Sira v Maemae [2007] SBHC 95; HCSI-CC 615 of 2005 (31 July 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 615 of 2005

FANETA SIRA

v.

WILSON LEDI MAEMAE AND OTHERS,
AND LINUS ITES AND JOHN ITEA

(Palmer CJ.)

Date of Hearing: 21st May 2007
Date of Judgement: 31st July 2007

Bridge Lawyers for the Plaintiff
E Saramo for the 1st Defendants
2nd Defendants not represented

Palmer CJ.

This is a claim for trespass to Ongo land and for a permanent injunction to restrain the first and second Defendants ("the defendants") from entering Ongo land and carrying out logging, teak planting and rice farming.

On 10th February 2007 an ex parte order was issued restraining the defendants, their servants and agents from entering Ongo land to carry out logging, teak planting and rice farming until further orders of the court.

The first defendants say that the plaintiff’s Writ of Summons should be struck off inter alia, on the ground that it constitutes an abuse of process in so far as it raises issues of customary ownership of land which this court does not have jurisdiction to hear. Mr. Saramo for the Plaintiff relied on the case of Joe Rody Totorea, Roeroe & George Ahukeni v Taiarata Intergrated Forest Development Company Limited & Bulecan Intergrated Wood International Pty Limited [2000] SBHC 35; HC-CC 204 of 2000 (8 September 2000) in which his Lordship Kabui J. expressed the opinion that a party should not come to the High Court for an interim injunction on the ground of trespass to customary land until that party had obtained a final decree of ownership between the disputing parties. Mr. Saramo says that in order for the plaintiff to maintain an action for trespass to land, he ought to show that he had some sort of title to the land. In the absence of any final court decree showing title over the land, the action should be struck out as an abuse of process and frivolous and vexatious.

Mr. Nori on the other hand submits that the plaintiff had come to court to seek the assistance of the court in this dispute. He says the defendants had entered Ongo land and felled trees without any timber licence or consent from the plaintiff. He says that the rightful owner of the Ongo land is the Ongo tribe of which the plaintiff is a member or representative of.

At the ex parte hearing before this court on 10th February 2007, I granted interim restraining orders on the grounds that there are triable issues before the court regarding the issue of ownership of Ongo land. The plaintiff had not merely raised claims of ownership rights over Ongo land but had taken the further step in protecting his claim of ownership by commencing legal proceedings.

The problem with customary land ownership in Solomon Islands is that in many instances there is lack of written evidence of ownership of land other than knowledge which landowners possess of their past history, including occupation and settlement locations, tambu and sacrificial sites, and any natural features identifying where their boundaries run. Often this knowledge is vested in only certain members of the tribe, such as chiefs, tribal leaders or elders, priests etc. Title of ownership as recorded in written form is absent in Melanesian society. Writing obviously is a recent addition to the culture though there may have been forms of writings or drawings known in some cultures to record events and land transactions. In some cultures shell money or certain items may be used and exchanged for the purchase or acquisition of land and used as proof of ownership or title to land. Title of ownership over customary land in most Melanesian societies does not exist in a registry office or some record book. Concepts of registration of titles or recording of claims of ownership in printed format were introduced under the British Administration through the enactment of laws and the application of common law principles and equity affecting land and property. That is not to say that concepts and rights of ownership did not exist amongst the local population. Concepts of ownership and usufructuary rights were in existence and in most instances reposited in the chiefs, tribal priests or leaders. This is why the fact there is vacant land does not necessarily imply it is devoid of ownership or title. In pre-colonial days land disputes which could not be settled amicably were resolved through tribal fighting etc. with the victor or stronger taking the contested area. Today disputes are resolved by process of the written law. The fact therefore a landowner does not have a written document demonstrating ownership over land cannot be a bar to the right to come to court for relief.

In this case ownership of certain tracts of land is in dispute. The defendants on one hand claim ownership over those parts they had entered and permitted logging activities, teak and rice planting to have taken place while on the other hand, the plaintiff says they had encroached upon Ongo land and thereby trespassed into his land. I note in the defence of the first defendants filed 13th July 2007, they dispute the membership of the plaintiff of Ongo tribe. Instead they claim to be the true members of the Ongo tribe and not the plaintiff. They say the plaintiff is a member of the Kwakwaru tribe and has no right over the said land. The first defendants also say that the area of land where rice planting had taken place is a different land called Burara land and not part of Ongo land. Further they say that members of the Ongo tribe (which they belong to) had consented for the logging activities to take place in Ongo land.

The plaintiff nevertheless not only asserts ownership but had commenced proceedings before the Chiefs within his locality. And having exhausted all means to have the matter settled by traditional means he has referred the matter to the Malaita Local Court. The Malaita Local Court however is yet to convene to hear this dispute. How long this delay will continue is uncertain.

That this Court has jurisdiction to determine questions of trespass over customary land cannot be disputed. The only hurdle lies in the fact that the dispute pending before the Malaita Local Court has to be resolved first before the matter of trespass can be finally determined. The defendants cannot deny that ownership claims which they may have assumed from the outset are now being challenged by the plaintiff in the appropriate forum. Those disputes should be allowed to be determined in the usual way.

To say therefore that a claim for trespass in this instance amounts to an abuse of process cannot be sustained. The first thing that comes to the mind of any landowner when there has been an intrusion into his land is to protect it. In pre-colonial days he would have to defend it by being prepared to fight for it. Today that is wrong and amounts to a crime, so he runs to the courts of the land to have the matter resolved. He runs to this court so that it can exercise its injunctory relief jurisdiction to aid the lower courts in having the dispute resolved. In the mean time the substantive issues will have to be stayed pending determination of the customary issues before the land courts.

I cannot accede therefore to the argument by Mr. Saramo that in claims for trespass to customary land there must first be a final court decree before a landowner can come to court. Yes a final court decree is evidence or proof of ownership but that is not the only form of evidence or proof of title in Melanesian society in terms of ownership of land. In some jurisdictions where the land is owned by the Crown and had been surveyed it would be easy to determine ownership and title. In Solomon Islands where only a small percentage of the land is owned by the Crown and the majority owned by indigenous tribes, only a small percentage of land is surveyed. The majority of land areas in the country remains un-surveyed and unrecorded in terms of title and boundary descriptions and so partly explains why land disputes continue to emerge whenever any development activity is planned.

In a jurisdiction where under the current dispute resolution process, land disputes take years to be resolved and are inter partes only, by the time a final determination is obtained, all the trees may have been removed and irreparable damage done to the forest and land. The winning party therefore may have nothing at the end of the day in terms of his forests and land.

This raises the question whether the interim restraining orders this court had imposed in February 2006 should continue or not. It is my respectful view they should continue until further orders or final determination of the outstanding issues in this case. This court clearly has jurisdiction to assist the lower courts in working towards resolving the issues of ownership over the disputed land through injunctive relief (Gandly Simbe v East Choiseul Area Council & Others Civil Appeal No. 8 of 1997 at 22, 23.). That is what this court has done in this instance until the substantive issues in custom have been resolved in the appropriate forums.

Orders of the Court:

1. Dismiss application to strike off the Writ of Summons as an abuse of process or is frivolous and vexatious.
   
2. Costs in the cause.
   

The Court.