Irosaesa v Akalonia; Ta'afia v Hariwarahana [1997] SBHC 88; HCSI-CC 10, 11 of 1995 (14 January 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 10 of 1995 and 11of 1995

AND: IN THE MATTER OF SECTION 46 OF THE MAGISTRATES’ COURTS ACT

AND:

IN THE MATTER OF A. IROSAESA

-v-

AKALONIA

AND:

IN THE MATTER OF KESTY TA’AFIA

–v-

PAUL HARIWARAHANA AND OTHERS

Civil Case Nos. 10 of 1995 and 11 of 1995

Opinion: 14th January, 1997

Palmer J: In his rulings dated 13th November, 1996 and 20th November, 1996, in respect of the above two cases, the presiding Principal Magistrate reserved a question of law for this Court’s opinion, pursuant to section 46 of the Magistrates’ Courts Act.

The question of law in both cases is the same and reads as follows:

“Does the Magistrates Court have power to hear civil claim for trespass on customary land in particular where the boundaries of a customary land has been clearly identified by the Courts?”

The general jurisdiction of the Magistrates’ Court to deal with a claim in trespass is contained in section 22(1)(a) of the Magistrates’ Court Act. The only limitation is on the value of the claim; for a Principal Magistrate, this is limited to not more than $2,000.00. The rationale for giving jurisdiction to the Magistrates’ Court in respect of such claims is fairly straight-forward. A claim for trespass entails concepts in the law of torts. Essentially, the local court justices and chiefs would not be able to grapple with such legal concepts and therefore it would not be fair, even if possible to allow such claims to be heard by them.

A real problem however, arises when the elements of trespass are analysed. This is where I think the concerns of the learned Magistrate have arisen. It is not so obvious where issues of ownership, possession and boundary are not in dispute or have been settled in law. In such instances, the only issue before the presiding magistrate would be to determine whether there had been interference with the rights of possession or immediate and exclusive rights of possession of the plaintiff. The fact that the claim for trespass relates to the trees on customary land makes little difference. There is no dispute pertaining to the ownership or possession of the said trees. The issue is the same; whether there had been interference with the rights of possession of the plaintiff over the said trees. This in essence is a question of fact not requiring a consideration of “customary evidence” in connection with customary land or the trees on the said land. The presiding magistrate would be more than competent to deal with such matters.

The problem however is compounded where issues pertaining to ownership, possession and boundary are disputed. Bearing in mind that it is a fundamental requirement in a claim for trespass that possession or a right to immediate and exclusive possession of land should be established by the plaintiff, (see Ganifiri v. Barai Maenene Civil Case No. 22 of 1991 H.C; and Sura v. Nialani Civil Case No. 155 of 1991 H. C ) where this is disputed, it places the presiding magistrate when determining this issue, in a possible awkward position. He may be required to consider “customary evidence”, when assessing on the balance of probabilities whether the element of possession or right to immediate and exclusive possession have been established. In such situations, it is my respectful view that the magistrate has little option but to stay proceedings and advise the plaintiff to take up the case first as a customary land dispute under the Local Court (Amendment) Act, 1985. Whilst the central issue before him is one of trespass, in seeking to determine the issue of possession, he would inevitably be drawn to consider “customary evidence” and make a determination affecting customary land. That with respect, is not permitted by section 231 (1) ((a) of the Land and Titles Act.

The crucial distinction to be noted in the former case, where issues pertaining to ownership, possession and boundary are not in dispute, is that the question of fact in essence which the magistrate would be required to determine, does not raise issues of “customary evidence” pertaining to customary land. The sole question to be considered is whether there had been interference with the rights of possession or immediate and exclusive possession of the plaintiff. There is no issue affecting or arising in connection with customary land. If anything, the only common factor linking the claim for trespass with section 231(1) (a) of the Land and Titles Act is that it happened to be in respect of customary land and trees in customary land. The usual associated problems with customary land however, are not present. It could easily have been a claim for trespass in respect of registered land, and there would have been little difference between the two.

The answer with respect to the question posed must be yes, provided that issues pertaining to ownership, possession and boundaries of the customary land are not in dispute or have been settled in law.

ALBERT R. PALMER
THE COURT.