Pone v Anasia Corporation Ltd [2016] SBCA 15; SICOA-CAC 01 of 2016 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (FAUKONA J)
COURT FILE NUMBER:	CIVIL APPEAL CASE NO. 01 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 129 OF 2009)
DATE OF HEARING:	10 OCTOBER 2016
DATE OF JUDGMENT:	14 OCTOBER 2016
THE COURT:	GOLDSBROUGH P LUNABEK JA YOUNG JA
PARTIES:	JOSIAH PONE AND NICHOLAS MAELANA APPELLANT - V - ANASIA CORPORATION LTD 1st RESPONDENT AND RITETRADE PACIFIC LTD 2nd RESPONDENT
ADVOCATES: APPELLANT: RESPONDENT:	MR RANO. RANO AND COMPANY APPELLANT MR UPWE, BETHEL INTERNATIONAL RESPONDENT
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	ALLOWED
PAGES:	1-6

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against the whole judgment of the High Court dated 20^th January 2016 staying the proceedings awaiting the local court to determine the issue of ownership of certain customary lands at Isabel Province.
   

Background Facts

2. The disputes before the High Court emanated from the effect of logging operations on customary lands. Civil case No. 126 of 2009 and Civil Case 167 of 2009 were consolidated because they dealt with the same issues which derived from the same cause of action on the same customary land.
   
3. The two cases were claims for trespass and damages, issues of development consent, environmental issues and the challenges to the timber right processes and issuant of felling licence over customary land including Hovi Customary land.
   
4. The First Respondent’s company, Anasia Corporation Limited, indulged in forest resources development. It acquired a felling licence No. 010704 to conduct logging operations in a concession area that covered fourdifferent customary lands including Titiligama. These customary lands are located within Gao District in Isabel Province.
   
5. The First Respondent Company, contracted the Second Respondent Company RitetradePacific Limited to conduct logging operations on the concession lands.
   
6. Both Respondent Companies then engaged Solomon Islands Resources Limited to carry out the survey which consisted of mapping the concession areas to where roads should be constructed and where logging should take place.
   
7. From the two claims, it was apparent that both logging companies landed equipment and machineries at the same time on the same spot that is at Tanamee points or coast, within the customary land the subject of this dispute.
   
8. The Appellant then (Claimants) in CC 126 of 2009 represented the Limapogu and Hovi land owning groups, also known as Vihunuvinagi, clan of Gao District, Isabel Province. They also claimed ownership of Rarai customary land located within Titiligama .
   
9. The other claimantin CC 169 of 2009 ( who is not a party to this appeal) claimed as being a member of Tavia tribe of Hovi village of Gao District, he claimed to own Hovi customary land.
   

The High Court Judgment Appealed

10. His Lordship identified the following issues:

“With the competing claims by the claimants in both cases, the question to pose is who really has the right of ownership over Hovi customary land? The second issue concerned the actual locations and boundaries of Hovi customary land, and whether the defendants had trespassed into Hovi customary land or not”.

11. His Lordship considered material evidence relating to ownership of Limapogucustomary land, Hovi customary land and Titiligama customary land. He identified from the evidence that, “the question of ownership of Limapogu land is not an issue since the Respondents felling licence did not cover Limapogu land and they have no intention of entering Limapogu land to carrying out any logging operations therein”.
    
12. As to the ownership of Hovi customary land, his Lordship found that the Appellant and theclaimant in CC169 of 2009 relied on evidence of determination by the local court which was in favour of Mr Patterson Tada. Mr Tada as revealed during the trial is of MariuVihuvunagi clan (otherwise known as Nokremifunei or Mariu eagle). The Judge made reference to local court cases: Civil Case No. 8 of 1964 and Civil Case No. 4 of 1965. He said the substance of the two cases were not clear. He concluded that:“From the revelations, a conclusion can be observed that both cases did not deal with the issue of ownership of land but dealt with criminal activities related to land... It would be difficult to affirm whether Mr Tada was determined to have actually owned Hovi customary land. If determination was such, then record would have revealed evidence related to ownership of Hovi land itself with all documented boundaries... In both cases, the local court said that Tada owned Hovi customary land without any basis in evidence, reasons, documentation of boundaries and locations of the land. In my personal assessment it would be unsafe to rely on the two cases as evidence of determination of ownership of Hovi customary lands”.
    
13. His Lordship then stayed the proceedings awaiting local court determining the case before it and directed Mr Simata a representative of the Tavia tribe to file a referral case before the local court.
    

Grounds of Appeal, Submissions and Considerations

14. This appeal is advanced on four (4) grounds. The first ground of appeal is the main contention of the Appellant. The other grounds deal with related and incidental matters. They will be dealt with in turn.
    

Ground 1

15. The Appellant submitted that His Lordship erred in law and facts in holding that the Native Court Judgment in Civil Case No. 8 of 1964 and Civil Case No. 4 of 1965 are not decisions of ownership. It is said His Lordship has misconceived the effect of these two cases. The Appellant relied on Mateni v Hite [2003] SBHC 144; HCSI – CC155 of 2003 (4 August 2003).
    
16. The Respondent submitted that His Lordship did not commit any error in holding that the Local Court decisions in Civil Case No. 8 of 1964 dated 2^nd November 1964 and Civil case No. 4 of 1965 dated 2^nd April 1965 were not decision of ownership.
    
17. We consider that His Lordship erred in his assessment of the material evidence of ownership relating to Hovi customary land. His Lordship had before him the following material evidence:
    

(1) The two Local Court decisions of 1964 and 1965. There were references made in relation to ownership of Hovi customary land, although the records were not clear whether they were about land ownership or criminal offences involving land as his Lordship found.

(2) However the decision of the Deputy Registrar of Titles dated 26 November 1973 was the main record of evidence of ownership of Hovi customary land.The relevant parts of it are here reproduced:

“None of the evidence submitted by the claimant seriously threatens the validity of the root of title in the original indenture and conveyance in 1925 from Walter Tada- Horara to the Resident Commissioner.

On the contrary it is clear from the Native Court Records that the two Civil Case, No. 8/64 of 2 November 1964 and No. 4/65 of 2 April 1965 have already been decided that Patterson Tada (father of Ernest Huinoidi Tada) held a superior claim to the ownership of the native customary land called Hovi; which land constitutes the parent parcel from which the subject land now known as “Pahiju” (Guandor) L.R 339, was excised and sold to the Resident Commissioner by Patterson Tada’s predecessor, Walter Tada- Horara in 1925.

It seems established local custom in view of evidence submitted at the hearing, that succession to land ownership in this community is clearly, “from Mother to children and not from Father to children.”It is therefore apparent that OliveaMeilau’s Grandfather Mariu, had no right to purport to convey this land to his son ElisonKokou even as an act of revenge for the alleged killing of his family by members of his clan.”

(3) The decision of the Fitupogu House of Chiefs (FHC) dated 15 August 2009.

18. The decision of the FHC 2009 confirmed among other things, ownership ofHovi(Gagada) customary land to the Appellant’s ancestors (original owner). They confirmed their genealogy and boundaries of the customary land as descendants of the original owner ofHovi customary land. His Lordship recognised this in his judgment when he stated (p.4 para. 46-47):
    

“It has now transpired that the Fitupogu House of Chiefs had determined the ownership of Titiligama (Rarai) customary land and Hovi Customary land as owned by Mariu Eagle clan (Nakremifunei) represented by the Claimants in CC No. 126 of 2009 (that is Mr. Pone and Mr. Maelana).

The boundaries of the two customary lands are well defined by the Chiefs in their determination. The same boundaries are presented to this Court.”

19. Thismaterial evidence of proof of ownership of Hovi customary land were before his Lordship. They establish proof of ownership of the land indispute by the Appellants. His Lordship cannot go behind these evidence of proof of ownership. He felt into error not to take them into account as evidence of ownership of Hovi customary land in favour of the Appellantsand the tribe he represented.
    
20. We agree with the principle stated by the High Court in Mateni v Hite [2003] SBHC 1944. That principle also applies in this case in respect to ownership of Hovi customary land.
    

Ground 2

21. This second ground of appeal is not a proper ground of Appeal. It reflected a misapprehension of Counsel on the effect of the agreed bundle of documents tendered in Court pursuant to Rules 12.2 and 12.3 of the Solomon Islands Court (Civil Procedure) Rules 2007. The agreed bundle of documents are tendered in Court as admissible evidence. It is the effect of such agreed bundle of documents that is material. Either they are admitted and not disputed or agreed but subject to cross-examination on the contents of these documents that are in dispute. The submission does not advance this appeal in any way. It is dismissed.
    

Grounds 3 and 4

22. We do not need to consider ground 3. The points intended to be raised here are covered in our considerations in ground 1.
    
23. We do not need to answer to any point of concern in ground 4. Theyare covered in the considerations and views we have expressed in ground 1.
    
24. In the present case, we consider that his Lordship was wrong in staying the proceedings. There was ample and sufficient material evidence of proof of ownership of Hovi customary land by the Appellants that his lordship could satisfy himself with on the balance of probability.
    

25. Accordingly, we allow the appeal.

Conclusion

1. Appeal is allowed.
   
2. The Appellants/Claimants are the owners of the Hovi Customary Land.
   
3. Case is remitted back to the High Court for hearing on trespass and damages.
   
4. Costs of this appeal and costs incurred in the High Court are awarded in favour of the Appellants against the Respondent. Such costs are to be agreed or assessed by the Registrar.
   

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Goldsbrough P

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Lunabek JA

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Young JA