Pwate v Konihaka [1996] SBHC 60; HC-CC 116 of 1992 (31 October 1996)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 116 of 1992

lign="cent"center">ANDREW PWATE

v

JOE KONIHAKp; OTRS

e: Palmer lmer J

Hearing: 24 September, 1996 - Judgment: 31 October, 1996

Counsel: L. Kwaiga for the Plaintiff - A. Nor the Defendant

PALMER J.:

The Plaintiff claims that he is the owner of customary land on Ugi Island known as Makia Land. He bases his claim of ownership on a Native Court decision, case no. LC/20 of 1971 between Clement Maewawa and Joe Konihaka (one of the Defendants named in this case), and in which judgment went in favour of Clement Maewawa, and was confirmed on appeal to the High Court in its decree dated 20 December, 1972. The current plaintiff is the grand-son of Clement Maewawa, and is asserting his rights in succession to Clement Maewawa. Those rights of succession are not disputed, as it had been clearly established by the Native Court and confirmed on appeal to the High Court, inter alia, that Clement Maewawa was the sole beneficial owner of the land known as Makia, on Ugi Island.

The Plaintiff's claim is that the Defendant had trespassed onto his land without his permission, in particular, contrary to the High Court Decree dated 20th December, 1972, and wrongfully planted new coconut trees and carried out other development on the said land. In addition, he claims that Lonsdale Pua (one of the defendants) had been running a bakery since 1991, and Andrew Wae a retail store, also on the same land. He claims accordingly damages for trespass, and orders to evict the defendants from the said land, and from re-entering it or in any way developing it without the Plaintiff's Permission.

The tort of trespass to land is constituted by unjustifiable interference with the possession of land (see Winfield and Jolowicz on Tort, 9th Edition, page 306). In this case, the issue of possession whether in law or in fact, or immediate right to possession, is not in dispute. Those issues had already been determined by the Native Court in 1971 and confirmed on Appeal to the High Court.

Rather, what is in issue is the boundary or area of Makia Land, as dealt with by the Native Court and the High Court in 1971 and 1972. The Plaintiff relies heavily on the sketch plan which had been submitted to the Native Court in 1971 and the High Court in 1972, and that it contains therein the true and correct boundary or area of Makia Land. A copy of the said plan has been submitted to this court and marked "Exhibit P2". According to the Plaintiff's description of the boundary of Makia Land, it stretches from Tawaiapa at one end to Ano Ano Pua, to Su’unitete, to Marea Beach and back along the coast line to Tawaiapa. The whole area described above is shown on the plan. He claims that the new developments and activities of the defendants had been conducted within the said boundary.

The defendants on the other hand, do not deny that new coconut trees and other developments had been carried on, including the bakery and retail store. What they dispute and deny in their defence is that those activities had been undertaken within the disputed area of Makia Land. They dispute the claim of the plaintiff, as to his identification of what the true and correct boundary, of the area of land that was in dispute, between the parties in the Native Court and the High Court, in 1971-1972.

The crucial task of this court therefore, is to try and ascertain from the court judgments and record of proceedings of the Native Court and the High Court, the boundary of the area of land that was in dispute, and referred to in the Decree on Appeal, as Makia Land. I bear in mind that the burden of proof lies with the Plaintiff to show on the balance of probabilities that he has possession of the whole of the area of Makia Land by virtue of the Court judgments in the Native Court and the High Court. This brings me next to consider the evidence relied on in this case.

The first submission of the Plaintiff relates to the sketch plan drawn by Mr. Konihaka for the Native Court and the High Court in 1971. It is submitted by learned Counsel for the Plaintiff that the sketch plan showed very clearly what the correct boundary of Makia Land was and that this was accepted by Clement Maewawa. A copy of the said sketch plan has been submitted to this court and its existence is not in dispute. What is in dispute is the boundary relied on by the Plaintiff in the said plan.

The second submission relied on by the Plaintiff relates to the description in the Native Court by Clement Maewawa as to the boundaries of the Makia Land. The first statement relied on at page 2 of the record of proceedings of the Native Court, dated 3 April, 1971, reads as follows:

"My grand-father Maewawa was the first eater of any first harvest in the land like fruit trees and in the gardens as well. He had a secret place for worshipping which is called Anoanopua there he worshipped the head of his devils his name Wapunamae."

The Plaintiff relies on the above statement to identify the eastern end boundary of Makia land in the bush. This is the place called Anoanopua. He submits that this corresponded to the boundary drawn on the sketch plan by Mr. Konihaka, as stretching from the beach at Tawaiapa to Anoanopua in the bush. The defendants however. do not dispute that boundary.

The second statement relied on by the Plaintiff in the Court transcript is the very next sentence on the same page as follows:

"Another place he used to worship is at the bottom of a big tree at front of the village on the beach where he worshipped his shark."

The village referred to most likely is Makia Village as marked on the plan. The Plaintiff submits that the second place of worship of Clement Maewawa's grand-father is located right next to Mr. Konihaka's plantation, and then goes on to state that that plantation was one of the subjects in dispute between the parties. It appears that the significance sought to be raised by the Plaintiff in respect of that spot is to show that by virtue of the fact that Mr. Konihaka's plantation is located right next to that sacred place, that it provides proof that the land on which the plantation is located could not have been under the control of Mr. Konihaka. This raises an interesting and relevant issue as to whether the area of land on which Mr. Konihaka's plantation is located, is also in dispute as well as the plantation. I will say more on this later

The boundary claimed by the Defendants on the other hand, does not include the plantation of Mr. Konihaka. This is where the claims of the parties diverge. The Plaintiff says that the boundary of Makia land as dealt with by the Native Court and the High Court stretched all the way from Tawaiapa along the beach or coastline through the above sacred place in front of Makia Village through or past Mr. Konihaka's plantation to Marea. The plantation of Mr. Konihaka therefore would have been inside the land claimed by the Plaintiff to be in dispute. The Defendants say that it stops at the spot marked on the plan in front of Makia Village. This raises the question as to what evidence is available to assist the court in determining which claim is correct.

I have mentioned above that an important issue to clarify relates to the land on which Mr. Konihaka's plantation is located; whether this, together with the plantation, was also part of the land in dispute between the parties, as alleged by the Plaintiff. This issue is important to determine first because in the absence of further evidence as to the boundary along that coastline, it would assist to answer the issue as to whether the boundary stops in front of Makia Village or it goes beyond to Marea.

Apart from the submission made by learned Counsel for the Plaintiff that Mr. Konihaka's plantation was one of the subjects in dispute, no further evidence was referred to in support. I have nevertheless perused the record of proceedings in the Native Court and the High Court (which I take judicial notice of), on this point, but have not been satisfied to the required standard that that submission holds water. Rather, the evidence in the Court transcripts point against that suggestion.

The first piece of relevant evidence in the Court transcripts can be found in the High Court transcripts of 19 December, 1972, at page (3), second paragraph, where the Appellant states:

"I now live on the piece of land hatched on my plan but I was born on the land which is now in dispute. " (emphasis added)

If we look at the plan, there is a clear area to the lower right, which is hatched. This is also the same area referred to above by the Plaintiff, and is not disputed, as the area where the plantation of Mr. Konihaka is located. Now, on close scrutiny, the above statement is significant, because it gives the impression that there is in existence, two areas of land. One, is the area of land hatched on the plan, and on which the Appellant states he lives on, whilst the other area of land is that which he described as being now in dispute. If the piece of land hatched on the plan, was also in dispute or part of the land in dispute, then why didn't he say so. The Appellant could easily have said so in simple terms; but he did not do so. His statement rather, is more consistent with the conclusion that the area of land hatched was not part of the land in dispute between the parties in 1971 and 1972.

Secondly, at the bottom of the same page (3) and top of page (4) of the same Court transcripts, there is a reference to a piece of land which the Appellant says was left to him by will from his father.

"The land which was left to me by will of my father came to him from his father Ngaritora. He was no relation to the 1^st Maewara. That land is enclosed by natural boundaries and is different from that I am claiming through my mother. As my mother married my father Waitasu so my claim happens to be in respect of the adjoining area today. " (emphasis added)

A number of points can be noted from the above statement. First, there is a clear distinction made between the area of land which the Appellant claims was given to him or acquired through his father, as opposed to that which he seeks to trace from his mother's side. Secondly, he says it was given to him by will from his father. Thirdly, he describes the area of that land as enclosed by natural boundaries. Fourthly, he states that his claim before the court that day was in respect of the adjoining area. When the above factors are put together, it is very difficult to say that the area referred to above, which is the same area hatched (note also the description made of that area on the plan by the learned Chief Justice as "KONIHAKA'S LAND FROM PETER WAITASU (NO DISPUTE)", could ever be described as being part of the land in dispute between the parties. It must also be noted that this claim of the Appellant had never been challenged by Clement Maewawa in the High Court. Again I find, that the above statement is consistent with the view that that area of land is not part of the land in dispute between the parties.

Thirdly, and this has partly been referred to above, the engrossment of the following words by the learned Chief Justice is significant:

" KONIHAKA'S LAND FROM PETER WAITASU (NO DISPUTE)".

First, from the evidence in the Court transcripts, we know that Peter Waitasu is the name of Mr. Konihaka's father. Secondly, we also know that the Appellant claims that he was given a piece of land by will from his father, separate and distinct to his claim in respect of the land in dispute. The only logical conclusion therefore that can be made from the above engrossment is that the learned Chief Justice intended to mark or identify the said area of land as distinct from the area of land that was in dispute. The words in brackets (NO DISPUTE) are consistent with this conclusion. Otherwise, he would have made an engrossment to the effect that that piece of land is also in dispute or part of the land in dispute, or would not have marked it in the way that he did.

Fourthly, if we also take judicial notice of an earlier proceeding by the High Court in the same case, dated 13th August, 1971, at page 3 paragraph 3 of the Court transcripts, the Appellant made the following statement:

"I own the adjoining plantation called Hulihale plantation. I live at Marue"

It appears from the evidence in the Court transcripts and the sketch plan, that the reference to Hulihale plantation is but the same reference to Mr. Konihaka's plantation. This appears not to be in dispute. I find the use of the words "adjoining plantation" to describe the location of his plantation, significant. Adjoining from what reference point? The impression given from the use of this word is that the plantation adjoins another piece of land. I find that the more reasonable and logical conclusion to be reached on this is that the reference point being used was the land in dispute. I do not think the reference point would have been Marue because Marue is within the area of his plantation. If what the Plaintiff says is correct, that the plantation is within the disputed land, it would have been superfluous for the Appellant to describe his plantation as the adjoining plantation, as if it were a separate piece of land from the land in dispute. It would have been much easier to say that the plantation is also in the disputed land and thereby to qualify his claim of ownership over the said plantation. He did not say that however. I find this to be consistent with the explanations given in the later hearing, on the 19th December, 1972, where the Appellant explained how he came to acquire title over the area of land in which his plantation was located, and that this has never been challenged by Clement Maewawa. The learned Chief Justice appears to have accepted his submissions because he then marked that area inter alia, "(NO DISPUTE)".

When all the above factors are taken into account, I am not satisfied that it had been shown on the balance of probabilities that the area hatched in the plan, containing Hulihale plantation and also known as Konihaka's plantation and marked by the learned Chief Justice Bodilly, "KONIHAKA'S LAND FROM PETER WAITASU (NO DISPUTE)", formed part of the land in dispute or Makia Land. The consequence of this finding must mean that the boundary of the land in dispute stretching from Tawaiapa along the coastline could not have gone past the beach front of Makia Village as claimed by the Plaintiff to Marea

In his third submission, as to the boundary of Makia Land, the Plaintiff seeks to argue that the areas marked on the said sketch plan, simply showed the areas in which the properties of Mr. Konihaka were located in Makia Land. They should not be viewed as making any separate boundaries of the land in dispute and vice versa. He insists that the whole of the area shown on the sketch plan is Makia Land. He then cites the following statement of Clement Maewawa in the Court transcript at page 3, in support of his claim

"I want Joe Konihaka to remove his fence and cows to where his paid his mother for that land on the main land (Makira)."

Also, he relies on the statement of witness, Andrew Bate at the same page:

"Finally I want Joe Konihaka must take off his cattle fence from our water and he must take it over to Makira Island."

He relies on the above statements to show that the claim of Clement Maewawa was in respect of the whole area shown on the plan. Unfortunately, the evidence adduced does not support his view. I have already found that the area hatched in the plan and marked "KONIHAKA'S LAND FROM PETER WAITASU (NO DISPUTE)" for instance, could not have been part of the said land in dispute.

As to the issue on the properties of the Appellant, I find that he did make clear distinctions as to those properties within the disputed land as opposed to those outside. For instance, in relation to his coconut patches, he gives a clear description as to their identification and location. At page 3 paragraph 2 of the High Court transcripts, he states

"On the disputed land I have two patches of coconuts. The patch marked A were planted by my father some 80 years ago and the patch marked B were planted by me some 30 years ago. " (emphasis added)

Those two coconut patches can be clearly located on the plan, and are consistent with his description of the area of the land in dispute. They are separate to the coconut plantation which he claims he owns.

The same can also be said with regards to the cattle fence. It is located on the sketch plan to the left of the Manawai Stream and in the area marked as the disputed land. It is not located within the area hatched or where Hulihale plantation is located.

The submission made therefore that the areas marked merely showed the location of the properties of the Defendants on Makia Land, I find to be incorrect. The evidence rather supports the view that there is a separate and distinct area of land in the sketch plan which is identifiable as the disputed land. Mr. Konihaka refers to it as the adjoining area, and also adjacent to his plantation. He also distinguishes it very clearly in his evidence as separate to his claim made in that hearing. The court also appears to have accepted it as a separate piece of land because not only did it make an engrossment on the said plan with the following words, "DISPUTED LAND OUTLINED BLUE", but there is also clear reference to such an area of land in the judgment of the Court at page 2 third paragraph:

"However, it is admitted that both sides have for years been 1using the land in dispute and also the villagers of Makia Village have been cultivating gardens and trees on the same land. " (emphasis added)

The fourth submission of the plaintiff seeks to argue that the issue on appeal was not so much the boundary of Makia Land as the issue in custom on the effect of an adoption in Ugi custom; whether the adopted son regarding line land does have the full rights of inheritance of a true son or something less. The Appellant's view was that if the adopted son behaved himself and did not make trouble that he would be entitled to be given a small piece of land but not the whole of it. This view has been interpreted by the Plaintiff as implying that it was the intention of Mr. Konihaka to divide up the line land and to give a small portion to Clement Maewawa. And that when he was talking about the disputed land, he was seeking to divide up the land in that manner. When his claim was rejected by the High Court, he lost his rights not only to that disputed land but to the whole of Makia Land as shown on the plan. With respect, I must disagree as the evidence assessed thus far, simply does not support that view. Further, it should be borne in mind, that judgments inter parses should be confined to the specific issues in dispute, because those are the only issues that can be said to have been judicially determined and binding on the parties. The findings of the court in favour of Clement Maewawa, on the issue of adoption therefore should be confined to the area of the land in dispute between the parties and the decree of the Court should also be read in that context. The evidence as assessed, on the balance of probabilities, does not support the claim of the Plaintiff that the judgment of the Native Court and the High Court was in respect of the whole of the area shown on the plan; only in respect of the specific area identified by the learned Chief Justice as the area of land in dispute on the plan.

The Defendants have set up a formidable defence as contained in the Court transcripts, the sketch plan and the crucial evidence of Mr. Konihaka, in particular, his explanations on the origins of the two crucial markings "DISPUTED LAND OUTLINED BLUE" and "KONIHAKA'S LAND FROM PETER WAITASU (NO DISPUTE)". I accept his unchallenged evidence on those writings and the circumstances in which they were made by the Court.

As pointed out earlier, the burden of proof lies with the plaintiff to show that he had possession, or the right to immediate and exclusive possession of those areas in which the claim of trespass was alleged to have been committed by the Defendants. He however, has failed to do this and accordingly, his claim for trespass and consequential orders for eviction and an injunction to restrain the Defendants from reentering the said land must be dismissed with costs.

Albert R. Palmer,
Judge