Kalola v Buare [2015] SBHC 37; HCSI-CC 44 of 2012 (12 May 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 44 of 2012

BETWEEN:

JOSEPH AVELINO KALOLA
(Representing the Rorau Landowners)
Claimant

AND:

PAUL BUARE
First Defendant

AND:

CE FORESTRY INVESTMENT COMPANY LIMITED
Second Defendant

Date of Hearing: 12 August 2014,
Land Survey: 16th and 17th September 2014,
Submissions; 6th March 2015 and 19th March 2015

Date of Judgment: 12th May 2015.

Mr P. Tegavota for Claimant
Mr J. Zama for 1st and 2nd Defendants

JUDGMENT.

Faukona PJ: A claim in category C was filed by the Claimant on 20th February 2012. The Claimant says he is the customary land owner of rorau customary land as determined by the Shortlands Local Court on 10th June 1987 in Land case No. 9 of 1987.

2. The first Defendant is the son of Peter Buare who lost the land case to the Claimant, therefore is bound by that decision.

3. In July 2011, the first Defendant without the consent or permission of the Claimant permitted the second Defendant to enter rorau customary land and cleared part of it and constructed living quarters.

4. The Defendants say they did not enter into the portion owned by the Claimant, but entered into an area between rarou point and kengerai point, Lot No. 320. They admitted building two temporary houses and a kitchen within the first Defendant's coconut plantations. The Defendants further say that there was a peg mark (still visible) fixed at rorau point which separates the land used by the father for the first Defendant and the Claimant. Because the Claimant does not know the peg mark, hence, wrongfully claim that the Defendants were trespassing. The Defendants further deny the land own by the Claimant does not run parallel to LR 156.

5. The issue is a question of identifying the true boundaries of the Claimant's land. Having done so assessment be made as to whether the spot the Defendants entered into the land is within the boundaries the Claimant claims?

6. The record of Shortlands Local Court show the land the Claimant won. There is a sketch plan attached to the decision. In Court the former Local Court Clerk for Shortlands confirms the distance from point JAK 1 (stamp of an old tree) and JAK 2 (a stream) is measured at 460 yards. The Defendants argue that 460 yards should end at TS2, and not at JAK1

7. If the boundary attested by the Defendants is true then their entry into the land and perform certain activities was done within Lot 2 of LR 320 which the first Defendants own- see map Exh FR3 P. 52 of the trial book, purple colour.

8. At closure of trial parties were ordered to conduct independent survey to work out the distance between JAK 2 and JAK 1. It was done and a report was filed to that effect as Exh. "JK" attached to Claimant's sworn statement filed on 21st January 2015. The survey was not fully completed according to the report but significant distance was actually surveyed and measured. The distance between TS 2 and JAK 2 was measured at 292.104 yards. This simply means that 168 more yards before actually come to JAK 1, the boundary measured by the Local Court.

9. The measurement finally resolves the argument that the Local Court boundary shown in sketch plan from JAK 2 to JAK 1 is true. And that was the boundary the Local Court decision affirmed.

10. There is nothing in contrary to urge me doubt the evidence. The distance between JAK 2 and JAK 1 is 460 yards (roughly) as indicated by Local Court, and run parallel to each other until they meet LR 156. All the activities claim to have been entertained by the Defendants are within that boundary therefore is trespass which they are obliged to meet the damages incurred, and payable to the Claimant.

Order:

1. Order payment of rentals for the use of Claimant's land from July to December 2011 is assessed.

2. Order payment for damages for trespass to Claimant's land be assessed.

3. Cost is paid to the Claimant by the Defendants.

The Court.