Taloibiu v Palmer [1998] SBHC 119; HCSI-CC 268 of 1995 (21 September 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 268 of 1995

KEDMUEL GEOFFREY TALOIBIU & ANOTHER

-v-

GEORGE PALMER & ANOTHER

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No. 268 of 1995

Hearing: 25th August, 1998
JUDGMENT: 21st September, 1998.

D. Hou for the Plaintiffs
P. Tegavota for the Defendants

PALMER J.: The Plaintiffs are registered as joint owners of the Perpetual Estate in Parcel No. 134-010-4 (Lot 179 of LR 1008) within Matakwalao Land Settlement Area in Malaita. The Defendants reside in the area but have no legal or beneficial interest therein. This is not disputed.

The Plaintiffs allege that in April or May 1995 the Defendants and others trespassed upon the said land and felled trees thereon. Log were milled and removed to Honiara for export. No permission was obtained and warnings were not heeded.

The Plaintiffs now come to Court by summons filed 27th May, 1998 seeking leave to enter judgment on the ground that there is no defence to this action. The Plaintiffs have filed in support the affidavit of Douglas Hou filed 27th May, 1998. At paragraph 3 of his affidavit he refers to a survey report conducted by Andrew Rofeta. The report contains details of the location of about 19 trees felled within the boundaries of the said land. The report also identified a number of boundary pegs and confirmed that the trees felled were clearly within the said registered land.

The defence as raised by the Defendants is that they deny removing the said trees from the said land. They aver that they had carried out logging within Parcel nos. 134-010-2 and 134-014-24. This is consistent with what was pleaded in their Statement of Defence filed 2nd November, 1995. Also see affidavit of Pio Akwasitaloa filed 22nd November, 1995.

Further, Mr. Tegavota for the Defendants points out that the species of trees cut and total volume removed do not correspond. In the affidavit of Pio Akwasitaloa at paragraphs 3 and 4, he deposes that only two species of trees were removed; rosewood and akwa, and a total volume of 26.808 cubic metres. In comparison, the survey report showed that another species of tree was also removed. Also in the affidavit of Kemuel Geoffrey Taloibiu filed 6th September, 1995, he deposes that a total of 55.62 cubic metres of logs was removed. This does not correspond with what was averred by the Defence.

As to the question of identity of the Defendants as the persons who felled and removed those trees, there is little direct evidence. Also this is disputed.

I am satisfied there is a valid defence which raises triable issues that can only be determined in a trial proper.

ORDERS OF THE COURT:

1. DISMISS SUMMONS WITH COSTS.

2. DIRECT THAT THE PLAINTIFF SHOULD PROCEED TO HAVE CASE LISTED FOR TRIAL ONCE PLEADINGS HAVE CLOSED.

ALBERT R. PALMER
THE COURT.