[1983] SILR 56

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No.9 of 1982

IGOLO

v

ITA

High Court of Solomon Islands
(Daly C.J.)
Customary Land Appeal Case No.9 of 1982 

7th April 1983

Customary land - custom - presumption of legitimacy - received rule does not apply in custom - Chief - appointment of - factor in customary land case - courts may consider - constitution Schedule 3 para. 3.

Facts:

The Local Court had decided that the Appellant was “the appointed chief people and Kohingo land” and that he was the true son of IGOLO”. On appeal the Customary Land Appeal Court (“the C.L.A.C.”) however decided that the Appellant was the son of Q and another man, L. They further decided that IGOLO was not the overall chief but only chief of his own people and that it was open to the people to choose the over all chief. The Appellant appealed to the High Court claiming (1) that as IGOLO was born in wedlock he should be presumed to be legitimate until the contrary is proved beyond reasonable doubt and (2) that the C.L.A.C. were wrong to make findings as to chieftainship as those findings were not within their functions.

Held:

1. That the customary law has effect as part of law of Solomon Islands insofar as it is not inconsistent with the Constitution and an act of Parliament (Schedule3 para 3 of the Constitution). The rule of received law as to presumption of legitimacy would therefore not override custom and the customary law would apply. The custom rule relied on in the C.L.A.C. and Local Court used no such presumption but dealt with the case on the evidence.

2. Where the question of whether or not a man is a chief is a factor in a customary land case, it is open to the courts to consider whether or not the person concerned was validly appointed in custom (Kalavasiri -v- Pitakoe and another C.L.A.C. No. 4/1982 followed). The C.L.A.C found that there was no custom ceremony for the appointment of chief held and in the absence of such ceremony there was no chief. This was a finding open to them.

Appeal dismissed.

For Appellant: A. Nori 
Respondent in person

Daly CJ: This is an appeal against a decision of the Customary Land Appeal Court (Western) (“CLAC”) given on 23 April 1982 in which that Court said that KOHINGO land was owned by the LEANABAKU people who were represented in Court by Joseph ITA. The Vella Lavella Local Court had decided on 13th October 1981 that the present Appellant KOETE IGOLO was “the appointed Chief of people and KOHINGO land and people. The Local Court also said that the “Court believed that Mr Koete is the true son of' Igolo”. These two conclusions were strongly disputed in the CLAC where the case for the Respondent was that the Appellant was not the true son of IGOLO and that he had never been appointed chief of KOHINGO land and people. It can be seen from the findings of fact which the CLAC reached that the Respondent succeeded in establishing his case. Finding (2) reads: - 

“That Igolo married Qulasabe by whom he had two children both of whom died. After their death Qulasabe committed adultery with Lengi and became pregnant. She gave birth to Koete Igolo, the elder of the two Respondents. After the birth of Koete Igolo Lengi took Qulasabe as his wife.”

As to the chieftainship the CLAC found as follows: - 

“1 .Chieftainship

a) Koete Igolo is not the overall chief of' the Leanabaku tribe in Kohingo. He is only the chief of his people who now live at Boboe.

b) There is at this time no chief of the Leanabaku tribe. The people of the tribe are at liberty to choose a chief if they so wish.”

Perhaps it is worth referring to one other finding on the subject of the Appellant’s parentage. This is finding 4: -

“Later Igolo, because he had no surviving child, took Koete Igolo as his adopted son (Vinatakele).”

It is the former findings which are challenged in this appeal.

In relation to the finding as to parentage Mr Nori for the Appellant takes the point that in received law there is a presumption that a child born to a wife whilst a marriage is subsisting is presumed to be a legitimate child of the marriage until such time as the contrary is proved beyond reasonable doubt. Therefore, he submits, as the marriage of IGOLO and QULASABE was subsisting at the date of birth of the Appellant the CLAC should have found in the absence of cogent evidence to the contrary, as a matter of law, that the Appellant was the legitimate son of IGOLO.

This submission gives rise to the interesting question as to the law applicable in a customary land case such as this. I start with our Supreme Law, the Constitution. This provides in Schedule 3 paragraph 3 as follows:

“3. (1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands

(2) The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.”

It will be noted that there is only reference to customary law not applying where it is “inconsistent with this Constitution or an Act of Parliament”. There is no reference to the inconsistency of customary law with the received law, that is “the Acts of Parliament of the United Kingdom of general application and its force on 1st January 1961” (Schedule 3 para 1) and “the principles and rules of the common law and equity” (Schedule 3 para 2). Therefore, if the CLAC in this case when applying customary law to decide whether or not the Appellant was legitimate it could be forcefully argued that that law would prevail over the received law regarding legitimacy by virtue of Schedule 3. It maybe that this would have what counsel says is the unattractive result that a man must prove his legitimacy instead of the reverse, but if it is found to be unattractive Parliament could remedy the matter by an Act.

The second consideration is that this is a case in which customary land is under discussion and rights to customary land should, on the basis of common sense, be dealt with in accordance with the customary traditions and any principles which have evolved from them. To try to impose in such traditional situation a received law such as the one to which counsel refers is, to say the least, unsatisfactory. I therefore conclude that both in law and common sense a customary law in the circumstances referred to would take priority over a received law.

The question is, was the court applying a customary law? In this context I use the word “law” in a wide sense. In the Local Court on page 1 of the record one finds this passage in the evidence of the respondent: - 

“Another legal matter was happened to Igolo’s wife, Qulasabe, she committed adultery to Lengi, the wife was pregnant, and Koete was born. Lengi was a single man, from Kokoqu, he was married to Igolo’s wife, Igolo’s wife was married to a different boy. So the family were planned to return to their own land at Duke.”

The Appellant maintained that this was not true and called evidence to this effect. He did not suggest that there was any customary rule which said that if the marriage of Igolo and Qulasabe continued he must be regarded as the son of Igolo. In the CLAC too the matter was approached on the same basis, that is, that if it was established that the Appellant was not the natural son of Igolo then the court must approach the case on that basis. That matter was established to the satisfaction of the CLAC and, to add strength to their finding they also found that Igolo adopted the Appellant, a course which would have been quite unnecessary if the Appellant was Igolo’s natural son. The evidence on this issue was much as it is in many custom cases. But there was sufficient evidence upon which to base the findings and to prevent this court from interfering. This appeal point does not succeed.

In relation to the findings as to chieftainship, Mr Nori puts his case on the basis that here there was a trespass by the Local Court and CLAC into executive matter of the appointments of Chiefs which are outside their judicial province. A similar submission was made in High Court Customary Land Appeal Case No.4 of 1982 Kalavarisi v. Pitakoe and another. (Judgment given 26 July 1982) and rejected on the basis that, where a question of whether a man is or is not a chief is a factor in the outcome of a customary land case , it was open to the courts to consider whether or not the person concerned is validly appointed in custom. This court said at page 4: -

“The CLAC examined the evidence before them as to the various customary meetings and decided that they accepted that the Respondents had been validly appointed. That is a proper Judicial function and one courts perform in relation to make executive appointments.”

Counsel seeks to distinguish that case on the basis that there the court found that a meeting had been held and an appointment made whereas here the court were rejecting a claimed appointment. I do not accept that the cases can be co distinguished. In this case as in the CLAC 4/82 the claim that a party was a chief was an important factor in deciding who should control the disputed land. The Appellant in this case claimed to be the Chief of the land in dispute; the Local Court so found but the CLAC rejected the claim. They were bound to consider the matter and reach a conclusion on it. The evidence which the CLAC accepted was that custom required a formal ceremony for the appointment of a chief and this ceremony had never taken place. In those circumstances they found that there was no chief. On the evidence before them this was an entirely proper finding and, following the CLAC 4/82 within their jurisdiction.

It is said that the Court had gone further and exclude the Appellant from appointment as chief. It does not seem me that they did so: they left it open to the Leanabaku people to choose who they wished by appropriate meeting and ceremony. That, as the CLAC, said, is entirely a matter for the people.

Well argued as they have been, I do not find either appeal point made out. This appeal is dismissed with costs to be taxed.