Boape v Nume [2017] SBHC 42; HCSI-CC 465 of 2016 (7 December 2017)

GEORGE AND ROSE -V- TITUS NUME
BOAPE (Defendant)
(Claimant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.465 of 2016

Date of Hearing: 13 September 2017
Date of Judgment: 7 December 2017

D. Marahare for claimant
L. Kwaiga for defendant

Declaration of rights concerning ownership of certain portions of land originally “purchased” from custom owners

Brown J:

These proceedings come by way of Category A Claim seeking the following:
“1. A declaratory order to the effect that the Claimants are entitled to the use and enjoyment of the portion of land located within the main Rocky Hill land currently occupied by the claimants and to develop it without any interference from the Defendant, his servants or agents;
2. A permanent injunction restraining the Defendant, his relatives invitees servants or agents from interfering whatsoever in any with the occupation, development of the said land by the Claimants and anyone acting under their authority.
3. A declaratory order that the defendant and anybody acting under his authority are estopped as a matter of law from asserting any claim of right of ownership.
4. Costs of and incidental to this action;”
On the 2 June 2017 I refused an application to strike out the claim. For by statement of case the claimants rely on the legal effect of various decisions and awards claiming the defendant is precluded from denying their right of ownership (presumed by clause 3 of their claimed orders).
The claimants recited in their statement of case the purchase of the main Rocky Hill land by one David Dawea Taukalo from the original customary landowners, Jonas Kapule and Philip Malu, in three parcels in March 1970 and a further parcel from Ishmael Sangoke in 1984, and yet a further portion from Clement Mela.
David Dawea Taukalo died on 5 January 1993 and by his will, left the land to Vincent Dawea and his brother, Alfred Dawea. Both permitted their sister, Rose Boape and her husband, George Boape to purchase part of Rocky Hill land and to construct a permanent residence. Since 2002, the two claimant, George and Rose Boape have “developed the portion of land purchased from Vincent and Alfred Dawea”^[1]

The claimants detail “particulars of unlawful interference”^[2] by the defendant his son and daughter, and by “using the chiefs and community elders to stop the claimant from developing the land the claimants have been occupying”.
As well as the recital of the purchases, as evidence of the claimants ownership of the land, they rely on the effect of the order of the Registrar of this Court in CC 47 of 2002 as giving by res judicata, their standing as owners, of this particular land contrary to the claim in denial by this defendant, Titus Nume who was a named party [the “defendant”] to those proceedings by Vincent Dawea, [the “plaintiff”], the predecessor in title, as it were, to these claimants. That order was as follows:
“ The Defendants having failed to file and deliver further and better particulars of defence as ordered by the Court on 16^th August 2002 it is hereby ordered as follows:-
1. The defence filed on 9^th April 2002 is struck out.
2. Judgment is entered for the Plaintiff as follow:-

1. It is declared that the Plaintiff is entitled to the use and enjoyment of Rocky Hill Land at Lata Temotu Province and to develop it or dispose of it or any part thereof without interference from the Defendants, their servants or agents; and
2. The Defendants, their servants or agents are hereby restrained from in anyway whatsoever interfering with the development of the said land by the Plaintiff or anyone acting under his authority.

3. The Defendants to pay damages for trespass to be assessed by the Court.
4. The Defendants to pay the Plaintiff’s costs to be fixed if not agreed
Dated the 19^th day of September 2002. Registrar of the High Court

The defendant’s case relies on the fact that the land claimed has always been and is customary land. Whilst there may be no real issue over the alleged payment and offers to repay, the continued use and occupation of the land may reflect the claimant’s case. No purported transmission by will of the land to the Dawea’s can affect the nature of the customary land, by somehow distinguishing the land, from that type of land originally given the late David Dawea Taukalo. For the claimants argument begs the question, by assuming as true what you are trying to prove. The claimants’ premise they set out to prove, is that they are the successors in title to persons who “bought” the land and consequently they use the fact of the Will, [the unproven premise being the “ownership” of the late David Dawea Taukalo] as a basis to say they now “own” the land.

It is accepted the land was “customary land” when “brought” by the late David Dawea Taukalo. It cannot change its nature unless in accordance with Part V of the Land and Titles Act for that part is the only way land may be taken from customary owners. By Section 60;
“Notwithstanding any current customary usage prohibiting or restricting such transaction, customary land may be sold or leased to the Commissioner or any Provincial Assembly in accordance with the provisions of the this Division.”
The factual situations in s.60 have not arisen in this case. The land “purchased” by the late David Dawea Taukalo remained customary land.
By Section.239 (1) of the Act,-
“The manner of holding, occupying, using, enjoying and disposing of customary land shall be in accordance with the current customary usage applicable thereto, and all questions relating thereto shall be determined accordingly.”

Where disputation arises, as has happened in this case, s. 240 of the Act provides,-
“Subject to the provisions of this Act, every transaction or disposition of or affecting interests in customary land shall be made or effected according to the current customary usage applicable to the land concerned.”
The defendants quite rightly point to the provisions of s.254 of the Land and Titles Act whereby the Local Court is imbuded with exclusive jurisdiction “in all matters and proceedings of a civil nature affecting or arising in connection with customary land” (other than circumstances which do not apply here).

The claim of Title, as it were, pleaded by the claimants leading to their “ownership” and the premise that they have exclusive right to determine, use, and absolute control both now and into the future, is again based on that assumption as true what they seek to prove. The Land and Title Act does not support this assumption.
No reliance, as is made here, on the supposed transmission of land by way of benefit under the will of the late David Dawea Taukalo can change the underlying nature of the land which has remained “customary land” throughout these various acts by the Taukalo family.
[By s.2 (3) and (4) of the Will, Probate and Administration Act, no purported disposition of “customary land” may be effected]

The defendant argues Rocky Hill remains customary land. I agree with that concept for the law support the defendant’s argument.

An underlying basis of argument of the claimants goes to the claim of right “as owners” of the northern portion of Rocky Hill and is premised by the effect of a default judgment given in High Court cc 47 of 2002, set out above.
This judgment is claimed by these two, George and Rose Boape as a constitutive legal act founding “ownership” in the plaintiff Vicent Dawea so that, as successors in title (as it were) by purchase, these two claimant now rely on the effect of the judgment as a “res judicata” preventing Titus Nume (or those other) from denying ownership rights in the claimants. As indicia of “title”, the default judgment presumes to award “damages for trespass” [by a presumption of ownership] to the plaintiff Vincent Dawea.

A judgment of this kind, in default of defence, is an order of the court. It may be argued it gives the existing legal relations the status of a res judicata.^[3]

This judgment however, purports to find “damages for trespass” or right in the plaintiff tantamount to an exclusive right normally understood to be that of an “owner” in default of defence. The judgment, then has been granted without trial or evidence on matters going to the question of “ownership” and in these circumstances, may not be accepted as one finally determining the rights of the parties. Judgment in the circumstance of cc 47 of 2002 purporting to determine ownership without proper argument or by default of pleadings may not give rise to the claim of a “res judicata”^[4]

I am accordingly satisfied the land was and remains customary land. Whilst these claimants may have rights of occupation subsisting, the Claim may more properly be made to the local court in the constituency. As the Land and Titles Act, by s.254 provides for exclusive jurisdiction of a local court in all matters and proceedings of a civil nature, the local court may entertain claims for particular rights to the land, and in accordance with custom at this time (or when heard) determine such right.

These cases often arise since the concept of “ownership” of land appears to have strengthened into some de-facto right concomitant with that of a “registered owner of a fixed term estate or grant in respect of registered land” when by law no such concept may be conceived where customary land is concerned. Whilst the description of “usufruct” has not gained acceptance in this jurisdiction, it does suggest a better way of seeing customary rights by individuals with-in a tribe, to use certain portions of customary land of the tribe or group. For “usufruct” means “the right of enjoying the use and advantages of (the tribes) property, short of destruction or waste of its substance.”^[5]
It would seem the description of usufructry rights in custom would avoid the misuse of “ownership” in very many cases involving arguments over customary land and quickly bring parties to a realization their rights stem from the tribe, not as individuals, to customary land.

I accordingly direct the appropriate local court to hear and determine rights of these claimants. The defendant Titus Nume (or his appointee) may stand for the tribe or group claiming control of Rocky Hill land.

The proceedings are permanently stayed.
The defendant shall have his costs of these proceedings.

__________________
BROWN J

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^[1] Statement of Case, paragraph 7
^[2] Statement of Case paragraph 13(a) – (b)
^[3] Punton v Ministry of Pensions and National Insurance (no 2) per sellers LS: (1964) 1 WLR 26, (1964) 1 ALLER 448,CA
^[4] Per Buckey and Searman L.J.J. in Wallersteiner V Moir (1974 1 WLR 921, (1974) 3 ALL ER 217, Per Megarry VC in Helzger v Dept of Health and Social Security (1977) 3 All E.R. 444,451.
^[5] Fowlers Concise Oxford Dictionary, 4^th edit.