Holo v Mapo Development Company [2013] SBHC 65; HCSI-CC 92 of 2011 (11 June 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 92 of 2011.

BETWEEN:

LAWRENCE HOLO and MASON WATE
Claimant

AND:

MAPO DEVELOPMENT COMPANY
First Defendant

AND:

PACIFIC VENTURE (SI) COMPANY LIMITED
Second Defendant

Date of Hearing: 3rd June, 2013
Date of Judgment: 11th June, 2013.

Mr. A Pehu for the Claimants.
Mr. J Keniapisia for the Defendants.

JUDGMENT

Faukona J: This claim comprises of joint and several damages against both Defendants for trespass but limited to SBD$1,000,000.00; and for damages in the sum of SBD$549, 573.00 against the 1st Defendant.

2. The facts that give rise to the claim can be summarising as; that the Claimants claim that their tribe has ownership right over Urisuhu customary land in South Malaita. Trespass onto that land was alleged to have occurred in 2009 and 2010 by the Defendants.

3. The 1st Defendant is a registered business owned by several others including Mr Ahukela and Mr John Wate; and a holder of felling licence No. A10415 issues by the Commissioner of Forest.

4. The 2nd Defendant is a Company incorporated in Solomon Islands and carrying on business of felling and exporting logs under the felling licence of the 1st Defendants. At the time of alleged trespass the logging operation was carried on concession areas in South Malaita including in particular Rorahiru concession land.

5. Towards the end of 2010 while carrying out logging operations on Rorahiru concession land the Claimants disputed the operations claiming trespass onto their Urisuhu land in a close vicinity area, and fell trees and exported from that land.

6. The Defendants logging operation had since the ceased from disturbances caused by the Claimants.

Case for the Claimants:

7. The Claimants' claim is for trespass and conversion of trees. The Claimants alleged that the Defendants trespassed onto their Urisuhu land felled trees that and were exported from the said land. The trespass was alleged to have occurred because Rorahiru concession land shares a common boundary with Urisuhu customary land.

Case for the Defendants:

8. The Defendants deny any trespass onto customary land called Urisuhu. They deny felling and extracted trees from that land. And also deny causing any damages to Urisuhu land and its environment.

The issue:

9. The issue is whether a customary land known as Urisuhu exists, and if so, has the Defendant trespassed therein and caused damages.

10. The parties conceded, for trespass to become an offence enforceable by law of tort three ingredients ought to be proved. The first is right of ownership and possession. The second is an unauthorized entry and third is action by damages.

Right of ownership/possession:

11. For trespass to land be made out and which is enforceable under tort it has to be established that the person whose land was trespassed onto has the right of ownership. Trespass to customary land is a wrong against ownership rather than possession and title. Though at almost all circumstances possession is obviously subsumed by the existence of title or ownership.

12. Trespassing or unauthorized entry must be effective, substantial and deliberate,[1] meaning the trespasser either knew that he was entering or was reckless as to whether this was so. It is important, at this juncture that boundaries of the land must be distinctive and or unobstructed.

13. To proof the first element the claimants submits that they own Urisuhu customary land by virtue of the two Chiefs determinations which were in their favour. More important and pertinent to this case was the second determination on 10th November 2010 which directly involved the Claimants and Mr Ahukela who with others owned the second Defendant company.

14. Mr Ahukela by his sworn statement denies trespass, or damage to any property or tree within customary land known as Urisuhu. There is no piece of land by that name within Rorahiru tribal lands of which they have concession and had felled trees.

15. Mr. Ahukela also describes the chiefs Panel which made the decision as illegitimate and the decision they made was invalid. His reason for that is that because the panel is not recognized by the council of Chiefs of louatowa paine and haitataimwane canoes.

16. There are three aspects of the Chiefs determination. One is the composition of the panel, second is the function of the chiefs and third is the actual determination. In general circumstances one option whereby which a local Court may hear and determine customary land is expressed by s.12 (1) (b) which states that Local Court may determine customary land issue having been satisfied that all traditional means of solving the dispute have been exhausted. Simply put, if the chiefs could not able to solve the dispute because for the reason that one party did not appear then the chiefs must refer the matter to the local Court with full explanation of its reasons. In my opinion, the section calls for compulsory attendance by all parties to the land dispute. Should one party failed to attend despite several notices, then nothing much the chiefs can do; their attempt to resolve the dispute fail, hence exhausted their tradition capacity. This leads on to the next question; can the chiefs proceed in the absence of another party? In my view no. They have to refer the case to the local Court directly.

17. In this case, the Chief had determined the ownership of Urisuhu customary land in favour of the Claimants in the absence of Mr Ahukela. By convention and practice Mr Ahukela should take the next step by referring the case to the Local Court. Mr Ahukela refused to take that step and affirm contended that the constitution of the panel of Chiefs was not appointed by the council of Chiefs of the area. In fact, there is material evidence that the Council of Chiefs disqualifies the decision made by the panel on 10th November, 2010 and describes it as invalid. Timely to say, the constitution of any panel of chiefs can be recognized by the definition is Section 11 of the Local Court Act which states those chiefs or other traditional leaders residing within the locality of the land in dispute that are recognised by both parties.

18. The argument by Mr Ahukela may be valid but would not move the issue of determining ownership forward. Already there were steps taken to invalidate the Chiefs determination by the Council of chiefs which is inappropriate. What remains is that Mr Ahukela could now file in the Malaita Local Court a land dispute regarding the ownership of Urisuhu customary land. If nothing is done then that task is still outstanding. Meantime the decision of the chiefs on the 10th November, 2010 stands.

The issue of trespass:

19. The issue of trespass cannot be adequately determined where the boundaries of the subject land are not well defined. The Claimants rely on their map which carry some similar in longitude and latitude as to that of the map produce by the Defendants. Longitude and latitude are lines that run vertical and horizontal on the world map. It is like a birds eye viewing the entire globe. To identify a small portion of land on a tiny island in the Pacific, given a wider perspective of the entire globe, is difficult to identify, a dot may be. The best solution is to draw a sketch plan of the customary land with demarcation marks and features that marks the boundaries on the ground. In this case, there is nothing and the existence of Urisuhu land remains to be identified.

20. The claimant also rely on the chiefs decisions which were in their favour that they own Urisuhu customary land. The problem with the chief's determinations is that they failed to identify the physical demarcation boundaries of Urisuhu land, as close as possible to have a common boundary with Rorahiru customary land. From the determinations one may assume that there is existence a customary land called Urisuhu, but on what location or side of Rorahiru customary land does it lie. It's an issue, which the Claimants have to establish. In this case, they failed to do so.

21. It appears that the difficulty the Claimants face in establishing the boundary of Urisuhu customary land leads to another difficulty in establishing damages done to trees and environment as they alleged within the claim land. The Claimants alleged that the Defendants had trespassed into Urisuhu land and felled trees for export. They rely on documentary evidence at pages 66 – 67 of the trial book. The document is supposed to be the calculation of species of trees extracted from Urisuhu land. The difficulty with the document is the question of its authority. It was drawn by one of the Claimant Mr Lawrence Holo; and not from an independent source.

22. On normal circumstances such reports of tally and species of trees are drawn by Forestry officer or anyone authorized by the Commissioner of Forest. The document or report lacks authenticity and not draw by an independent person. Secondly, the maker Mr Holo was not called to verify the report. Thirdly, the tally measurements of logs are in centimetres. The shortest is 70 centimetres and the longest log is 230 centimetres. Those measurements fall below standard length of logs for export. May be they are purposely for furniture making, however, that has not been verified by any evidence at all.

23. I noted the Counsel for the Claimants admits there are discrepancies in the report, which is out of proportion. On the face of it has to be accepted as it is. Such a document is far from proving any trespass to land resulted in damages and extraction of logs. It is far from being accepted. The logs are two short. In addition, no photographs taken of any or machinery present in the land alleged to have been trespassed into. Lack of evidence cannot proof any trespass and damage.

24. Having said that I am able to conclude that there is no evidence at all in the sworn statements or oral in Court which the Claimants adduce or witnesses to prove and establish the boundaries of Urisuhu land which they claim. Likewise, there is no evidence to establish the Defendants were without consent of the Claimants trespassed onto Urisuhu land and detrimentally caused damages to environment and extraction of logs. With that I must dismissed the claim with costs.

Order.

1. The claim for trespass and damages dismissed.

2. Cost is paid to the Defendants.

The Court.

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^[1] Collins [1972] EWCA Crim 1; (1973) QB 100.