Kolombangara Forests Products Ltd v Alezama [2011] SBHC 4; CC329 of 2007 (24 February 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Goldsbrough J)

BETWEEN:

KOLOMBANGARA FORESTS PRODUCTS LIMITED
Claimant

AND:

REUBEN ALEZAMA
First Defendant

AND:

BEVERLY ALEZAMA
Second Defendant

AND:

ATTORNEY-GENERAL – (Representing the COL)
Third Defendant

AND:

ATTORNEY-GENERAL – (Representing the ROT)
Fourth Defendant

Date of Hearing: 25 and 26 October 2010
Date of Judgement: 24 February 2011

Radclyffe A. for the Claimant
Tagini P. for First and Second Defendants
Firigeni R. for Third and Fourth Defendants

JUDGMENT

1. By claim filed 4 July 2007, amended on 27 September 2007 the claimant seeks damages for trespass and immediate possession of land used and/or occupied by the first and second defendants and their family members and associates. The land is within Parcel Number 081-003-106 on Kolombangara Island in the Western Province.
   
2. The Commissioner of Lands was joined as 3rd defendant on 1 August 2008 on which date the Registrar of Titles was also joined as 4th defendant.
   
3. In pleadings the 1st and 2nd defendants admit the existence of a lease in favour of the claimant, but rely upon an overriding interest as persons in actual occupation of the land pursuant to section 114 (g) Land and Titles Act [Cap133].
   
4. Evidence for the claimant came in the form of sworn statements and oral testimony from Mayson Nesa, Ruth Liloqula and Haelo Pelu. Evidence for the 1st and 2nd defendants came from Reuben Alezama.
   
5. The evidence concerning the grant of a fixed term estate to the claimants on 5 December 1990 is not in dispute. The claimants, it is not in issue hold that FTE in parcel number 081-003-106. The 1st and 2nd defendants merely assert that they have a section 114 (g) overriding interest.
   
6. The evidence of that overriding interest comes only from the 1st defendant. His evidence is of occupation of an area of land, of being granted what is referred to as a temporary occupation licence by the Commissioner of Lands for an area of land, of planting trees and otherwise occupying an area of land and of making application to the Commissioner of Lands for a Fixed Term Estate himself.
   
7. As it is admitted that the claimant has legal title to the land under question and that it is only since the 1st and 2nd defendants claim an overriding interest that the case is before the court, the onus in the first instance rests on the 1st and 2nd defendants to demonstrate their overriding interest. For the evidence of that overriding interest is with them.
   
8. The 2nd and 3rd defendants do not agree that the grant of a TOL in 1999 assists the 1st and 2nd defendants in their claim. They also do not agree with the assertion that the 1st and 2nd defendants have any overriding interest under section 114 (g).
   
9. The land was once customary land, but it was converted a long time ago and the rights to it were vested in Levers in 1953. In 1990 it was vested in the claimants. The evidence of Reuben Alezama is that he occupies the land, firstly as he has been working the land by planting trees, has occupied the land for three years under the authority of a TOL and now has a house there. His evidence of building a house is from after the 2007 tsunami.
   
10. There is evidence from the 3rd defendant that the TOL relates to an area of land outside the FTE 081-003-106. There is evidence that, in relation to the planting of trees, the planting was under a contract to perform planting for which the 1st defendant or family members were paid. That evidence is in the form of one contract and one payment acknowledgement where the original contract was not available.
    
11. It is clear from the evidence presented that the 1st defendant has confused one area of land, that which he previously occupied under his 1997-9 TOL and the Parcel Number 081-003-106, for they are not one and the same. His evidence of occupying the larger area, larger than that is referred to on an exhibited map as L54 and L56 he says he developed as a plantation without a TOL. The evidence of development as a plantation must be considered in the light of the evidence of a contract to plant trees and evidence of payment for that work. The evidence of the contract and payment appear at pages 29-31 of the trial book.
    
12. An overriding interest under section 114(g) is that of a person in actual occupation at the time of the grant of an FTE save where the interest is not disclosed after a request is made. In 1990 at the time of the grant the only alleged occupation was through planting and development of a plantation, not a residential occupation. Whilst there is no evidence from prior to 1997 of payment for such work, there is evidence of such payment in 1997. That tends to suggest that the work was not done other than for payment and cannot therefore form the basis for a claim of actual occupation.
    
13. There is evidence from the 1st defendant that various promises were made to him by persons in apparent authority. He appears to have the benefit of promises made by his Member of Parliament, various officers within the Lands and Valuation Departments, officers form the Colonial Government and others. All of these promises have resulted in nothing. The land, taken in 1953 has never reverted to the 1st defendant. He is left with trying to establish actual occupation and therefore an overriding interest and regrettably he is not in a position to do so.
    
14. As a result of his evidence and the submissions made by his counsel it became apparent that steps had been taken as a result of the 1st defendants continued representations to the various authorities to get what he regarded as his land back. One of those steps was the production of a land survey. After inquiry it became clear that this survey is still in existence. Given the opportunity to see it, neither the claimant nor the 1st and 2nd defendants seek to rely upon it. As it is not relied upon by any party to the case the court has not seen it, even though it was referred to by the 1st defendant as coming into existence in support of his notion that he should have Parcel Number 081-003-106 somehow returned to him.
    
15. The court is by no means satisfied that the 1st and 2nd defendants have established that they had, at the time of grant of the FTE in Parcel Number 081-003-106 to the claimant, an overriding interest as defined in section 114 (g). In that event the claim for immediate possession of the land is successful.
    
16. An order is made that the 1st and 2nd defendants deliver up possession of that part of Parcel Number 081-003-106 which they and/or their family and associates occupy, an order is made restraining them from re-entering that land. An order is made for damages for trespass, those damages to be assessed in the event that the claimant still seeks to recover those damages. Costs of the claimant and the 2nd and 3rd defendants will be paid by the 1st and 2nd defendants, such costs to be agreed or taxed.
    

Dated this 24th day of February 2011.

GOLDSBROUGH J