Havimei v Sunway Ltd [2019] SBHC 25; HCSI-CC 217 of 2017 (22 March 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Havimei v Sunway Ltd
Citation:
Date of decision:	22 March 2019
Parties:	Jester Havimei v Sunway Limited
Date of hearing:	12 March 2019
Court file number(s):	CC 217 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:
Representation:	Mr. J Dudley for the Claimant Mr. J To’ofilu for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Environment Act, Forest Resources and utilization act
Cases cited:	Daiwo v Lano, Thabitia v Capital Construction

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 217 of 2017

JESTER HAVIMEI
Claimant
(Representing Elias Kodere Family)

V

SUNWAY LIMITED
Defendant

Date of Hearing: 12 March 2019
Date of Ruling: 22 March 2019

Mr. J Dudley for the Claimant
Mr. J To’ofilu for the Defendant

Ruling on Application to struck out claim

The claimant on behalf of his family filed a category A against the defendant now applicants on 18^th May 2017 seeking the following relief;

(1) General Damages for trespass;
(2) Unlawful Conversion of round logs ( $3,708,075.00 )
(3) Cost incidental to this proceeding on indemnity basis
(4) Any orders as deems fit by the court.

The claimant in his sworn statement filed on 20^thJune 2018 stated that Elias Kodere family had lived in Ghizunalapu Island since time immemorial had cultivated both root crops and commercial crops (Namely coconut) on the islands. He also deposes that he was appointed by Elias Kodere as the only custodian of the portion of land area in Ghizunalapu Island which was logged and destroyed by the defendant. He further deposes that the defendant entered the Ghizunalapu Island without conducting any Timber Right Hearing to operate on Ghizunalapu Island and destroyed cultivated root crops and commercial crops grown by him.

That the defendant entered the island to fell trees for logs without any proper legal process under the Forestry Act, Logging practices and/or the Environment Act generally.

The issues for consideration are clearly set out in the submission of counsel for the claimant and outline as follows;

(a) Whether or not the licence A10028 covers Central Barora Ite which Ghizunalapu is located?
(b) Whether a Timber Right hearing was conduct by Sunway limited to operate on Ghizunalapu Island as required under the FRTUA (Cap 40)
(c) Whether or not a Timber Right hearing made for West Barora Ite Customary Land by West Barora Ite Forest Resources Development Company is transferable to Sunway Limited for operation on Ghizunalapu Island.
(d) Whether or not the claimant is entitled to damages and conversion?

The evidence of the claimant was not disputed nor was the fact that the defendant entered the island and carry out logging operation.

The defendant however in its defence filed on 4^th October 2017 denied liability and said they were carrying out logging pursuant to a Technology Agreement signed between the licensee and themselves and were operating within the concession area.

The defendant admitted that it has no felling licence but avers they were working under the Licensee named West Barora Ite Forest Resources Development Co. licence number A10028. The defendant states that they are only a contractor by virtue of the Technology Agreement between the defendant and the licensee. That is something which may only be within the knowledge of the defendant and they should have consulted the licensee to apply to joint as party to the proceeding. They cannot put blame on the claimant that it should bring the action against the licensee and not them. Operating under a Technology Agreement with the licensee does not make defendant/applicant immune from been sued for trespass.

Since the evidence regarding the issues for determination was not in dispute I need not go through them in detail but will refer only to the first issue which I consider crucial to this case.

The first issue is the term of the licence. I had viewed a copy of the licence NO. A 10028 annexed as Exhibit JY1 to the sworn statement Jason Lee file on 14^th February 2018. The licensee clearly shows that the licence covers West Barora Ite Customary Land, Isabel Province. The evidence of the claimant states that Ghizunalapu Island is outside of the West Barora Ite Development Company concession area. The island is in Central Barora. That evidence was not disputed.

Counsel To’ofilu for the defendant in his oral submission questions whether the claimant has the locus standi to bring this action. He states that the claimant living on the land does not mean they own the land. He refer to the case of Daiwo v Lano [HCSI] CC No.367 of 2007 referred to by Faukona J in Thabitia v Capital Construction [HCSI] CC No. 332 of 2011 and in which His Lordship states where the issue of trespass to customary land arises in a litigation, the significant notion that comes to mind is the right to ownership to the land. And it is recognised and settled law trespass give rise to damages. Without proof of ownership, there can be no proof of damages.

I concur with his Lordship comments but I am also of the view that the locus standi to bring an action for trespass does not arise or depend only on ownership, lawful possession of land including customary land is enough to bring an action for trespass. In the present case, the claimant’s evidence was that he and his family had lived on the land and cultivate it from time immemorial. This means that his lawful possession was unchallenged thus he has the locus to bring this action. As a Solomon Islander, my knowledge of custom in relation to customary land is that uninterrupted occupation or possession of customary land from time immemorial is not only evidence of lawful possession but ownership as well. That is how people came to claim ownership or own nearly all customary land in our islands. They came, settle, cultivate, live uninterrupted and then claimed ownership of the land on which they settled.

On the materials before the court, I am satisfied on the balance of probability that the claimant has proven his claim. I gave judgment for the claimant and grant the orders sought. Order accordingly.

The Court
Justice E Kouhota.