Daiwo v Lano [2011] SBHC 15; HCSI-CC 367 of 2007 (5 April 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 367 of 2007

BETWEEN:

JOSEPH DAIWO and MICHAEL DAIWO
(Representing members of the Nouope Tribe) Claimants

And

MICHAEL LANO
(Trading as Madalu Forest Resource Products First Defendant

And

ATTORNEY GENERAL
(For Temotu Provincial Assembly) Second Defendant

And

MEGA ENTERPRISES Ltd Third Defendant

And

ATTORNEY GENERAL
(For Commissioner of Forest Resources) Fourth Defendant

Mr Marahare for the Claimants
Mr Afeau for the Third Defendant
Mr Damilea for the Attorney General
The First Defendant not appearing or represented

Date of Hearing: 1st March 2011
Date of Judgment: 5th April 2011

Judgment

1. By a Further Amended Claim filed 11th August 2009 the Claimants ask for a declaratory order the First and Third Defendants trespassed into Nea land, damages for conversion of timber, damages for trespass and environmental degradation and consequential orders. As against the Second and Fourth Defendants, the Claimants ask for declarations that; licence No. A10309 was null and void, no timber rights hearing took place and the determination published on 13th March 2005 was not valid. It now appears the claim against the Second and Fourth Defendants is not being pursued. The First Defendant took no part in the case.

2. Amended Agreed facts were filed on 29th October 2010 and are found at pages 69 and 70 of the court book. They simplify the issues quite considerably. They revolve around the licence referred to above. There were actually two licences with the same number. The sworn statement by Mr Moveni the Commissioner of Forests ('the Commissioner") filed on 27th September 2010 explains what happened. In short, a licence was issued in 2003. It was limited in geographical extent. The First Defendant then applied to increase the area to be logged. Eventually a second licence was issued but the first one was not surrendered or cancelled as apparently it should have been. The second licence bore the same number as the first. A third licence was issued to the First Defendant (No. A10607) but it has no bearing on this case and can be ignored. There is no plan attached to the second licence, the geographical area it covers is described by reference to different areas of customary land [1].

3. It is agreed timber rights hearings took place. There is no dispute hearings took place in respect of both the first licence and the second licence. It is agreed that as a result of the hearings a determination was published (on 18th April 2005) and timber rights agreements were eventually entered into [2] . Unfortunately no plans appear to be attached to the agreements.

4. As mentioned earlier, the Claimants in their submissions confirm that they have abandoned their claims against the Second and Fourth Defendants and do not challenge the validity of the felling licence A10309. They say they did not enter into any timber rights agreement with the First Defendant.

5. The first named Claimant Joseph Daiwo points to his signature on the agreement (page 186). He says it is not his signature. I have no reason to disbelieve him. I have no evidence on the point and I am no handwriting expert, but the signature against Mr Daiwo's name appears to be that of Stanley Bade and is signed pp (or per pro). There are two other signatures which are signed thus. The First Defendant took no part in these proceedings and so there is no evidence at all to explain how those signatures came about. What is known is that at the timber rights hearing John Lee Bade was accepted by the Province and all those who attended as "representing Nea Land holding groups". It does not appear to be in dispute that the land which is subject of this claim is within Nea land. The Claimant had a little difficulty accurately identifying "his" land but on balance it does appear he is claiming ownership of blocks 19 and 20 and it is generally accepted blocks 19 and 20 are within Nea land.

6. The Third Defendant entered into an agreement with the First Defendant on 27th June 2005. The agreement is what is commonly called a technology and management agreement. Based on that agreement the Third Defendant entered blocks 19 and 20 (amongst other areas) and started logging operations. There is confusing evidence about the logging operations actually carried out. It would appear from the sworn statement of Marvin Baekisapa (starting at page 75 of the court book) an application for approval of the coupe plan was submitted on 11th February 2007. On 22nd February 2007 approval was given. On 4th April 2007 that approval was withdrawn. All this can be seen in the letters exhibited as MB1, MB2 and MB3. In July 2007 the First Defendant writes to say logging operations in blocks 19 and 20, "are incomplete due to unsettled dispute between landowners". This is a clear admission by the First and Third Defendants that they have entered blocks 19 and 20 and have been carrying out logging operations. It does not amount to an admission of trespass.

7. It is settled law that trespass to land gives rise to damages without proof of damage. In other words, trespass is actionable per se. It is also fair to say there are few defences in law to trespass. There appears to be a different approach by the courts in England to those in Australia with regard to what can be described as trespass by mistake. The English courts are far less flexible than those in Australia when dealing with tortfeasors who claim to hold an honest belief they had the appropriate authority to enter someone else's land. I need not dwell on that because a crucial element in any claim for trespass to land is proof of ownership. For the claimants in any case to succeed and for the Claimant in this case specifically to succeed, ownership of the land must be proved. It must be proved to the requisite standard, namely on the balance of probabilities.

8. The defendants put the Claimants to strict proof of their claim that they are members of the Nouope Tribe of Santa Cruz which is the landholding unit and custodian of Naomola Nandir Manubu land. The Claimants simply say, "no one has challenged our ownership since time immemorial". Temotu Provincial Executive held a timber rights hearing and published a determination giving details of those persons it says were entitled to grant timber rights. I bear in mind what was said in Gandly Simbe [3], "It remains true to say that, in making a determination for the limited purposes of s.5C(3), it is no part of the function of an area council to decide questions of ownership of customary land in a way that is either binding or final in effect. It is one of the features of the statutory procedure under Part IIA that an area council is a tribunal, and not a court of record, or indeed a court of any kind whether of customary or common law. It has long been recognised that its determination gives rise to no guarantee that the contracting customary owners are the true owners". However, a decision has been made which does, in effect, challenge the Claimants ownership and there has been no appeal to the Customary Land Appeal Court against that decision.

9. The Temotu Provincial Executive determined that the persons lawfully entitled to grant timber rights over land held by the Nea Community land owning group were Simon Sovii, Barth Mede, Stanley Bade, Mathias Bade and John Lee Bade. Those persons, amongst others, did sign the Timber Rights Agreement with the First Defendant. The Claimants are not challenging the process leading to the signing of the agreement and the granting of the felling licence. As is clear from Gandly Simbe and other cases heard in the Court of Appeal since [4], the determination by the Provincial Executive is not conclusive proof or evidence of ownership but it is better proof than nothing at all. Until such time as the Claimants have some proof of their ownership in custom of Blocks 19 and 20, whether it be called Naomola Nandir Manubu land or something else, they cannot succeed against the Third Defendant. Furthermore, given the provisions of section 254 of the Lands and Titles Act [Cap. 133] I would have to point out this court does not have jurisdiction to decide who is the customary land owner of the land in question.

10. As the Claimants have not been able to show, on the balance of probabilities, they are the owners of the land, their claim based on trespass must fail. The claim is dismissed.

11. Normally costs follow the event. However, costs are entirely at the discretion of the court. In this case, the equity of the situation suggests there should be no order for costs.

Order

i) The claim is dismissed.

ii) There be no order for costs.

Chetwynd J

---

^[1] See pages 210 – 216 of the court book (and also RM 1 of the sworn statement of Reeves Moveni filed 27^th September 2010)
^[2] See pages 173 – 190 inclusive in the court book.
^[3] Gandly Simbe v. East Choiseul Area Council
^[4] See Majoria V. Jino and Ors Civil Appeal Case 36 of 2006; Veno and Ors v. Jino and Ors Civil Case 2 of 2004