Kere v Karana [2000] SBHC 48; HC-CC 258 of 2000 (27 November 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 258 of 2000

NATHAN KERE

V

PAUL KARANA

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 24th November 2000
Ruling: 27th November 2000

Radclyffe for the Plaintiff
Defendant not present

RULING

(Kabui, J): The Plaintiff filed a Writ of Summons together with a Statement of Claim on 21^st November 2000 against the Defendant, claiming damages for trespass to his customary land and conversion of trees felled thereon by the Defendant. The Plaintiff also seeks an injunction restraining the Defendant, his relatives and agents from entering upon Porokaputu Land except for the coconut plantation and from felling any forest trees on any part of the Porokaputu Land. Also, filed on that same day was an ex parte Summons seeking an interim restraining order from the Court on the same terms as the claim for an injunction in the Statement of Claim. The Defendant lives in Paggoe Village in the Choiseul Province. He was not served with the ex parte Summons because it could not be done within a few days of the hearing date for the ex parte Summons for the matter was urgent. I heard the ex parte application in the absence of the Defendant as a result of that fact. I was tempted to grant the restraining order sought by the Plaintiff on the rising of the Court but I decided to give my ruling in writing on 27^th November 2000, that is, today.

This ex parte application reminds me of the ruling I made in the case of Totorea, Roe Roe & George Ahukena v Tairata Integrated Forest Development Company Limited and Bulecan Integrated Wood International Pty Ltd (Civil Case No. 204/2000) in which I refused to grant an interim restraining order on the ground that the High Court has no jurisdiction to decide the ownership of customary land. The brief facts of that case were that the parties were disputing the ownership of two adjoining areas of customary land, one of which was used by a logging concern for a log pond. The area of land in dispute had a log pond so that the party in whose land logging was taking place alleged that the log pond was still part of their land which was denied by the other party who said the log pond was on their land. The dispute was really over the correct boundary in custom dividing the two parties in dispute. The dispute had been put to the Chiefs who ruled in favour of the Plaintiff but the Plaintiff being not satisfied referred the matter to the Local Court. In the meantime, the Plaintiff filed a Writ of Summons with a Statement of Claim. Simultaneously, the Plaintiff by an ex parte Summon, asked the Court for a restraining order to prevent the other party from using that log pond for their purpose. In my ruling I said that although I found that there was a triable issue, that issue arose from a claim which put in issue the determination of the ownership of land, a matter which the High Court does not have the jurisdiction to entertain in accordance with Gandly Simbe v East Choiseul Council, Eagon Resources Dev. Company Ltd, Steven Saki and Peter Madada (Civil Appeal No. 8 of 1997). At page 6 of my ruling I said,

“I think it is a better policy in this sort of cases that no party should come to the High Court for an interim injunction on the ground of trespass to customary land until that party has got a final decree of ownership between the disputing parties.”

The Facts in this Case

The Plaintiff claims he and the members of his clan own Porokaputu Land. The Defendant is a member of the Ruasu tribe, another tribe, different from Pagara tribe from which the Plaintiff’s clan is a part. In 1968, the Plaintiff’s father, by an agreement, permitted the Defendant’s father to plant coconuts in a small area within the Plaintiff’s land, the Porokaputu Land. In September or October, 2000, the Defendant and his relatives or some of them wrongfully entered the Plaintiff’s Land and felled and milled rosewood trees without the permission of the Plaintiff and sold the same for profit thus causing loss and damage to the Plaintiff and his clan. The Defendant has no licence to fell and remove timber on the Plaintiffs Land, the Porokaputu Land.

The Law of Trespass on Customary Land

In this jurisdiction, trespass actions with regards to land both registered and customary land are often treated and accepted as “run of the mill” stuff. That is, trespass to land including customary land is a wrong against possession and not title though title can be a ground for an action for trespass also. This is an interesting point of law in terms of trespass to customary land. There are three categories of cases that can be ascertained which involve trespass to land in Solomon Islands. The first are those cases of trespass against registered land. This category is based upon the rules of English common law which says trespass is a wrong against possession though at times, title may also be in issue. The second category are those cases of trespass against customary land already decided by the Chief or a court of law between the same parties. These cases are based upon the rules of the English common law of trespass. This can however be an assumption in terms of trespass against customary land because trespass under the common law places emphasis upon possession rather than title although title may also be a basis for an action for trespass. But in these cases the ground for the action for trespass must necessarily be the title or ownership of customary land though possession is obviously subsumed by the existence of title or ownership. This is the difference between action for trespass under the common law and for trespass against customary land. The common law places emphasis upon “possession” whilst customary law places emphasis upon “title” or “ownership”. Whilst the common law places emphasis upon “possession” as the basis for an action for trespass, customary law attributes no significance at all to it in terms of title or ownership apart from it being the hallmark of title or ownership where it is not transitory in nature. This is a fundamental difference. Trespass in customary law is a wrong against title or ownership. That is what matters for possession can at times be transitory. Title or ownership can never be. Either there is title or ownership or nothing. Possession is not the hallmark of conclusive title or ownership although it can be to confirm title or ownership. It only has eventual value. There is no such thing as ownership without possession in customary law, although there can be cases of possession without ownership where persons without any “blood connection” may occupy customary land which they do not own in custom for some reason. They can either be licensees, refugees or distant relatives such as in-laws etc. However, such persons normally cannot sue for trespass against strangers under the rules of the English common law as they are not owners of the land unless the action for trespass is mounted through the owner of that land in custom. The third category of cases includes those cases where one party is already the declared owner of the customary land by the Chiefs or a Court of law but ownership is being challenged by a different party who alleges that he is the true owner in custom. In such cases, the Court decision in favour of the Defendant, as it were, would be no defence against the new party claiming ownership of the customary land. Also, in this category are those cases where the parties are disputing the ownership of customary land for the first time. Even logging cases involving claims for trespass are in this third category of cases. Therefore, in all the customary land disputes in Solomon Islands, “ownership” is the issue and not “possession”.

This is the point in this discussion. The basis of trespass in the English common law is understandable because in England, the Crown is the overall landlord. Those who hold land interests lesser than that of the Crown are tenants only. As tenants, they are in lawful possession of their land and can sue for trespass to protect their interest in that land. Not so in Solomon Islands where the tribe or clan owns the land and everyone else is a stranger at large who is not a member of the tribe or clan. One may wonder why this is so in Solomon Islands or for that matter in Melanesia. The reason, I venture to say, is that in our societies in the past and even now do not have the concept of landlord and tenant because there is no reason to do so. Those who till the land are entitled to do so through their “blood connection” with the land. Outsiders were few in numbers and even so, outsiders do not pay rent even if they are allowed to till the land for food, for anyone who lives in a place anywhere is entitled to feed himself and his family from the land accordingly to his ability. Possession alone has never been the basis for land claims. Possession is only the hallmark of ownership until ownership is dislodged or confirmed by the Chiefs or a Court of law.

This Case

I was told by Mr. Radclyffe in his submission that the matter between the Plaintiff and the Defendant would soon find its way to the Chiefs. I would say that the Plaintiff should run to the Chiefs at the first the opportunity not walk or tread. In my view, the Plaintiff’s Statement of Claim raises the triable issue of title or ownership of Porokaputu Land. That triable issue should not be brought to the High Court for determination. It is a matter for the Chiefs, the Local Court, and the Customary Land Appeal Court under the supervision of the High Court. I do not for one moment dispute the Plaintiff’s Statement of Claim claiming possession of his land. But I cannot decide who is right owner or who is not. If I say the Plaintiff being in possession of Porokaputu Land is entitled to a restraining order because of that fact, I am already saying the Plaintiff is the owner of Porokaputu Land because disputes over customary land in Solomon Islands is over “title” or “ownership” of land and not over “possession”.

The Plaintiff admits that the Defendant is a descendant of a woman of his clan who had married into Ruasu tribe, another and a different tribe from the Plaintiffs Clan. Already, there is a “blood-connection” though it may be remote in nature. Even the right of usage is often claimed as an incident of title or ownership in customary land claims. The High Court can only assist in granting restraining orders if the dispute is pending before the Local Court or the Customary Land Appeal Court (See Gandly Simbe’s case cited above at pages 22-33). In the case of John Osiramo v Mesach Aeounia (Civil Case No. 020/2000), I extended the benefit of injunctive orders by the High Court to Chiefs as well as a recognised forum for the resolution of customary land disputes in Solomon Islands. At pages 3 – 4, I said,

“In my view, I do not see any reason why the Chiefs in their adjudication role in customary land disputes should be excluded from the same benefit of injunctive orders by the High Court as they are also forums created by statute.”

The High Court only has an aiding jurisdiction in the resolution of customary land disputes. In this case, the dispute is not even pending before the Chiefs. There is no evidence of that too in this Court. I cannot do much to assist the Plaintiff. The Plaintiff has obviously come to the Court based upon his possession of Porokaputu Land and has asked for a restraining order based upon his claim for trespass. I am sure that the Plaintiff in his mind firmly believes he and his clan own Porokaputu Land not merely being in possession of it but being the owners in custom. As I have said, the Plaintiff must run to the Chiefs first, and if the need arises, to the Local Court and the Customary Land Appeal Court as the case may be. In so doing, the Plaintiff may wish to seek the aid of the High Court at a later date for a restraining order against the Defendant.

As to the fate of the Plaintiff’s ex parte Summons, I refuse to grant the restraining order sought by the Plaintiff on the ground that the High Court does not have the power to grant restraining orders at this stage in a customary land dispute. In the result, the Plaintiff’s claim for trespass in his Writ and Statement of Claim may have to be stayed until the ownership of Porokaputu Land is finally decided under the Local Courts Act (Cap. 19) as read with sections 254 – 257 of the Land and Titles Act (Cap. 133) or the Writ may have to be left to die a natural death. I do not think this ruling is in conflict with any previous decisions in this jurisdiction on this point. This perhaps is the first time this point has been dealt with in this jurisdiction. In summary, I am simply pointing out the difference that exists in the English common law and customary law in customary land disputes. The English common law, as it were, seeks out evidence of "possession" in an action for trespass to land whilst customary law, on the other hand, looks for “title” or “ownership”. In England, there is only one landlord, the Crown. In customary land tenure system, the landlords are the tribes or clans who are landowners and there are many of them in Solomon Islands. There are no tenants paying rent for the use of the land as in the case of registered land owned by the Commissioner of Lands alone on behalf of the Government. Therefore, there exists this difference of emphasis when deciding trespass or no trespass in customary land.

F.O. Kabui
Judge