Ringalea v Karoa [1997] SBHC 24; HC-CC 090 of 1996 (22 May 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 90 of 1996

ter">BILLY RINGALEA

-v-

DANIEL KAROA

ont size="3">="3">Before: Palmer, J

Hearing: 14th May, 1997 - Judgment: 22nd May,

Counsel : A. Nori for the Plaintiff; C. Sol Solosaia for the Defendant

PALMER J.:

The Plaintiff seeks a number of declarations by originating summons filed on 22nd March, 1996 as follows:

1. declaration that under paragraph (3) of the decision of the Malaita Local Court in land case numbered 13/94 and dated 16/1/95-

(a) trees felled in the Plaintiffs farm prior to the commencement of the land case are personal property within the context of the court judgment;

(b) milling of trees already felled prior to the commencement of litigation does not constitute further development within the context of the judgment and therefore permission of the Defendant is not required.

2. In the alternative the Plaintiff has a right to refer the question of ownership of the timber milled from trees felled prior to judgment in land case 13/94 to the chiefs under section 8 D of the Local Court (Amendment) Act 1985."

Mr Nori for the Plaintiff indicated at the beginning of the hearing that he would not be pursuing paragraph 2 of the originating summons. He relies only on the matters raised in ground 1(a) and (b) in this application.

His main line of argument in respect of ground 1(a) and (b) is based on an agreement (declaration), entered into by his client with the representatives of the Koko'o clan and sub-clan; being the landowners of Thasui Lalamo customary land, on or about 4th February, 1980, which he relies on as giving him permission to enter and use the said land for his exclusive use, for purposes of "coconut development and later may be cocoa under coconut; cutting the forest for milliny (sic)". A copy of that agreement is annexed to the affidavit of Billy Ringalea filed on 22nd March, 1996 and marked "BR 2". That document is headed " DECLARATION OF PERMISSION TO USE LAND". The signatories were Billy Ringalea (Plaintiff in this action), Hendrick Funuinao and Karao (Karoa - the Defendant in this action). These were identified as the clan or line leaders of Koko'o clan/line and subclan/line, and the land-holders of Thasui Lalamo customary land. That document also contains a certificate signed by a Council Member certifying the accuracy of the details set out in the agreement or declaration.

The Plaintiff relies substantially on this agreement in support of the declaration sought in paragraph 1(a) of the originating summons, that the trees felled in the Plaintiffs farm prior to the commencement of the Land Case No. 13/94, were personal property.

The Defendant on the other hand does not dispute the existence of that agreement or declaration. His main argument, which I perceive learned Counsel, Mr Solosaia sought to bring to the Courts' attention was that the agreement had been terminated between the parties, and thereby permission withdrawn, prior to the Local Court Land Case No. 13/94 being instituted. Therefore permission must be obtained from the Defendant for the Plaintiff to re-enter the said land for purposes of removing any felled trees for milling, despite the concession made in respect of paragraph 1(a) of the Originating Summons.

The affidavit evidence before this court unfortunately is very scanty. Also details of the agreement as contained in the declaration are the barest essentials. The agreement does not stipulate for instance any period for which permission had been granted to Billy Ringalea. There is no provision also covering withdrawal of permission or termination of the agreement. Whatever information there was, came from the Bar Table, that not long after the parties embarked on the agricultural project, they drifted apart, relations strained, soured and ended up in the Local Court. This appears not to have been in dispute. From this the court can take judicial notice of the fact that whatever agreement was in existence in 1980 and whatever permission had been given to the Plaintiff, had been terminated and withdrawn, by the time the parties went to Court. I observe that the submissions of learned Counsel, Mr Nori for the Plaintiff is consistent with this view and that he has not sought to advance any argument that the agreement may have still subsisted.

What are the legal results or effects of this on the parties? Any agricultural crops planted during the duration of the agreement or when permission was granted, remained the personal properties of the Plaintiff. In the same token, any trees felled, removed and milled during the same period became the personal property of the Plaintiff. This is consistent with paragraph 3 of the Local Court decision in Land Case No.13/94. There is however a clear distinction to be made in respect of the declaration sought in paragraph 1(a) of the Originating Summons. It is not strictly correct to say that all trees felled in the Plaintiffs farm prior to the commencement of the land case are the personal properties of the Plaintiff. Only trees felled, removed and milled, prior to the commencement of the land case, became the personal properties of the Plaintiff. It is important to appreciate that the right to fell, remove and mill trees, subsists with the permission (which contains the rights), to enter and use the land for coconut and cocoa development. It is not a separate right or permission. Mr Nori was careful to point this out in argument before the court when questioned whether there is a separate right involved. He pointed out that in clearing the land for coconut and cocoa development, trees have to be felled and removed. In that process they are removed and milled by the Plaintiff. If the permission to enter and use the land for coconut and cocoa development and milling of timber, is withdrawn or terminated, then that puts an end to the right of the Plaintiff to continue milling of timber, despite the fact that there may still be trees on the ground which had been felled by the Plaintiff. He no longer has permission to enter and carry out any further activities on the land apart from may be tendering his crops that he had planted.

It is important to distinguish ownership or acquisition of trees from the rights which stem from the permission granted to the Plaintiff pursuant to the agreement of the 4th February, 1980. There is no evidence of any agreement for the transfer of ownership or acquisition of the said trees. Had that been the case, ownership of the said trees felled prior to the commencement of the land case would have vested in the Plaintiff, and he would have been entitled to claim them as his personal property. But not in this case.

The declaration sought in paragraph 1 (a) accordingly should be amended to read as follows; " trees felled in the Plaintiffs farm which have been removed and milled prior to the commencement of the land case are personal property within the context of the court judgment". The Plaintiff however is not entitled to enter the said land and carry out milling of felled trees. He no longer has the permission to do that and the Defendant is entitled to take criminal proceedings against him should he fail to comply.

As to the declaration sought in paragraph 1

(b) that would not be necessary to answer in view of the way this court had ruled, but to avoid any doubts, any further milling of already felled trees would constitute further development. The insurmountable hurdle the Plaintiff faces is that he no longer has any permission to enter the Defendants land to remove the felled trees and mill them. The mere act of felling the trees did not vest or transfer to him, ownership of the said trees. Those activities had been performed pursuant to the permission granted as contained in Exhibit "BR2". Now that that permission had been withdrawn or terminated, he must obtain separate permission from the Defendant if he wishes to carry out any further milling of the felled trees.

p>="3">ORDERS OF THE COURT:

1. Allow declaration sought in paragraph 1(a) in part as follows:

"That trees felled in the Plaintiffs farm which have been removed and milled prior to the commencement of the land case are personal property within the context of the court judgment."

2. Dismiss declaration sought in paragraph 1(b).

3. Costs of the Defendant (if any) to be borne by the Plaintiff.

THE COURT