Hulanga v Pwaulo [2001] SBHC 137; HC-CC 229 of 2000 (28 August 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 229 0F 2000

REUBEN HULANGA

-V-

WILSON PWAULO

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 27TH AUGUST 2001
JUDGMENT: 28TH AUGUST 2001

A. Radclyffe for the Plaintiff
Fr. Patteson Ngalihesi spokesman for the Defendant

PALMER ACJ.: The question of ownership between the Plaintiff (Reuben Hulanga) and the Defendant (Wilson Pwaulo) over Aranga customary land situated in South Malaita, Malaita Province had been finally settled through the due process of law applicable to Solomon Islands, in Malaita Local Court Case Number 13 of 1991, the Customary Land Appeal Court Case Number 3 of 1992 and Land Appeal Case Number 12 of 1994 (High Court). The Local Court found in favour of the Plaintiff:

Wilson Hulanga is the genuine rightful owner of Aranga Land from the mouth of Melue River, Daha passage through Mal’apeine Okeirio east coast to Tawaiseu tambu site goes north/east to Epumei goes west along Hunangaile ridges, passing the stone corner at Taheniesi areas goes down Dehoulu portion goes down to Otenilito settlement side goes down Melue river to Daha Bay.

Wilson Pwaulo has the right over Hunangaile land northwest of Daha village.”

This was confirmed by the Malaita Customary Land Appeal Court (“the MCLAC”), which added the following order:

“That Wilson Pwaulo has right to use his property on Aranga land. Any further development, permission must be sought from the Respondents.”

The Defendant appealed to the High Court but his appeal was dismissed. The Plaintiff now comes to Court for orders inter alia, that damages be paid for trespass and conversion limited to $25,000-00.

The Plaintiff’s Claim

The Plaintiff alleges in his Statement of Claim filed 29th September 2000 that the Defendant had breached the orders of the Court preventing him from embarking on any further developments without his permission by:

(a) erecting a new shed for use as a petrol refilling point;
(b) clearing new sites for gardens;
(c) expanding the site of the Defendant’s village;
(d) making a trade store;
(e) encouraging and inviting relatives of the Defendant to stay with him resulting in (c) above;
(f) cutting down trees and selling them to people at Aulupaine village.

As a result of those activities he claims the Defendant and his relatives had trespassed on Aranga land and caused damages as follows:

(a) felling of the Plaintiff’s coconut palms;
(b) cutting down of forest trees;
(c) cutting down of bamboos, sago palms and betel nut trees.

The Defence

The Defendant’s defence was simple. In his written and oral submissions before this Court Fr. Ngalihesi maintains that the activities complained of were what he would describe as normal activities within the vicinity of his community or village and that accordingly as far as he was concerned they do not need to ask permission from the Plaintiff. Some of the activities carried out were needed to improve village life, others relate to normal expansion of village life which is inevitable in view of the increasing population in his village or community and he denies any commercial activities had been performed.

The Evidence

The Plaintiff gave oral evidence before this Court. It transpired however, that his oral evidence could only support three of his claims: (a) clearing new sites for gardens, (b) constructing new buildings and (c) the construction of a copra dryer. The Defendant called one witness but the relevance of his evidence was confined to a proposed reconciliation ceremony planned towards Christmas of this year.

Submission of the Parties

The Plaintiff contends that the Defendant in the clearing of new sites for gardens, and the construction of new buildings and copra dryer had committed trespass and conversion. The Defendant does not deny these but seeks to argue that these are normal activities carried out pursuant to normal village life and demands and necessary for maintaining the quality of life in their community. Hence he feels they do not need to seek the permission of the Plaintiff.

The Issue

The issue before this Court is two-fold, (1) whether the clearing of new sites for gardens, the construction of new buildings and a copra dryer amounted to “further development” and thereby required permission to be obtained from the Plaintiff, and (2) whether as a result of those activities trespass and conversion had been committed and as a result damages should be ordered.

The Law

Trespass to land simply means unjustifiable interference with the possession of land (Winfield and Jolowicz on Tort 9th Edition at page 306). Conversion on the other hand is any act in relation to the goods of a person, which constitutes an unjustifiable denial of his title to them. There are two crucial elements in the tort of conversion to be established: (a) a dealing with the goods in a manner inconsistent with the right of the person entitled to them, and (b) an intention in so doing to deny that person’s right or to assert a right which is inconsistent with such right (Winfield and Jolowicz [ibid] at page 422).

Application of law to the facts

The initial difficulty or perhaps confusion that has arisen has been the lack of understanding or perhaps ignorance as to what is meant by “further development”. In adding order number (3) to its Orders in Land Case Number 3 of 1992, the MCLAC did not expound to the parties what was meant by “further development”. All it said was:

“That Wilson Pwaulo has right to use his property on Aranga land. Any further development, permission must be sought from the Respondents.”

Perhaps it assumed that the parties would know. Unfortunately previous court decisions have shown that that is not always the case. What can be gleaned from the judgment of the MCLAC (“the MCLAC”) is that whilst it acknowledges the Plaintiff is the owner in custom over Aranga land, it appears to recognize the existence of user rights that the Defendant and his people have over their properties in Aranga land. That would mean on the face of it, the right to use any fruit trees, including coconut trees (plantations), buildings and gardens in existence, at time of judgment. I do not think in making such order the MCLAC was granting or issuing any new rights to the Defendant, other than to give voice and recognition to what they already had in custom at said time. For it is my respectful view, the MCLAC cannot grant any new rights other than what was already in existence and recognized in custom. All that had been required of the Malaita Local Court (“the MLC”) and the MCLAC to discharge in the exercise of their judicial functions was to determine questions of ownership over Aranga land. That they have done. What flows from that, if there still exist confusion or uncertainty, those should be determined according to the custom of the parties. For instance, what rights in custom flow from the ownership rights of the Plaintiff? Do they include the right to be able to evict the Defendant and his people from Aranga land, bearing in mind that the evidence adduced before this Court is that the Defendant and his people actually reside in the said land. If so, under what circumstances recognized by custom can that be done. I raise this because one of the orders sought in this application by the Plaintiff had included eviction orders, but during trial that had been abandoned and so it is not necessary for me to deal with that question in this judgment. But if it does arise, customary evidence might have to be adduced.

On the other hand, the fact Defendant resides on Aranga land, raises further questions as to what rights if any in custom, does the Defendant have. Does he have residential or occupation rights? If so, what kind of residential rights? How are these defined in custom? For instance, under the Land and Titles Act [Cap. 133], the Commissioner of Lands on behalf of the Government or the Premier on behalf of the Provincial Assembly, can grant land on a fixed-term estate basis normally for fifty years. Land can also be leased for a number of years under the same Act. The rights of a person holding title, depending on whether it is a perpetual estate, a fixed-term estate or a lease, are protected and covered in the Act itself (see sections 112, 113, 147). Those rights once acquired and registered under the Land and Titles Act are called indefeasible rights, secured by the law and can only be displaced by law. Now the question which I pose, is whether there is something similar in custom that exists here? In recognizing the user rights of the Defendant, is the MCLAC indirectly giving due recognition to the residential or occupation rights of the Defendant and his people over that portion of land in Aranga land, which they currently occupy. It appears these are some matters, which might require clarification at some later stage.

For now, the question, which I am required to determine, is what was meant by the words “further development”. This in my respectful view must be determined in accordance with the customary rights of ownership of the Plaintiff. In other words, their meaning must be construed so that they are consistent with the rights of ownership of the Plaintiff. In so doing, the ordinary and plain meaning of those words should be applied. The Oxford Advanced Learner’s Dictionary of Current English defines “develop” as inter alia, “(cause to) grow larger, fuller or more mature, organized; (cause to) unfold; use (an area of land) for the building of houses (or shops, factories, etc.) and so increase its value”. And development as: “developing or being developed (all senses); new stage;”. In the context of this case, the use of the words “further development” connotes the meaning of growth and expansion, or new activity or use being put or applied to the land. That must necessarily include the right in making decision as to what should be done on his land, what is permitted and what is not. Further development thus must necessarily include the construction of new houses or buildings on new areas of land, the making of new gardens in new areas of land and anything to do with further expansion, growth and use of land, which had not been previously used by the Defendant. In such instances, permission must be obtained. It might also include any new business activity, which the Defendant and his people might want to engage in.

Fr. Ngalihesi submits that the activities complained of by the Plaintiff are normal activities, which are necessary for any community to survive, and function and therefore it is not necessary for them to get permission from the Plaintiff. Unfortunately, I had already highlighted in this judgment that the rights of the Defendant to reside or continue in occupation in Aranga land is uncertain. What exactly are their rights in custom to reside in Aranga land and the extent of those rights? Perhaps if those rights can be better articulated the question as to what are normal activities could also be better answered. For our purposes, it would seem to me that to repair and maintain their existing homes and buildings and be able to use their existing gardens, fruit trees and coconut plantations, fall within the definition of normal activities. The Plaintiff has not sought to dispute the rights of the Defendant to repair their homes, or their rights of movement, or the rights to use water or their gardens around that area. But when the Defendant seeks to do something beyond the existing areas of land currently occupied or inhabited and commences new business activities, permission must be obtained.

In essence, although the customary rights of the Defendants perhaps has not been satisfactorily articulated, it would seem to me that plain common sense must prevail and be applied when the Defendant wants to carry out any new activity, business, erect any new buildings, make new gardens or whatever on the Plaintiff’s land. Whether it is to improve the quality of life in the village, or normal expansion of village life due to increasing population and pressure on the land, but if it touches on new areas of land in Aranga land, permission must be sought. The determining factor is that the Plaintiff owns the land on which the Defendant resides. The rule therefore must be, if unsure ask. Whether the Defendant likes it or not, he is stuck with the final court decision and has to comply. It appears that all that the Plaintiff is seeking from the Defendant and his people is due recognition and respect as the landowner in custom over said land.

Fr. Ngalihesi had suggested that this Court establish an arrangement for purposes of facilitating a smooth line of communication between the parties, which would enhance peaceable co-existence. Unfortunately, I am of the view that that is unnecessary at this stage. It seems to me that the Defendant has not taken any initial step towards establishing any such arrangement. There is no evidence before me to show that the Defendant had taken steps in consulting, talking to and discussing with the Plaintiff concerning any of the activities complained of. This Court will be prepared to assist but only after the Defendant had taken the initiative and can show to this Court that it could not get anywhere with the Plaintiff. I have said the initiative must come from the Defendant because as far as ownership of the land is concerned it is vested in the Plaintiff. This is not a complicated matter. It is a simple matter for the Defendant to see the Plaintiff and make such arrangements that are suitable for purposes of setting up a smooth line of communication so that they do not breach the customary rights of ownership of the Plaintiff. The Plaintiff doesn’t come across as a very difficult, harsh, selfish or hard man. The requirement that permission must be sought from the Plaintiff is not a new right granted by the MCLAC but a right that stems from his right as the owner of Aranga land. I find thus that the three activities mentioned by the Plaintiff, to be further developments and that permission had not been obtained.

Has Trespass been committed?

In so far as the activities complained of have amounted to an unjustifiable interference with the possession of the land of the Plaintiff there can be no dispute. No permission had been obtained from the Plaintiff in the construction of the houses, copra dryer and making of new gardens. This has not been challenged on evidence before this Court. It would have been but a simple exercise for the Defendant to ask and permission might very well have been given. This case would then have been unnecessary. But the Defendant might say, what if permission is refused. I think there are a number of things the Defendant can do, one of which is, if he feels that permission is being withheld unreasonably in the circumstances of his case, he might see a lawyer for legal assistance. I am satisfied the tort of trespass had been committed on the land of the Plaintiff and he is entitled to claim for damages to be assessed in chambers if not agreed.

Conversion

This tort was pleaded but little evidence had been adduced in support and accordingly I am satisfied it should be dismissed.

Other orders

No submissions had been made as to what should be done to the houses that had been constructed without permission and the gardens that had been made other than damages and so I do not feel I can make any further orders in respect of those matters. If any other matter should arise then they can be dealt with in chambers. As to the copra dryer, the Plaintiff has asked that its use be restrained. That is granted but if the Defendant should wish to dismantle and retrieve the copra dryer he should be allowed to do that. Of-course it may be open to the Plaintiff to consider charging reasonable rental for the use of the copra dryer in his land.

On the issue of costs, the Plaintiff must have his costs in this case.

ORDERS OF THE COURT:

1. ENTER JUDGMENT FOR THE PLAINTIFF FOR TRESPASS WITH DAMAGES TO BE ASSESSED IN CHAMBERS IF NOT AGREED.
   
2. DISMISS CLAIM FOR CONVERSION.
   
3. RESTRAIN USE OF COPRA DRYER BUT SUBJECT TO THE RIGHT OF THE DEFENDANT TO HAVE IT DISMANTLED AND RETRIEVED.
   
4. PLAINTIFF’S COSTS TO BE PAID BY THE DEFENDANTS.
   

THE COURT.