. The Gaobata Councils of Chiefs determined and award that both parties are landowners, in which, the primary ownership awarded to Daisy SURA and Secondary ownership to Mr Bosali.
4. Mr Bosali was not satisfied with the Chiefs decision, appeal to the Guadalcanal Local Court. The GLC overturned the Chief's decision, determined and award the ownership of Totoba and Kamasa land to Mr Paul Bosali of Lathi tribe as the primary ownership, whilst the secondary right of ownership was awarded to Daisy SURA.
5. Ms SURA was not happy with the GLC decision, appeal to the Guadalcanal Customary Land Appeal Court for further determinations on the following grounds.
   • (i) The Guadalcanal Local Court is erred in law to determine and grant primary ownership of Totoba and Kamasa land against the evidence available in court.
   • (ii) The local court proceeding is not procedural and more likelihood of biasness.
   • (iii) The GLC is erred in law to determine over the ownership of a disputed land (Totoba/Kamasa land) without proper site inspection.
   • (iv) The GLC is wrong in law when they failed to accept customary evidence on sacrificial site.
   • (v) The GLC is wrong in law and custom fo not accepting the evidence of the last descendants of Thogolalathi.
   • (vi) The GLC is erred when they failed to accept the Chiefs determination over the right customary ownership of Totoba and kamasa customary land.
6. The court will deal with the above grounds of appeal in turn:

Ground 1

7. Mr Ben Tabala, Spokesperson for the Appellant, contended that the customary chiefs have been given power by the Land and Titles Act to determine on any land disputes on customary issues. They are the one that have better understanding and knowledge about custom and tradition disputed land. In this case, it was first heard by the Gaobata Councils of Chiefs in which the Chiefs believe the history and customary evidence submitted by Ms Daisy SURA as the plaintiff who is now the appellant in this proceeding. We have produced to the Chiefs hearing our customary evidence such as sacrifice places, the name of the devil, burial sites. The defendant side (Bosali) failed to prove to the Council of Chiefs their true history and customary evidence. What they have presented before the council of chiefs has no basis according to our traditional understanding of the disputed land. That same purported history and story was also produced in the Local Court in which they have accepted it. We believe if the Local court panellists are so honest and genuine in their assessment, they would not accept such evidence that has no customary background.
8. On the other hand, the respondent spokesperson responded and say that this land disputed has been gone through many legal hearings, and all the decisions has been awarded the primary ownership of Totoba and Kamasa to Paul Bosali who is the Respondent in the CLAC proceeding. They have the same knowledge that the land in disputes are belongs to the Lathi tribe through Paul BOSALI. The chief has carried out land survey or land inspection on these lands. Even the Chief or local court justices conducting any site inspection, they won't find any evidence of sacrificial or tabu site belongs to thongo tribes because these sites are well outside the boundary of Totoba and Kamasa land. He further contested that the true identity of the Lathi tribe were well placed right inside the Totoba —Kamasa land. Reitegha then took the heathen god, Padaghi from Vataghobu and palced it at Tabokena. Reitegha then took another heathen god, the Thaliudani Vighone and placed it at Totoba. Reitegha is Bosali's uncle according to the family tree.
9. Having considered all submission from both parties, the court has the opportunity to go through documentary submission available in court and held that there is no customary evidence to prove their history. What has transpired from the evidence available in the local court are evidences without any customary prove that one tribe owns the land. This ground of appeal is held up and allow.

Appeal Ground 2

10. The appellant contended that the Respondent failed to submits their family tree during the Chiefs hearing and the Local Court hearing. The Gaobata Council of Chiefs recognised the importance of family tree in any disputed land. In the GLC, the Respondent did not submit any family tree, it was submitted after both parties have gone through cross examination stage. We don't have any opportunity to cross examination that family tree later submitted to the local court. I submit that my rights to cross examine any document or evidence submitted as part of the evidence was denied by the court. Therefore, I submit that this is unprocedural proceeding and a straight forward biasness proceeding.
11. According to the Respondent written submission tendered before the court, the spokesperson submits that there was no family tree submitted by the Thogo tribe. However, he further submits that the Lathi tribe did not migrate in searching for new land in the past. The Lathi tribes owns most of its land through payment of wining fights during the heathen days. A copy of the Tathi family was submitted among the respondent's submission.
12. The court has the opportunity to go through the documents available in court. They also have the opportunity to assess the written decision of the GLC. The court could not find any references made by the local court in regards to family trees. If the GLC accept the family tree from the lathi tribes without cross examination by the other party, then, the GCL is erred in law to accept evidences that has not been cross examination by the other party. This ground of appeal is allowed.

Appeal Ground 3

13. The Spokesperson for the Appellant contested that the GLC erred in law when they have refused their request to do ground survey or site inspection in the processing of the Local Court hearing. It shows their lack of seriousness to properly deal with this case. It is submitted that land inspection is a vital aspect when dealing with the ownership of any disputed land. If the GLC had taken further step to inspect the land in disputed, they would have found that the Respondent has nothing at Totoba and Kamasa land. It was so surprising that the GLC assuming the evidence submitted without their ground assessment. According to the Appellants history, they have some very important customary evidence inside the land in question. For instance, custom tree, ie breadfruit tree, coconut tree, sacrificial site, tabu site, etc.
14. The respondent response to this ground of appeal by saying that the GLC denies to conduct any further site inspection on the disputed land since it has been carried out by the previous custom chiefs hearing. They have concluded that having another ground visit to those disputed sites may not necessary because the location of the sites won't change. Travelling from Tetere police station to the actual sites will take a lot of time and distance.
15. Having considered both submissions, the court is satisfied that the GLC is erred in law to ignore to undertake any site inspection to the disputed land. It is clearly indicates at the outset that the GLC has causing a legal mistake when they refused any site survey although it was requested by the Appellant's party. The finding of the Local court is that "the plaintiff (Paul BOSALI) stated that the land was originally owned by the Thimbo tribe and was transferred to him of Lathi tribe on behalf of Bosali who he was named after killing of the warrior from Gela. The disputed land was given to him as a reward for his bravery. After which he transferred his sacrificial sites to the land (Totoba/Kamasa). The devil which he worshiped within the disputed land was Thaliudani (snake) and Vadani (spirit)". There was no ground inspection to rectify this piece of customary summary which the court relied to it and determined in favour of the Respondent. It is clear from the outset that the GLC findings are not substantiating from the evidence from site assessment. This ground of appeal is allowed.

Appeal ground 4

16. The Appellant submitted that the GLC erred in law to accept the existence of the Thogolathi, however, did not accept they have worship the same gods as Thogo tribe.

It was submitted to the GLC that the Thogolalathi according to the Thog history and custom came under the protection of thongo tribe for fear of the Ghaubata tribe or line. This contention was accepted by the Chiefs hearing but was not accepted by the local court.

17. On the hand, the Respondent submitted and says that the Thogolalathi is not an existing tribe in the history of Ghaubata tribe. It does not exist even in the beginning, at the time of great tribal separation and migration to Ghaubata area. They have no sacrificial sites in any Lathi land.
18. After considering all submission from both parties in relation to this ground of appeal, the court is satisfied that this contention has been asses on other grounds of appeal. Since there was no proper assessment by the GLC on history and customary evidence on site assessment. This court could not determine which history has the potential customary argument. This ground of appeal is dismissed.

Appeal ground 5

19. This court is unanimously agrees that this ground of appeal has discussed on some of the grounds of appeal already covered as above. This ground of appeal is dismissed.

Appeal ground 6

20. The respondent argued that the GLC decision is totally biased. The decision is wrong as the weight of the evidence both in the Chiefs hearing and the Local Court has proved in custom that Vaga and Thariri gave land to me are all evidence which proving our ownership of Totoba and Kamasa land. The GLC decision awarding the primary ownership to Bosali and secondary right to Dalsy SURA is a mistake against the weight of the evidence. This decision is a pre-determined influence from outside of the court.
21. In responding to this grounds of appeal, the Respondent submitted and says that the overall evidence from the Appellant is inconsistent all through the GLC proceeding. This court should not believe it as a genuine history.
22. When summing up the final submission from both parties, the court is satisfied that the GLC is erred although the proceeding. As a result awarding the ownership of Totoba and Kakama land to the plaintiff.

Conclusion

23. Base on the above findings, this court is of the view that the appeal is allowed on the basis that the Guadalcanal Local Court is erred in law to determined the ownership of Totoba/Kamasa. There was no proper assessing of the customary evidence in this case, no site visit to rectify the customary evidence produced by the Respondent ( Paul BOSALI) and the Appellant (Daisy SURA).

Order:

1. Appeal allowed,
2. The GLC decision on the 6th of May 1989 is set aside.
3. The matter is remitted back to be heard by a new Local Court justices, and
4. This court decline to make any order as to cost.

Decision was verbally announced on the 23rd of March 2015 and written judgment delivered on dated this 22nd of May 2015.
Signed: