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Gorosi v Goli [2014] SBHC 18; HCSI-CC 438 of 2011 (9 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J)

Civil Case No. 438 of 2011

BETWEEN:

JOHN ALO GOROSI, CLARE POKI, CATHERINE PUKUSI and ETHEL GOROSI
Claimant

AND:

ALLAN GOLI
Defendant.

Dates of Hearing: 24th February, 2014 and 19th March 2014.
Date of Decision: 9th April 2014.

Mr S. Balea for the Claimant.
M. S. Tabo for the Defendant.

DECISION.

Faukona J: This application was filed pursuant to Rule 15.9.2 of the Rules. The application seeks four declaratory orders. I consider it not urgently necessary to paraphrase the orders sought.

2. The dispute emerged concerning Hagiama island. The Claimants are carrying out some development work on the islands. That did not absorbed well by the Defendant so he issued a stop work notice to the Claimants. Since then work had been ceased and parties now engaged in litigation as to the ownership of the island.

3. The Claimants claim ownership of the island together with four other lands namely Leo, Ngalimadali, Farapou and Tanadavi located on the mainland right opposite of the island. They had acquired their rights of ownership as admonished by way of custom purchase namely huihui. Huihui is a purchase transaction recognised in Gela's custom whereby the children give custom valuables and food staff to their father or mother whoever owns the land so that right of ownership is transferred to the children.

4. To substantiate their claim, the Claimants rely on 3 sources of acquiring rights. Firstly, through performance of huihui to their father to acquire right of ownership. Attach to sworn statement of Clara Poki is a list of food staff, household items, custom money which totalled up to $5,479.12. There were witnesses to the occasion including Head Chief W. Nodo and Fr. Gilbert Matekolo.

5. Secondly, the right of ownership by their father Dudley Gorosi was affirmed by the decision of local Court in case No. 63 of 1966 approved by District Commissioner on 30/1/1968. The decision stated that the island of Hagiama with some piece of lands on the mainland at Koilavala village belongs to Dudley Gorosi. A copy of the Court record book was annexed to sworn statement of Clare Poki as Exh. "CPI". The date of decision was 30th January 1968.

6. Thirdly, there is reference to the island and four other lands were out rightly purchased by Tabukoru, Alo's father from Hogokama tribe. This traditional outright purchase transaction was referred to as huihui balamate in Gela land tenure system.

7. In 1995, Gorosi transferred his patrilineal rights to the Claimants by traditional system for disposition of right called huihui.

8. The Claimants maintain that all traditional requirements to perform a huihui had been fully complied with and that their rights should be recognized as bona fide purchase for value.

9. The Defendant disputed the Claimant's claim because of traditional defects and non-compliance, which render their claim invalid. The Defendant relies on sworn statement from a number of persons including one from Visivisi the son of Catherine, the sister of Gorosi 2 (the father of the Claimants). The Defendant denies there being a huihui conducted (custom purchase). But there was a vanavana ceremony conducted which attended by few elders who were invited to attend. There was no public notice displayed for three months of such ceremony.

10. On the issue of patrilineal heritage, the Defendant denies that this is a traditional practice in Gela. Land rights descend through matrilineal lineage and cannot be diverted to patrilineal descendant.

11. In regards to the Court case in 1968, the Defendant denies the involvement of his clan. The case concern two different sub-clans, and that the Gorosi was merely a spokesperson on behalf of Hogokiki boromakabo sub clan and not representing himself or his family.

Sale of customary land in custom:

12. Sale of customary land is a common phenomenon in Solomon Islands. It is a common knowledge and occurrence around Honiara city, on Guadalcanal and Gela as well. Such sale transactions comprised of valuables given, followed by a custom ceremony. On Guadalcanal, it is called "chupu". In Gela it is called "huihui". This transaction involves provision of food staff, goods, domestic items and custom shell money paid to the landowner (s). Once that has been performed, it completes the recognition and acceptance of the transaction by the members of the tribe and cannot be undone.

13. The second aspect to the huihui is the public significant attach to it. In Gela because the ceremony will be witnessed by many people prior notice to public must be displayed (in this case 3 months). This is to convey to members of the tribe about the ceremony, and to take note so that they are aware of the land dealing.

14. The third aspect, perhaps the most significant is that the person or persons entitled to receive the huihui must be a recognized owner of the land. If there is no question about his right of ownership then the huihui transaction will proceed in harmony.

15. This boils down to the issue whether the Claimants have established their right of ownership in law over the island. The Claimants rely on the Local Court case No. 63 of 1966 which was heard on 30th January 1968. The parties to the case were William Sebo against Dudley Gorosi, the father of Claimants. Sworn statement as to the conduct of the case and its effect was deposed by Jonah Soro and was filed on 31st October, 2011. Notice to cross-examine was served on Mr. Gorosi who appeared in Court personally and was cross examined.

16. The Court record (an extract) annexed to sworn statement of Clare Poki filed on 6th March, 2013, clearly stated that the island of Hagiama plus four piece of land at koilavala village belongs to Dudley Gorosi. The Defendant despite that opposes any such determination in the personal name of Gorosi or his family. The lands were given to Gorosi as a trust on behalf of his tribe. Furthermore, the Defendant argues that his clan is not party to that litigation therefore not bound by that decision.

17. On this issue alone, I am satisfied on the balance of probability that Dudley Gorosi had achieved a decision in his favour in the Local Court on 30th January, 1968. The Court record clearly stated that those lands belong to personal name of Gorosi. It did not state that those lands were given to Gorosi on behalf of his tribe. If he was merely a spokesman the decision would have stated accurately that the land belong to certain tribe or clan or sub clan which Gorosi represented. In the absence of such those lands are definitely own by Gorosi with exclusion of all others.

18. Since evidence has proved and identified Gorosi as the owner of the island, plus four lands on the main land, he has the absolute right to dispose them at will. He has the capacity to dispose of the lands by way of sale. Whether by way of absolute sale or by huihui is discretion left upon him alone? And not upon his sub-clan, clan or tribe.

19. I am convinced by the evidence of the Local Court decision as sufficient, hence, not really necessary to venture into determining the issue of patrilineal heritage as alternative which the Claimants gain their rights of ownership from.

20. Mr Gorosi decided to accept a huihui, purchases in Gela custom from his children, so that the right to those lands given by the Local Court is transferred to his children, the Claimants. The huihui transaction was opposed by the Defendant because of non-compliance with other traditional elements, which attached to it. This is a contended issue. The question is, is this Court has the right to determine the traditional transaction of huihui and whether it complies with custom of Gela or not. I must say no. Whether there is a breach of custom right is a matter for the parties but the transaction cannot be denied – see Bopi V Lagi[1].

21. There is argument by the Defendant that his sub-clan was not a party to the Local Court case, hence not bound by it. However there is evidence to the contrary that, the Defendant's father William Vetena and grandfather Kiukilu were witnesses for Mr Gorosi in the Local Court. Since there was no minute of the court proceedings it is difficult to verify what Vetena and Kiukilu actually said in evidence. Whether they supported Mr Gorosi owning the island and four other lands. In the absence of no minutes of record it would be really difficult to decide. However, there must be evidence to establish that the two witnesses did not support Gorosi's personal claim of ownership. If they did so, then the Defendant's right to come to court is barred by the principle of res-judicata. If by evidence, they include themselves with Gorosi as owners in custom then perhaps the Defendant might have a right to be heard. It is an issue requiring administrative approach. I do not think I will determine that issue now.

22. In conclusion, at the time of the huihui transaction Gorosi had a decision of the Local Court in his favour. It was an absolute right of ownership. There was no appeal from the aggrieved party. The Defendant comes to court with nothing. His right of ownership is a mere assertion with no evidence to support. With a valid ownership and by virtue of the "huihui" the Claimants become bona fide purchases for value, which the law recognised.

Orders:

1. Declaratory order sought by relief (1) granted.

2. Declaratory order sought by relief (2) granted.

3. Refuse to grant orders 3 and declaration in relief 4 due to the absence of minutes of Local Court proceedings on 30th January 1968, to verify the actual evidence of the Defendant's father and grandfather in that Court.

4. Cost of this case is paid by the Defendant to the Claimants.

The Court.

^[1] [1993] SBHC 41; HC – CC 207 of 1991 [13 August 1993).