Lete v Siki [1999] SBHC 19; HC-CC 037 of 1997 (8 March 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 37 of 1997

class="Mss="MsoNormal" align="center" style="margin-top: 1; margin-bottom: 1"> LEONARDO LETE

v

LEONSIO SIKI

p class="MsoNormal" align="left" style="margin-top: 1; marg margin-bottom: 1">

High Court of Solomon Islands

Before: PALMER J.

Civil Case No. 37 of 1997

lass="Mss="MsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> Hearing: 8^th December 1998

Judgement: 8^th March 1999

lass="Mss="MsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> P. Tegavota for the Plaintiff
C. Ashleythe Defendant

p>

PALMER J.: (THE CLAIM OF THE PLAINTIFF) The Plaintiff claims ownership of the customary land known as GAUALE LAND. His ownership claim arises in custom but as well as by virtue of a local court decision in his favour. He had initiated proceedings in the appropriate courts and holds a decision from the Guadalcanal Local Court in his favour at the time of filing of this Writ and Statement of Claim (see annexure “L1” in the affidavit of Leonardo Lete filed 14^th February 1997). The action however has not stopped there. In his submissions before this court in an ex parte application held on 14^th February 1997, learned Counsel Mr. Tegavota for the Plaintiff concedes an appeal is pending before the Guadalcanal Customary Land Appeal Court. The issue of ownership therefore over Gauale Land has not yet been finalised between the parties. To that extent one may think it was premature of the Plaintiff to commence this action in this Court.

laintiff however argues that with a valid decision in his favour, he is entitled tled to come to this court to preserve or protect his interest which he sees the Defendant breaching or destroying. In paragraph 4 of his Statement of Claim he alleges the Defendant had refused to recognise the decision of the Guadalcanal Local Court and continued to carry out clearing of part of the said land, done new plantings of cocoa and other developments without his consent. He fears if the Defendant is not restrained, he will continue and thereby cause irreparable damage or harm to the land. Part of the relief sought was for restraining orders to be imposed against the Defendant, members of his tribe or line, his servants or agents, preventing them from carrying out inter alia, any new activities in the said land.

EX PARTE APPLICATION:

class="MsoNormal" align="len="left" style="margin-top: 1; margin-bottom: 1">

On 14^th February 1997, the Plaintiff made application for interim orders to restrain the Defendant, members of his tribe or line, his servants, agents or persons authorized by him, from inter alia, carrying out any new activity on the said land. The affidavit of Leonardo Lete filed on 14^th February 1997 was relied on in support. At paragraph (4), he deposed the Defendant had continued to carry out new clearings, planted cocoa and other crops in the said land. He deposed he had told the Defendant many times to stop but to no avail. He claims to have reached the end of his tether and so come to court for relief. A copy of the sketch plan and enlarged map of the area had been filed with that affidavit.

p class="Mss="MsoNormal" align="left" style="margin-top: 1; margin-bottom: 1">

This Court granted the interim orders sought on the same date had it signed, sealed and perfected on 17^th February 1997.

CONTEF COURT PROCEEDINGS:

On 2^nd July 1998, leavesought from this court to i to institute contempt of court proceedings against the Defendant on the ground that the Defendant had wilfully refused to comply with the orders of this court and continued to carry out activities which he had been ordered not to do.

On 29^th July 1998, leave wanted to the Plaintiff to apto apply for an order of attachment against the defendant and have him punished for contempt of court. The order was signed, sealed and perfected on 13^th August 1998. The matter came for hearing initially on 28^th September 1998 but then had to be adjourned a number of times before finally being heard on 8^th December 1998.

BURDEN OF PROOF:

lass="Mss="MsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> The burden of proof in contempt of court proceedings has been clearly laid down in Hitukera v Hyundai Timber Company Limited & Maepeza Civil Case no. 132 of 1992, judgment delivered on 23^rd July 1992, by his Lordship Muria ACJ as he then was. At page 3 of the judgement, his Lordship cited the cases of In Re Bramblevale Ltd [1970] 1 Ch 728 at 137; [1969] 3 All E.R. 1062, at 1063; Knight v Clifton [1971] 2 All E.R. 378, 381; Jennison v Baker [1972] 1 All E.R. 997 at 1002; as establishing in very clear terms that the burden of proof must be that of proof beyond reasonable doubt whether it be a civil or criminal contempt. I quote:

“I venture to adopt the views stated by the leaLaw Lords as entirely approappropriate when considering cases of contempt of court in Solomon Islands. Much more so the standard of proof as expounded by Lord Denning M. R. is compatible with the spirit of the Constitution under the entrenched provisions which safe-guard the rights and freedom of the individuals in Solomon Islands.”

The standard of proof expounded by Lord Denning in Re Bramblevale Ltd (ibid.) is that of proof beyond reasonable doubt.

THE EVIDENCE:

The Plaintiff Leonardo Lete gave evidence on oath regarding the alleged contempt. He states the Defendant had carried out new activities and developments on the land which he had been forbidden to do. These included the planting of cocoa trees on about 2-3 acres of land, the building of a new house and the felling of one tree called “ligi” in their language. It is also significant he claims in evidence that both the old and new villages of the Defendant (Tsagoe Village and Goana Village) are located in his land Gauale Land.

The Defendant on the other hand claims Goana Village which sides in is located outsidetside of Gauale Land. Accordingly he denies any of his activities were done within Gauale land but outside. He further denied making any gardens, planting any cocoa or felling any Rosewood tree to sell in Guale Land.

ANALYSIS OF EVIDENCE AND CONCLUSION:

A number of matters can be drawn from the evidence of both parties. First, we do not have a description of the boundary of the area of Gauale Land as determined by the Guadalcanal Local Court. A copy of that decision is annexed to the affidavit of Leonardo Lete filed 14^th February 1997 and marked “LI”. This naturally makes it difficult for this Court to determine which was the area of Gauale Land as awarded to the Defendant and to be covered by the restraining orders of this Court. All we have is what the Plaintiff claims are the boundaries of Gauale Land. Unfortunately this is disputed by the Defendant.

According to the map of the area of Gauale Land submitted to cour court by the Plaintiff (see annexure “L2” attached to the affidavit of Leonardo Lete filed 14^th February 1997), the area alleged to be under cultivation by the Defendant was clearly identified within the boundaries of Gauale Land. At the same time, Leonardo Lete does not dispute the Defendant had resided in Tsagoe as far back as 1962 and just recently, had moved to Goana Village, a total of some thirty odd years. That with respect is evidence of some sort of possession. It logically follows he must have worked on and developed the said land to some extent; including the planting of coconuts and other crops and food gardens. This is consistent with the evidence led and has not been disputed.

What is disputed and the subject of this contempt action is new planting of cocoa treestrees and other new activities had been carried out by the Defendant.

The starting point must be the terms of the order of this Court dated 14^th February 1997 together with the map attached to it which had been served on the Defendant. This meant whilst the area of Gauale Land remains disputed, the Defendant must be deemed to have had notice of the fact that the area disputed by the Plaintiff is the area marked in the map served with the order on him. Any new activity within the said area therefore must be construed to have been in breach of the said orders of this court and a contempt of court.

The Defendant however has consistently denied planting any new gardens or cocoa trees within Gauale Land. Whether this meant he had been planting cocoa trees and making the gardens inside what he claimed is his own land Goanna Land, is not clear. Unfortunately this was never raised or put to him in cross-examination by the Plaintiff. What is clear the Defendant not only denies outright the allegations of the Plaintiff but claims they were false as well.

Leonardo Lete on ther hand, claims to be an eye witness of the newe new activities carried out by the Defendant in his land. No other witness however has been called or evidence adduced in support of his allegations. Bearing in mind the burden of proof in this case, I can still find in favour of the Plaintiff if I accept his evidence in its entirety and reject that of the Defendant.

The claim of the Plaintiff mo less turns on the issue of credibility. Whilst I accept topt to some extent the Defendant had been evasive under cross-examination, I am unable to reject or discount his evidence in its entirety. For instance, on the claim that a Rosewood tree had been felled by the Defendant in the area, he denied instructing the two boys named by the Plaintiff who had been seen felling the said tree. To the contrary he asserts they belonged to the tribe of the Plaintiff, whilst the Plaintiff asserts they belonged to the tribe of the Defendant. I bear in mind the allegations were made by the Plaintiff, and so it is for him to prove his case to the required standard. He has chosen not to call those two boys, or subpoena them where they refuse, to attend court and give evidence. In my respectful view this must affect the balance of proof in this case and be held against the Plaintiff. In other words the burden of proof I find had not been discharged. It must be borne in mind, a contempt of court action is a very serious allegation and must be proven to the required standard.

The same mu said in respect of the allegations that a new hoew house had been built and further plantings of cocoa trees over some two to three acres of land in Gauale Land. It is in weighing the evidence adduced that I find some difficulty in accepting the evidence of the Plaintiff in its entirety and rejecting the evidence of the Defendant outright. I also bear in mind the fact it has not been disputed the Defendant has substantial property on the said land as opposed to the Plaintiff, who it seems has nothing or very little. The fact that a village had sprung up on the said land and had been in existence for some time with crops and gardens is evidence to a certain extent of possession and until the matter is finally determined, the Defendant must be allowed to attend to his crops, gardens and the maintenance of his village and home without interference.

Ialso not clear where the approximate location of Goana Village or Tsagoe Village lage is. The only evidence before this Court was that those two villages are within Gauale Land, but this had been disputed by the Defendant. At the close of hearing, it was suggested to the parties that each should submit a map of the area they claim with relevant names of their villages to assist the court in some way but this had not been done.

In balancing the evidence before me, I have not been able to come to the satisfactory conclusion that the burden of proof had been discharged. Accordingly the contempt action must be dismissed with costs. The orders imposed on 14^th February 1997 must be allowed to continue.

The Parties should now be concerned with following their case up with the Guae Guadalcanal Customary Land Appeal Court to have the matter listed for hearing as soon as possible.

<

1. APPLICATION DISMISSED ITH COSTS.

/p>

2. THE INTERIM JUNCTION ISSUED OUED ON THE 14TH FEBRUARY 1997 TO CONTINUE UNTIL FURTHER ORDERS OF THIS COURT. THE DEFENDANT HOWEVER MUST BE PERMITTED TO ATTEND TO THE MAINTENANCE OF HIS FOOD GARDENS, CROPS AND VILLAGE.

THE COURT