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Tamua v Tuhenua [1991] SBLC 1 (18 March 1991)

SOLOMON ISLANDS

WEST RENNELL LOCAL COURT

BETWEEN:

Joel Tamua
Plaintiff

AND:

Samuel Tuhenua
Defendant

Held at Tupuaki Sub-Station on the 18th day of March 1991.

Statement of Claim: Plaintiff claim the ownership of Tanahu, Bangakea, Teogokava and Naligho land.

Plea: Not Liable

Plaintiff: I need some time to draw up my family tree to attach with my sketch.

Court Adj. to 1.30.

Court Resume.

No objection to court members to sit on this matter.

Facts:

Plaintiff Joel Tamua S.O.B. states.

According to my claim I will begin with Tinopau. Tinopau own Niteni, Mangae and Tangumolu out of these place he made, in Mange he made a Tabu place (place of worship).

Tinopau, Temoa took over, so we were led by the said Temoa. After Temoa came Tamua. Tamua then came to settle in the disputed lands. Tamua came and settle especially in Baigau. He then make garden in the disputed areas. We are 9 generation altogether. Then the Gavaigani lines come in the name of the man who came from the Gavagui line is Tuhenua. Tuhenua was from Baghaihi and not from Mangongo where defendant came from.

Tuhenua and his son Tehaniu took over and own the disputed land. After this two, Samuel call in the present defendant came in.

When Samuel (d) came in and took possession of the said disputed area, he handed over them to the different people altogether, this is why am claiming them back.

The places am claiming is not for where I lived there are just around where I lived. The place where defendant in from have four generation in all the four generation are as follow: Tagei, Gabangu, Nasiu and Temaunganiu. The four generation mention have not live in the places I claim only Samuel (d) himself came and claim the places in dispute. Samuel just came in the disputed area after cyclone came. After this cyclone is over Samuel gave the disputed land to other persons. That is why am claiming them back.

The other reason why am also claiming these lands back is because Samuel had wrote letters to Joel and said he should move out.

End of plaintiff evidence

CXM Defendant.

Q: Are your story a true story or not?

A: What I said are all true.

Q: Tinopau whom you based your story upon originally from here or somewhere else?

A: Tinopau is originally from here he was also popular in the lake area. He also have place at the Lake.

No further questions

CXM Court

Q: After Tuhamua and Tehaniu look after the dispute area why didn't the 9 generation took over?

A: The defendant's generation came and just took over without any reason.

Q: Anything you can further prove that the disputed land really belong to your generation is there any coconut grave or tabu places?

A: Tamua planted coconuts but were cut down. There are also graves there 1st one 1. Paul; 2. Tengaugemugi; 3. Tangei and Michael Tepai.

Q: Out of the graves mention is there any of the grave in the disputed area?

A: The graves were in the place where I settle namely Baigau. They didn't put them in the garden site.

Q: All your generation lived at Baigau or some lived else where in the Island?

A: Some of the graves were at Mangalea, Holi Tonga and Baigau.

Q: Tegaugemugi, whose son is he?

A: There are two Tegaugemugi. The younger's grave was at Baigau. The old one is at Tonga.

Q: Who is the father of the young Tegaugemugi?

A: He is the son to Tamua.

Q: Tamua who is from Baigau is he from the same generation or different?

A: He was from the same generation.

Q: Tamua purposely came to settle at Mangalea or in the disputed area?

A: Tamua resides at Mangalea but he can travel around to visit his brothers and work in the disputed area.

Q: Is there any dispute arise between the 9 generation and the defendant before?

A: There is no dispute. The reason is that nobody from the other land ever came in the dispute arise now only because defendant came in.

Q: Out of the 9 generation can you tell the court what is the position of defendant when looking in the view of your 9 generation?

A: I don't know.

Q: Why did Samuel came in the area without dispute when the other two elders died at the first place?

A: Samuel's people who came in at the first place do not own the place. They just share the area in dispute with my generation.

Q: Who is the brother of the defendant. Tehaniu or who?

A: Tehainiu and Samuel are brothers.

Q: Are you related to defendant in some ways?

A: No.

No further questions.

PW1 Gaeasi Tetua S.O.B. states:

I start my story with the father of the plaintiff and defendant. I begin with the father of Samuel. Samuel stays between two persons. The real father of Samuel is Tangabae. The mother of Samuel took Samuel and they came here and remarried to another man. Her new husband was Tangabae both husbands of Samuel's mother were from Kanava. Samuel is not a real son of Tangabae. He was only adopted by him.

Now I came to Joel's side. Joel is the son of Tinopau. The father of Joel is the true land owner inregards to the disputed land. When the son took over he follow the father's habit or ways. Joel is now selected as a chief in his area. He is also the land owner where we lived. That is all from Joel.

This district namely TNT is like this. The first people who lived here are called Tehakatuigoto. Tehakaitu'uigoto is a tribe who live in this area.

Sometimes before, people killed each other also sickness killed people and this tribe was lost or finish in existence altogether. There was nobody left Tinopau came and took control of this area. The two places where Tinopau biggest in control with are; Niteni and Tangomolu these are the biggest area compare to others. These two big places was the place where Tinopau lived but the whole place was owned by him. From Tinopau to now we are in the 8th generation.

From the 8th generation I go to Temoa, Temoa married and have a big family. From there we separated. Temoa when started to share the land. The first part was given to Tebaipolo. Another block of land was given to Tagei. Another place was given to his another son Tamua. The area given to Tamua was named Baigau. The whole of this land belongs to Tamua himself. The four areas in dispute belongs to Tamua. His father gave it to him. When Tamua died his son Temoa took over. Temoa died. Tengangemugi took over. Tengangemugi died Tesua took over. After Tesua died Sau'uhi took over. After the death of Sauuhi, Tinopau who is the father of Joel took over. After the death of Tinopau Joel took over. Joel is now the plaintiff and in court. If Joel died then I Tesua will take over. I'm the son of Joel.

Tuhenua who now hold the disputed area now come from Patonu. Tehunua died his son Basibasi took over. Basibasi died nobody to take his place as he didn't have any son to take over.

However because Basibasi didn't have any son Temaunganiu took over instead. Temaunganiu was not from here.

After the death of Temaunganiu, Panio took over. After the death of Panio then came Samuel. Who is the defendant. Samuel is now too old and still don't have any son. So nobody will take over. Geologically we are now 70.

Thats all I can say.

Court: Case adjourned to 8 o'clock tomorrow 19/3/91.

Court resume 19/3/91

Defendant: I want to make an application to the court so that my son who is in court now may stand on my behalf the reasons are as follows:

(1) I'm too old to understand what the court is doing.
(2) I have a problem with my ear can't hear properly (deaf).
(3) Although Pidgin language is translated to me I can't understand.

Court retire 5 minutes to make ruling on the application.

RULING

Upon careful studying of the application of the defendant the court has accepted the reasons started above for defendant to hand over case to his son the court has also witness in court that the defendant is in difficulty in understanding what the court want from him when asking question and so forth.

CXM Defendant

Q: You said you have 8th generation where was 8th generation came from?

A: The 8 generation are the generation of the disputed area namely Tanahu, Bangakea, Teogokova and Naligho.

Q: The 8 generation you talked about who make this place Teogokave to be a place for human being to reside on.

A: The area originally cleared by Tamua.

Q: If Tamua own this place, then who own this Atinga?

A: The Atinga you asking about belongs to Tamua.

Q: Why didn't your 9 generation went to fight the only one man of our generation at Teogokava?

A: No.

Q: Out of the four disputed area. Have you harvested any food crops and took it to Baigau to make a special feast?

A: During the time of Tinopau and Sauuhi, yes but now No.

Q: Am I not a son of Tinopau?

A: You are not a true son of Tinopau. Your father is Tangahau.

Q: Have you any grave at Teogokava?

A: No.

Q: Who is the first people to come into the TNT District you or the plaintiff side or defendant?

A: Plaintiff side.

CXM Court

Q: There is different in number of generation present in court why is that?

A: From Tamua to Tinopau 17. The 17 cover whole generation.

Q: Why is that Joel said in his evidence 17?

A: It is so because I counted from the last born.

Q: Is it our custom to adopt any child?

A: Yes.

Q: If you are the first people to come here where is another party come from?

A: No.

No further questions.

Close of Plaintiffs case.

Eni Taki S.O.B. states:

I'm allowed to take this cause to the end however I will first of all tell my story of how we come to settle on the disputed lands.

We started from Nasiu. He is from Patonu. This is the man I start with. And he is the rightful owner of the disputed area. That is why we claim it. When Nasiu was killed he already had a son called Tuhenua. The reason why we still claiming or entitle for the disputed land is because Tuhenua is the one who make everything in the disputed area.

Tuhenu was still strong, everything he made was still remain when he have a child. When Tegainiu come up he too made a lot of things in Teogokava. The first thing he made is a custom house called Hage'eha. The Hage'eha is called a Hakabagu. Also this man Tegainiu also made a feast of Pana. After this feast Tegainiu and his father are planning to make a custom dance. Tegainiu had a child called Tepai. After the death of Tepai the whole place was a abandoned. I now realise that the area is mine so I moved in. The reason I move in is because am the son of Teogokave brother of Tehenua. The other reason too is because only myself left all the other old men had died. I stayed in this area and make garden and only myself remain there. I'm married and wants a child very much but I didn't have any. So I adopted a boy as my son. My adopted son now have another son. My knowing of this place where am now leaving my genealogy is 7th. The genealogy is counted from Nasiu, Tuhenua, Tegainiu, Tepai, Samuel, Taunai and Tohuika.

That is the end of my story.

CXM Plaintiff

Q: You said that you are the first people to come in at Teogokave and Teogokave is in our area?

A: Tuhenua came in this place and nobody ever disturbs him.

Q: Is Teogokave had been given or taken by force?

A: We didn't ask any body for permission to come in. We came in because its our place.

Q: Whose land was the custom house built on?

A: The house was built on my land.

Q: Where is Tuhenua come from?

A: Tuhenua is Nasiu's son he is from Patonu.

CXM Court

Q: Tuhenua and Tangabae were brothers, are they the sons of Nasiu?

A: Yes.

Q: Are you from Patonu or different place?

A: Since my grands are from Patonu then I'm from Patonu.

Q: When this big happening such as dancing happened in Teogokave. Who is doing all these things only yourself or any other people outside took part?

A: People from the southern part of the island join in.

Q: From Nasia to Tepai between this two people is there a dispute ever happened?

A: No.

Q: Are you using these area or not?

A: Yes.

Q: After the death of Tepai how long the area been abandoned?

A: 3 months.

Q: With the 3 months the area was abandoned did Samuel's section came in or not yet?

A: No.

Q: Did the plaintiffs section ever asked you permission for gardening before or not?

A: No.

No further questions

DW 1 David Teosi S.O.B. states:

The main topic I will cover in my story is Teogaokava village also I would talk about Tuhenua and his wife Temako. But mainly I will talk about Nasiu.

Nasiu came to Patonu. He had a son called Tuhenua. Tuhenua had a son called Tegainiu. Tegainiu had a son called Tepai, Tepai died without a son. Samuel defendant took over Samuel had a son Taunai, Taunai had a son called Tuhaika. That the end of genealogy.

Thats all I can say.

CXM Plaintiff

Q: Where did Nasiu come from?

A: Patonu.

Q: Did Samuel come from Patonu?

A: No.

CXM Court.

Q: Are Samuel and Tepai are brothers?

A: Cousin brothers.

Q: Where did you base your evidence relating the 7 genealogy?

A: I don't know.

No further questions

Case Close.

COURT RETIRE FOR JUDGMENT. JUDGMENT DELIVERED AT 3.30 P.M. 19/3/91.

JUDGEMENT

This is a civil case between Joel Tamua plaintiff and Samuel Tuhenua disputing the ownership of a customary land called 1. Tanahu, 2. Bangakea, 3. Teogokava and Naligho.

In accordance with section 8D (1)(d) of the Local Court (Amendment) Act 1985, the dispute had been refer to the chiefs but the chiefs had failed to reach any settlement due to lack of co-operation from both parties this case therefore had been handed over to the Local Court to decide upon. The chiefs had certify the unaccepted settlement form as required under S.8D(1) on the 28th January 1991.

Joel Tamua who is the plaintiff prefer to pursue this matter and had filed the case in the Local Court, the Local Court accepted the case it proceed.

The plaintiff's sworn evidence presented to court claim that he is the first people gealonogical came to settle in the disputed lands. His people came and make gardens in the disputed lands. He continue to say that he had 9 generation altogether since they moved in until now. He continue to say that defendant Samuel had just arrived and take possession of the lands.

He claimed that defendant had only four generation and the four generation have not lived in the disputed lands. He said that defendant only come into the area after a cyclone.

The PW1 in his sworn evidence supported the evidence of the plaintiff. He had gave evidence of how Samuel came to live in the disputed lands. He then continue to say that joel is the true land owner inregards to the land in dispute. He then went on to explain how and who this land was handed to after the elders died. He claimed that Samuel took over the land from Panio and Panio was originally from a different place.

Defendant gave evidence on with beginning his evidence from his ancestor Nasiu. He said that Nasiu is from Patonu. He claimed that he is the rightful owner of the disputed land.

The defendant had named all his ancestors and how they come to own the land he had gave evidence what was happening in the disputed land before he and he had explain on how he had moved in the land.

DW1 in his sworn evidence does not contribute much in to the case. However he had gave evidence only on the genealogical table. He had mention names of the past people who settle in the land until now.

Before the Court come to the final decision as to who is the rightful owner of the dispute land it must remind itself that the burden of proof lies on the plaintiff. The plaintiff must prove his case on the balance of probabilities. The court has listen to the evidence from both parties and found out that the plaintiff's story is contradicted with the custom of the Island and its history. The 9 generation which plaintiff talked about have never disputed the land before. The plaintiff should rightfully be from Magalea. Only Joel is disputing this land. No one from Joel's generation ever come to dispute this land before.

The defendant had presented his evidence there are facts to support his evidence. He had mention what was happened in the disputed land before.

They had custom house called Hage'eha (custom house). The Court had also looked at the witnesses' evidences and found be corroborated with defendant's in terms of genealogy. Because of the above evidence the Court had find that the plaintiff had failed to prove his case on the balance of probability and awarded ownership of the land.

DECISION

The Court had award ownership of the disputed lands namely, Tanahu, Bangakea, Teogokava and Naligho to Defendant Samuel.
Right of Appeal Explained

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