Galo v Glengrow (SI) Ltd [2023] SBHC 119; HCSI-CC 393 of 2019 (6 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Galo v Glengrow (SI) Ltd
Citation:
Date of decision:	6 December 2023
Parties:	Alva Galo, Kenly Luxie, Lindon Solomon and others v Glengrow (SI) Limited
Date of hearing:	17 January 2023, 19 January 2023 and 20 January
Court file number(s):	393 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1 The claim is hereby dismissed accordingly. 2 The cost of this hearing be paid by the Claimants to the Defendant on standard basis if not agreed upon.
Representation:	Mr W Jonga for the Claimant Mr M Pitakaka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Nesa v Mas Sol Inv Ltd [2019] SBHC 8 , Thobatia V Capital Construction [2013] SBHC 108, Daiwo v Lano [2011] SBHC 15, Miana v Kalola [2019] SBHC 8,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 393 of 2019

BETWEEN

ALVA GALO, KENLY LUXIE, LINDON SOLOMON AND OTHERS
(Representing Galovarani Tribe)
Claimants

AND:

GLENGROW (SI) LIMITED
Defendant

Date of Hearing: 17 January 2023, 19 January 2023 and 20 January
Date of Oral Submission: 24 May 2023
Date of Judgment: 6 December 2023

Mr W Jonga for the Claimants
Mr M Pitakaka for the Defendant

JUDGMENT AFTER TRIAL

Faukona (DCJ).

1. A claim in Category B was filed on 12^th July 2019.The defendant file its defence on 29^th August 2019.
2. It is an undisputed fact that the Defendant owned Baram Glory 2 (a tug boat) and her barge Wayline 3, a dump barge.
3. Before the incident, on or about 31^st of December 2018, the tug boat and the dump barge (without engine motor) were docking at MV Tina, a log ship bulk carrier.
4. At that material time MV Tina was anchored at the sea passage channel between ropa island and sivatae island, Katupika, South Choiseul. Baram glory and wayline 3 were carrying out transshipment of logs onto MV Tina for export.
5. On an about 1^st January baram glory and wayline 3 went to Kurudu on ropa island seeking shelter because there was a bad weather.
6. The bad weather was a low depression building up one in the Temotu Province and the other at West of Rennell and Bellona.
7. In the sworn statement of Mr. Noge filed on 30^th May 2022, stated that, on 31^st December 2018, before mid-day the boram glory and wayline 3 were birthed near the log ship bulk carrier MV Tina to conduct transshipment of logs.
8. When loading commenced the weather was fine as well as the sea.
9. At around 10pm on 31^st December 2018 the sea started to get rough. Because it was a tropical low depression which prevailed over Western and Choiseul Provinces that caused great concern to the Captain .
10. Because of the hazardous circumstances Mr. Noge ordered transshipment be aborted.
11. He then took necessary steps to navigate the boram glory and wayline 3 to find nearest shelter in the kurudu bay on Ropa Island which was not far from where the transshipment was conducted.
12. Mr. Noge subsequently managed to navigate the boram glory and wayline 3 successfully into kurudu bay at about 1 am on 1^st January 2019.
13. He further testified in his sworn statement that the boats did not cause severe damages to marine eco-system and environment. He did noticed only one mangrove was damaged which the stand line rope of the Wayline 3 was tired to and because of strong gale winds. There was no coconut trees damaged.
14. The Claimants rely on three factors which render the Defendant liable to pay the damages cause by the tug boat and the barge.
15. The 3 reasons are, that Mr. Noge the Captain was drunk when he beached the barge at Kurudu bay.
16. Secondly, Mr. Noge the Captain is not a qualified Officer as Captain to master the tag boat. He merely holds a Coxwain 2^nd class.
17. Thirdly that the landowners of Kurudu bay were not sought permission before the barge could be beached at Kurudu bay.

The issue of the Captain being drunk

18. In the evidence of Mr. Solomon, who witnessed that the Captain and crews were drinking alcohol on 31^st December 2018, ready to celebrate the New Year 2019.
19. However, Captain Noge stated they were drinking on 1^st January 2019 after the barge had been relieved. He also said Mr. Solomon came on the boat at 5 am on 1^st January 2019 with a carton of beer, he was already drunk.
20. Mr. Noge also stated before at 12 midday on 31^st December 2018 they went to the carrier for the transshipment of logs. Mr. Solomon did not mention this in his evidence.
21. .Around 10 pm the weather was rough and so bad so they have to cease transshipment. Mr. Solomon did not mention this in his evidence either. If he was on the boat for more than 20 hours. He would have affirmed, however merely said the sea was a bit rough.
22. For the entire 20 hours on the boat Mr. Solomon admitted he can drink but he did not taste any beer at all that very time. That reason is hardly to belief.
23. All alcohol drinkers drink alcohol wherever there is privilege that beer is available. No wonder Mr. Solomon remained on the tug boat for more 20 hours.
24. Mr. Solomon was cross-examined whether he knew of any bad weather warning. He denied it.
25. However, attached to Mr. Noge’s sworn statement were several strong wind warning from SI Metrological Service.
26. There were 4 official warnings, they were at 6 am, 9 am, 4 pm and 6pm on 31^st December 2018. The warnings were about two low tropical depressions, one building up close to West Rennell and the other east of Vanikoro in the Temotu Province.
27. The warnings remain current for most of the waters in Solomon Islands. It is expected winds at 15 to 20 knots, may reach 30 knots at times with moderate rough seas.
28. The sworn statement of Mr. Noge stated that at 1.00am he mastered the tug boat and the barge into kurudu bay.
29. Upon cross-examination Mr. Solomon agreed that the barge was drifted. This piece of evidence was not included in his sworn statement.
30. However, because of the rough weather and the rope tied to the barge was broken, allowing the barge to drift. In this circumstance that Mr. Noge mastered the tug boat and the barge into kurundu bay successfully to seek safe haven close to where the transshipment took place.
31. Ultimately there is indifference of evidence between Mr. Noge and Mr. Solomon, both of whom were on the boat together for 20 hours.
32. The challenge of evidence boils down to the differences both men adduced in evidence. The dates of drinking is different and the date and time which the boats were beached at kurundu bay also different. Evidence coming from opposing parties often differs.
33. The major challenge in evidence is to put Mr. Noge at stake that he was drunk when he beached the boats and hence incapable to master, that he was negligent of his duties and breached of any safety regulations.
34. Both Mr. Noge and Mr. Solomon adduced that there were damages. Mr. Noge describe as not a destructive damage, whilst Mr. Solomon stated there were great damages done.
35. I accepted there were some damages done to the coral ecosystem, mangroves and some environmental plants and ground.
36. To value the extent of the damages two reports were filed. One was filed by Mr. D. Boseto who visited the damage site and witnessed the damaged mangroves ecosystem, and assessed the damages caused by the coral reef and the substate.
37. He also used mask and snorkel to assess the damaged area.
38. The second report was compiled and filed by Mr. Ezekiel Leghunau on 25^th April 2021.
39. I noted the report compiled by Mr. Boseto was first in time before the report compiled by Mr. Leghunau.
40. Mr. Boseto concluded the compensation damage to mitigate environmental damages, replanting of costal trees and coral reefs amount to $6, 360, 245, 10.
41. Mr. Leghunau conducted in his report that there is no GPS points or way points provided by Ecological Solution report so that the report can verify the location they did the field assessment. He said the landowners must have shown the ecological Solution the wrong site thus the report did not reflect actual nature of claim site.
42. He found out there is no evidence or hard coral move from their original positions. There is also no evidence of mangrove forest damaged in the claim area, only one patch of mangrove was at the claim site. Finally he stated there is nothing of significant in terms of ecological and socio economic values.
43. I noted the different dates of the verification assessment reports. If the second report was done two years after the first one, then the second report appears to be new after the incident.
44. This claim does not concern damages to environment and merchantable trees by logging operation. Yet Mr. Boseto’s report included in his assessment report. This case concern damages caused by trespass of beaching the two vessels at Kurundu bay and no more to any other extent.
45. It is quite difficult to accept a report that covered a mass area that went beyond the claim itself to include logging damages.
46. The major evidence the Claimants rely on is that of Mr. Solomon. However Mr. Solomon’s evidence is inconsistence and un-reconcilable as I noted above in paragraphs 24 to 28 and 33 to 38.
47. Whether Captain Noge was drunk or not he had successfully beaching the barge at kurudu bay. The report by Mr. Leghunau 2 years after the incident appeared to be trivial damages, or otherwise whatever damages done had been replenished itself.
48. An item subject Mr. Boseto referred to in his report costing millions of dollars including urgent application and management, planting of mangroves, replanting coastal plants, research and monitoring, maintenance of species etc.
49. The report covers a vase amount of work to be done if the 6 million is given. Most part of the report are assumptions which as I perceive will not be done. It is merely a question of money at the end of the day.
50. Therefore, the results conveyed by the reports reveal that Mr. Noge was not drunk, nor negligent so as to cause such damages. However he used his skill learnt from many years of experience as a matter of fact and did not recklessly damage the environment and coral ecosystem. As a result there is minimal or trivial damage which has naturally replenish itself from any organized environmental programs which in any event costly.
51. I must accept Mr. Noge was not drunk on 31^st December 2018, but his crews and himself were drinking on 1^st January 2019 after the barge was beached.
52. I agree Mr. Noge was not qualified as a master to captain such class of boat even on coastal. However, he had done the best of his ability and skill to secure both vessels into Kurudu bay from being damaged.
53. In fact he was forced to do what was right because of the bad weather proven by evidence to have been prevailed at that time. I find Mr. Noge did not commit any marine offence of what he had done.

Trespass without permission.

54. The claim emphasizes trespass and damages caused by the Defendant’s tug boat. The damages caused were to tribal properties and surrounding environment.
55. I noted Mr. Elwyn Gala was the chief of galovarani tribe, South Choiseul. There is no dispute as to that. He stated that galovarani tribe has legitimate ownership over portion of land from mainland and extend to Ropa Island.
56. The act of trespass becomes a life issue when the trespass claim legally emerged from (a) customary land ownership and (b) no permission was sought and granted by the Claimants before the beachment of the barge on the Claimant’s customary land,
57. It was obvious that Mr. Noge was forced to beach the barge at Kurundu bay because of the bad weather. In law it was termed as force majure. Therefore the case of Nesa V Mas Sol Inv. ltd^[1] cannot apply.
58. The remaining issue is the ownership of ropa island customary land. I noted there was a customary inquiry, by the Babatana Council of Chiefs in relation to Kobo customary land. The parties are the Claimants led by Chief Allen Galo representing galovarana tribe, and the Defendant Mr. Lester Lukisi and others.
59. The decision by the Babatana Chiefs did not extend to ropa island, but pivoted only on Kobo customary land and the common boundary which was described as qoqorana stream that divides the Claimants and the Defendants customary lands.
60. When the issue of trespass on customary land is raised in a claim, the first thing that comes to mind is the right of ownership to that land, because the issue of damages attached to such claim.
61. It is a well-established law that trespass gives rise to damages. Therefore without proof of ownership there cannot be poof of damages, see Thobatia V Capital Construction^[2].
62. The decision in Thebatia V Capital Construction was adopted in the case of Daiwo V Lano^[3]. The Court echo the same principle in this manner;
    • “It is settled law that trespass to land give rise to damages. Without proof of damage... A crucial element in any claim for trespass to land is proof of ownership. For the Claimants in any case to succeed and in this case specifically to succeed, ownership of the land must be proved to the requisite standard, namely on the balance of probability”.
63. In the case of Maina V Kalola^[4], which the Counsel for the Claimants rely on in their submissions, was a case determined after trial, after evidence has proved to the satisfaction of the Court, there was ownership to the land and conversion of trees within rorau customary land.
64. Therefore, the case actually was dealing with assessment of damages to rorau customary land after proof of ownership was ascertained, and which gave rise to damages.
65. The current case deals with whether the Claimants have any evidence of proof of ownership of ropa island. If there is sufficient evidence of poof then assessment will follow suit.
66. In the case of Mayson Nesa V MAS Solo Investment Ltd^[5], the Court did not discuss the issue of ownership to customary land bobokana. But, however there must be evidence of proof as to customary land ownership as requisite.
67. That case concern judgment and assessment of damages at the same time. The Court gave judgment in favour of the Claimants and award damages to the Claimant upon proof that the Defendant had intruded in the buffer zone particularly the K River.
68. I will treat and approach this claim differently. There must be proof of customary landownership before awarding of damages. Thereafter will be the assessment of damages.
69. It appears that ownership of Kurudu bay is in issue before this Court which this Court lacks jurisdiction to hear such issue. However, should the Claimants produce a copy of Court decision or Chiefs decision that they own the bay, before this Court will accept that is a proof of land ownership?
70. Meanwhile, the decision of Babatana House of Chiefs refer to above, does not specifically point to on record that the Claimants own ropa island. It merely concerns Kobo land and the common boundary which divide the Claimants and the Defendants customary lands.
71. It therefore, show that the Claimant have not established customary ownership of Kurudu bay on the requisite standard. I must therefore dismissed the claim.
72. On the issue of environmental damages, I have decided on that, see paragraphs 38-49 above. I do not accept the report filed by Mr. David Boseto to and I reject it per se.

Orders:

1. The claim is hereby dismissed accordingly.
2. The cost of this hearing be paid by the Claimants to the Defendant on standard basis if not agreed upon.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] HCSI 492 of 2017.
^[2] [2013] SBHC 108; HCSI-CC 323 of 2011.
^[3] [2011] SBHC 15, HCSI 360 of 2007
^[4] [2019] SBHC 8; HCSI-CC 413 of 2014 (8 February 2019).
^[5] [2019] SBHC 58; HCSI-CC 492 of 2017 (31 July 2019).