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Daokalia v Funu [2021] SBLC 9; Land Case 18 of 2019 (28 April 2021)

IN THE MALAITA DISTRICT LOCAL COURT
(SOLOMON ISLANDS)
Civil jurisdiction
Land Case No. 18 of 2019

BETWEEN: PAUL DAOKALIA and HENRY FALEUSIA
Representing descendants of Suaboso of Funibua tribe
Plaintiff

AND: AUGUSTINE FUNU and BANARBAS FALEKWAI
Representing descendants of Suabulu claiming as owners of O’oro-Funibua land
Defendant

Date of Hearing: 29, 30, 31 March, 2021
Date of Site survey: 21 April 2021
Date of Judgement: 28 April 2021

Paul Daokalia in person & others for the Plaintiff
Augustine Funu in person & others for the Defendant

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JUDGEMENT

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The Court: This case is between Paul Daokalia and others claiming as descendants of Suaboso and as owners of Funibua land (as Plaintiff) and Augustine Funu and others claiming as descendants of Suabulu and owners of O’oro Funibua land (as Defendant).

2. By order perfected and signed 19 September 2019 in Civil Case No. 43 of 2019 (CC 43/19), the High Court referred the issue of ownership of O’oro-Funibua Land to relevant West Kwara’ae House of Chiefs for conclusive determination of the following questions:
   
   1. Whether O’oro-Funibua is just a single customary land?
   2. If just a single customary land, what are the recognised customary boundaries of the land?
   100. If (a) above is answered ‘NO’, what is the boundary separating O’oro from Funibua?
   4. If (a) is answered ‘YES’, which sub-tribe (O’oro or Funibua) has primary and overall customary authority over the land?
      

And the House of Chiefs were to furnish its findings to the High Court within 30 days of determination.

3. On 15 November 2019, a West Kwara’ae Joint Panel of Chiefs published their answers to the questions in their determination. Not satisfied with the answers, Plaintiff referred their determination to this court for reconsideration.
   
4. Meanwhile, the High Court also issued another order on 3^rd July 2020 staying the proceeding in CC 43/19 pending outcome of the proceeding now before this court. Therefore, this court is satisfied it has jurisdiction to hear and determine issues before it with confidence.
   

Agreed Facts

5. It is not in dispute that the ancestors of both parties, Suaboso (Plaintiff) and Suabulu (Defendant) were biological brothers, the true sons of FAUOMEA and that they settled with their father at GWAUNAKWAI in East Kwara’ae prior to migrating to Funibua/O’oro.
   
6. It is also not in dispute that both brothers have one common worship, one common sacrifice, one common feast (MAOMA), and one common devil or spirit (“spirit of death” or “spirit of war” whom is their ancestor being worshipped as the “spirit god”).
   
7. It is also not in dispute that the land in dispute claimed by Plaintiff as Funibua is the same land claimed as O’oro by Defendant.
   

Facts in dispute

8. The main fact in dispute is that the land is Funibua and first discovered by Suaboso and that O’oro is just a settlement tabu site within Funibua land (claim of Plaintiff) and is not O’oro land as first discovered by Suabulu with Funibua as just a settlement tabu site within O’oro land (claim of Defendant).
   

The issues

9. As a matter of fact, during preliminary inquiry and full custom hearing the same questions that come to the mind of the High Court (set out in paragraph [2] above) also arise before this court.
   
10. Thus, as a court vested with exclusive jurisdiction over questions of custom, this court will rule on the questions referred by the High Court based on its independent findings in custom on the claims of the parties and the evidence seen on site survey. Before going into that, a brief summary on the claims of the parties.
    

Plaintiff’s claim

11. Briefly, Plaintiff’s case is that Suaboso (elder brother/son) and Suabulu (younger brother/son), two brothers and sons of Fauomea settled with their father in Gwaunakwai. Suaboso then used to hunt for opossums when his Ainigao spear eventually got stuck in/to the ground at Funibua during one of his hunting expeditions. After attempts to remove his spear from the ground failed, it was revealed to him by the spirits that he was to settle there with his spear. This was his destiny as decided by his ancestors who held the spear to the ground.
    
12. Thus, Suaboso left his father at home in Gwaunakwai and migrated to the land with his own share of powers and possessions and established his site where the spear got stuck to the ground, and settled there. He named his site Funibua and from which his line/clan and land were also named.
    
13. Having established and settled at Funibua, Suaboso invited his younger brother, Suabulu whom had come and settled at Matanaitala land with his in-laws to come and settle with him at Funibua. O’oro then was Suabulu’s settlement site whereas both brothers offered one common prayer and sacrifice to their ancestors at Funibua Principal site.
    

Defendant’s Claim

14. Briefly, Defendant’s claim is that his ancestor, Suabulu (younger son) was the first to leave Gwaunakwai. Reason for his departure was due to an incident where a crocodile brought by a group as form of pig for sacrifice deliberately to spoil a significant feast at Gwaunakwai got loose and ate his son. Aggrieved, he left Gwaunakwai with his wife Saorai to settle with his in-law Kelngan at Matanaitala land.
    
15. From Matanaitala land, Suabulu moved and settled at O’oro tabu site in O’oro Funibua land. Two generations passed and Suaboso came and sought permission from him to hunt for opossums. He was given permission and established a temporary shelter in the land. During one of his opossum hunts his Ainigao spear got stuck to the ground. Word was then sent to Suabulu after attempts to remove the spear failed. Suabulu attended to the scene and told his elder brother Suaboso that the spirits of their ancestors wish that he settle with him in the land. He called the land O’oro Funibua land.
    

Court’s findings in Custom (Custom evidence seen on site visit).

16. On Plaintiff’s claim: Plaintiff’s claim is that Suaboso (the elder brother) was the first discoverer/first settler on the land. His Principal discovery site was Funibua Principal site. The land is Funibua land or land owned by Funibua tribe. Funibua tribe consists of Suaboso’s descendants and Suabulu’s descendants inclusive because Suaboso invited his younger brother Suabulu to settle with him and they share a common prayer and sacrifice, a common feast and worship one common ancestor spirit at Funibua.
    
17. Through the site visit, the court confirms on the custom evidence available and seen that Funibua is the Principal (discovery) tabu site within the land.
    
18. On Defendant’s claim: Defendant’s claim is that Suabulu was first to discover/settle or establish at O’oro and later gave permission for Suaboso to settle in the land. His main tabu sites were O’oro occupied by Suabulu and Radekwai, his tabu site for worship.
    
19. During the site visit, Defendant objected anyone from entering into O’oro tabu site, and he mentioned that it is just a settlement site. He also did not insist on surveying Radekwai tabu site.
    

Other contending issues

20. There are other evidence both written and oral, including statutory declarations, Timber Rights decisions, and witness statements among others. Although these evidences are of relevance to the claims by both parties, this court is satisfied that the material (custom) evidence seen on site survey adequately determines the question of first discovery (or first arrival/first establishment) and authority, hence sufficient to address the questions raised by the High Court.
    

Concluding remarks

21. According to Malaita custom, only the discoverer/first settler can establish a Principal tabu site in the land he discovered or was the first to occupy. In this context, a Principal tabu site is the site first established on the land by the discoverer/first settler upon first discovery/first arrival or first establishment. This is where he settled and worships his ancestors/ancestral gods. Upon his death, his body is laid in this site and then worshipped by his successors or succeeding generations until the advent of Christianity.
    
22. Furthermore, in Malaitan context, the discoverer or first settler is the overall authority in the land he first discovered or was the first to occupy who is revered (worshipped) and who exercises overall authority over the land, its people and resources.
    
23. Within the Funibua Principal site, there is also a site reserved for dancing (MAO) which the Defendant confirms that his tribal descendants of Suabulu also share the dancing with Suaboso’s descendants.
    
24. On the basis of the custom evidence seen at Funibua Principal tabu site and confirmed by the parties, this court determines that Suaboso is the discoverer of Funibua customary land. His brother Suabulu came and settled with him at the O’oro site within Funibua customary land.
    
25. On the contrary, the fact that the Defendant objected the survey of O’oro tabu site did not enhance his claim that O’oro is the Principal tabu site and the land is O’oro customary land. Notwithstanding that, according to Malaita custom, no two Principal (discovery) tabu sites can ever exist within the same customary land for the reasons that: (1) a tribe cannot have and worship two discoverers or spirits of war for the same discovered land; and (2) no two spirit of war (Akalonimae) from the same tribe or two different tribes can be worshipped in the same discovered land.
    
26. Similarly, since the court has established on the material evidence before it on site survey that Funibua is the Principal discovery site, O’oro cannot be the Principal discovery site within Funibua customary land at the same time. This will be in serious conflict with custom.
    
27. As this court is a court vested with exclusive jurisdiction and powers over questions of custom, its findings is particularly based on the custom evidence seen on site survey. Accordingly, its findings on the issues and the questions as referred by the High Court are as follows:
    

Findings of this Court

28. On the questions referred by High Court:
    

a) Whether O’oro-Funibua is just a single customary land?

O’oro- Funibua is just a single customary land. It is the same land claimed as Funibua by Plaintiff and as O’oro by Defendant.

b) If just a single customary land, what are the recognised customary boundaries of the land?

The recognised customary boundaries are as follows:

Eastern border shared with Ferafafo land and Faibebea land – the boundary follows U’uru stream to Lalitaba’a to Aibulu stream to Aibulu Dau.

Northern border shared with Matanaitala land, Aekwata land, Ore Ore land, and Aebusu land – the boundary follows Aibulu Dau to Faikukuru stream, to Banio river to mouth of the river at coast.

Southern Border shared with Faubako land – the boundary follows Mala’a stream to Ngalitataleo stream, to Ado Arakai, to Kwaihata stream thence to U’uru stream.

Western border shared with Onebala land – the boundary follows from Banio River (mouth), follows the coast to Dala River (mouth), follows the river to meet Mala’a stream

c) If (a) above is answered ‘NO’, what is the boundary separating O’oro from Funibua?

This Question/issue is now settled by findings to question in (a). There are no two separate distinct lands but only one and the same land mass.

d) If (a) is answered ‘YES’, which sub-tribe (O’oro or Funibua) has primary and overall customary authority over the land?

Both sub-tribes have equal rights over the land BUT overall customary authority vests on the Funibua (Suaboso) sub-tribe.

Independent Ruling of the Court

1. Funibua is original customary name for the customary land.
2. O’oro is a tambu site within Funibua land.
3. Both Suaboso and Suabulu have equal rights since they are two brothers, the sons of Fauomea of Gwaunakwai.
4. Paul Daokalia and his Suaboso’s lineage have the overall authority over Funibua customary land.
   

Right of Appeal Explained

Right of appeal is within 90 days as of the date of judgement.

THE COURT

Justice Nelson Nee Riria (Acting Vice President)

Justice Eddie Wasi (Member)

Justice Peter Timme Aranga (Member)

Officer Hillary D. Fioru (Clerk)