Lone v Solomon Telekom [2025] SBHC 33; HCSI-CC 353 of 2015 (25 February 2025)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lone v Solomon Telekom
Citation:
Date of decision:	25 February 2025
Parties:	Billy Lone v Solomon Telekom
Date of hearing:	25 November 2022
Court file number(s):	353 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1. Defendant not liable for trespass 2. If the Defendant’s tower is still on the land, the Defendant should negotiate a new lease with the Claimant. All rent should now be paid to the Claimant backdated to time when the tower was constructed. 3. Parties to bear their own cost.
Representation:	Mr Laurere for the Claimant/Applicant Mr Puhimana for the Defendants/ Respondents
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 353 of 2015

BETWEEN

BILLY LONE
Claimant

AND:

SOLOMON TELEKOM
Defendant

Date of Hearing: 25 November 2022
Date of Ruling: 25 February 2025

Mr Laurere N for the Claimant/Applicant
Mr Puhimana L for the Defendant/Respondent

JUDGMENT

KOUHOTA J

The Claimant on 9/12/1019 filed a category (A) claim against the Defendant seeking the following reliefs

1. Judgment against the Defendant for trespass on the Claimant’s registered land parcel number 135-003-5. Lot 5, LR 429.
2. Damages for trespass to be assessed
3. Rental payment (amount to be assessed) to be paid from the date the Defendant’s tower was constructed.

Statement of the case by the Claimant.

1. The Claimant namely Patrick Kesti (Lone) (now represented by Billy Lone, also known as John Billy Feralao Lone) and Willie Gilibiti were the registered joint owners of Parcel N0. 135-003-5 and 135-003-6 since 26^th March 2001.
2. They took on from Patrick Kesti and Zachariah Gilibiti who were the previous joint owners since registered on the 29^th March 1972.
3. In 2012 at the time the Defendant entered the land and erected its tower, Patrick Kesti and Willie Gilibiti were the registered joint owners.
4. The current titleholder are the respective sons of Patrick Kesti and Zachariah Gilibiti respectively and are now the Claimants in this action.
5. Billy Lone is claiming both in his capacity as the personal representative of his late father Patrick Kesti and in his personal capacity as the registered owner as of 28^th October 2015.
6. In or about the 25^th June 2012, the Defendant entered the Claimants’ land (Perpetual Estate Parcel No. 135-003-5 Lot 5 LR 429) and constructed its tower on the Claimant’s Land.
7. There was neither negotiation made with the Claimants nor consent granted by the Claimants to the Defendants to enter and construct its tower on the Claimants’ land.
8. The Claimant seek the reliefs

The Defendant defence

In its defence filed on 11^th February 2020, the Defendant says that the Claimant is not entitle to the reliefs sought. Defendant says that it has a valid sub-lease with Diocese of Auki Catholic church and any claim should be channelled to the Catholic Church.
The Defendant in its defence further says as follows;

1. As to the facts therein stated in paragraph 1, the Defendant admits that the Claimants are the registered proprietors of the PE Parcel 135-003-5, and that the registration of their interest in the said property was made in or about 28^th October 2015, and the Defendant had just recently been made aware that Patrick Kesti and Willie Gilibiti were the registered joint owners, held in statutory trust over the land parcel 135-003-5, from 1972. As a statutory trust, ownership cannot be asserted by only one individual in the trespass claim.
2. As to paragraph 2, the Defendant admits, but denies prior knowledge of the registration nor was it made aware of the registered interest as the time of negotiating with the Diocese of Auki Catholic Parish to build its telecommunication tower on the site whom the Defendant was led to believe was a holder of a valid lease at the time of negotiation to build its tower on the site.
3. As to paragraph 3, the Defendant admits to the extent that it entered and constructed its tower in 2012.
4. As to paragraph 4, the Defendant cannot reasonably know the relationship of those mentioned and will not respond.
5. As to paragraph 5, the Defendant admits in as far as it relates to the fact that the registration in the name of the Claimants in this matter was made in or about 28^th October 2015.
6. As to paragraph 6, the Defendant admits to the extent that its tower was erected in June 2012 on the Takwa land on Malaita Perpetual Estate N0. 135-003-5 Lot 5 LR 429, although it was not known or made aware of the PE title at the time of negotiations, as the Auki Catholic Diocese did not furnish the Defendant with same. It was however, known that the Parish has a valid lease and was lead to believe that it was a lease with the Ferata’a tribe, but denies knowledge that the Claimants in this matter are the registered owners of the said land. Regardless, the Defendant did sign a MOU with the Takwa Catholic Parish prior to the registration of the said land the Church had leased.
7. As to paragraph 7, the Defendant admits in as far as it relates to the fact that it entered the Takwa land and built its tower in or about 25^th June 2012,
8. As to paragraph 8, the Defendant denies that the Claimants entitled to claim any rental and or damages from the Defendant for alleged trespass due to the following reasons.
9. That there was a valid lease by way of a Memorandum of Understanding to lease date 8^th August 2012 between the Defendant and the Catholic Diocese of Auki Parish whom the Defendant had good faith discussions for an area for the erection of a telecommunication tower, and reasonably believe that Catholic Auki diocese had a valid lease. As such the Claimant may negotiate any claims for damages from the Auki Catholic Parish and not the Defendant.
10. That there exists a High Court Judgment dated 23^rd August 2013 in the HC CC 497 of 2011 in which issues of customary ownership are to be referred back to the CLAC to be determined appropriately. Consequently, there exists issues of customary ownership that must be resolved regardless of the fact that the alleged land is registered.
11. There is a caveat registered against this PE by one disputing the registration of the PE by the Claimant, namely Jack Konakwai.

Agreed Facts

1. That prior to 29^th March 1972, the Diocese of Auki had surrendered its lease to the members of Takwa tribe and since 1972, Patrick Kesti and Zachariah Gilibiti were the registered joint owners of land parcel no. 135-003-5 held in statutory trust for the members of their tribe (namely Takwa tribe) until 1987.
2. That prior to 26^th March 2001, Zachariah Gilibiti had died and thus Willie Galibiti was registered with Patrick Kesti as registered owner held in trust for their tribe since 26^th March 2001.
3. That on 28^th October 2015, Billy Lone replaced his late father Patrick Kesti (who died on the 19^th July 2000), and together with Willie Gilibiti were registered as joint owners held in statutory trust for and on behalf of members of the Takwa tribe whose ownership does not change upon the death of any of the trustees.

Agreed Issues

1. Whether the Defendant (had in good faith negotiated and signed the respective MOUs with Ferata’a tribe and the Catholic Diocese of Auki to establish a telecommunication tower at Takwa for mobile services to the area), and then entered and started building its tower in or about 25^th June 2012, despite the Claimant’s protest.
2. Whether at the time the Defendant entered parcel no. 135-003-5 in 2012. Patrick Kesti and Willie Gilibiti were the registered trustee of the said parcel?
3. Whether the current title holder are the respective sons of Patrick Kesti and Zachariah Gilibiti respectively and are now the Claimants in this action?
4. Whether the Claimants are entitled to the reliefs sought in the Amended Claim filed on the 9^th December 2019.

If the four agreed issues are answered in the affirmative the Claimant will be entitled to the reliefs sought in the Amended claim. If one issue is answered in the negative, the Claimant will not be entitled to the reliefs sought. In considering the Claimant’s claim and the agreed issues for determination, I will start with determining issues 2 and 3. I had considered the evidence and the materials before the Court and it is clear there is no dispute that the Claimant is the registered and current titleholder of Parcel No. 135-003-5. In view of this, questions 2 and 3 must be answered in the affirmative.

With regard to issue number 4, the answer depends on the determination of issue number 1. If issue number 1 is determine in the affirmative for the Claimant then the Claimant is entitled to the reliefs sought in the Amended claim.

Counsel for the Claimant submit that Claimant is entitled to reliefs sought on the these basis;

1. If the Defendant genuinely believe that the Catholic Diocese had sublease over the land, it should surely know that the land was registered land and should have checked with the Registrar of Title. It had not done that, or if it believed that the land was customary land owned by Ferata’a tribe. It should have asked for a copy of decisions from the land Courts. It did not do that as well. This was especially so when they entered on the 25^th June 2012. They received a letter of protest from the Claimant. (see “BL-10” at page 169 of the Trial Book)

Counsel for the Claimant submitted that the Defendant’s neglect or no care attitude defeats the notion of the Defendant having good faith when negotiating. For surely the issue of land ownership must have occurred in the minds of the Defendant. When negotiating the terms of the MOUs with the Catholic Diocese and Ferata’a tribe. If it did not occurred to the Defendant, then in my submission the Defendant cannot be negotiating in good faith at the material date and time.

Counsel for the Claimant further submitted, if the Defendant had negotiate in good faith (which is denied by the Claimant in this submission) will it amounts to a good defence in law? I submit that it does not. For trespass consists of an unjustified entry on to the land in the possession of another, so there can be no trespass where the entry was authorized. Justification can be either a permission granted by the Claimant, or a right of entry conferred by law or by the Claimant or his predecessor in title.

2. Counsel further submit that there is no question at the time of trespass into the subject land in 2012, Patrick Kesti and Willie Gilibiti were the registered joint owners in trust in parcel N0. 135-003-5 for members of Takaw tribe. Since the land in question was owned by the tribe represented by the trustees for members of Takwa tribe. Willie Gilibiti was the survivor at the time of trespass and note that Billy Lone by grant of letters of Administration is the personal representative of his late father Patrick Kesti. Thus both the Claimants have locus standi to claim for trespass.
3. Counsel further submit that he believe the Defendant did not wants to take issue on whether or not John Billy Feralau Lone is the son of Patrick Kesti and Willie Gilibiti is the son of Zachariah Gilibiti.
4. The last issue is the result of this action. If the Court finds that the Defendant trespass into the Claimant’s land then the Claimants are entitled in law to the reliefs sought in the Amended Claim filed on the 9^th December 2019.

I had considered the submission of counsel for the Claimant and the bulk of his submission are on matters that are not in dispute. There is no dispute that the Claimant is the current registered titleholder and owner of the land PN. 135-003-5 so there is no question on his locus standi to bring this claim. There is no dispute that the Defendant had entered onto the land and built its tower on the land. The only issue is whether the Defendant’s neglect or its no care attitude defeats the notion of the Defendant have good faith when negotiating with the Diocese of Auki and Ferata’a tribe. Therefore, the claim for damages for trespass depends on the issue whether the Defendant’s neglect or no care attitude defeats the notion that the Defendant have good faith when negotiating with the Diocese of Auki and Ferata’a tribe.

I considered this is the critical question in this case and the success or failure of the Claimant claim hangs on this issue. While counsel for the Claimant raised this issue in his submission, the Claimant did not tender any evidence to support the allegation that the Defendant did not negotiate in good faith with Auki diocese and Ferata’a tribe. But even there is no evidence of bad faith, this can be inferred or deduced from the facts and the circumstances. I considered the evidence of Mr Wickly Faga filed on 20th February 2020 and I believed his evidence clearly relates to this issue. At paragraph 3 of his sworn statement he deposed that the Defendant by its Manager Malaita Region at the request and application for a telecommunication services at Takwa by the Parish Rector Fr. Osifelo and Mr Placid Sade, commence physical inspections, survey and held meeting at Takwa Catholic Station in or around 2011. At paragraph 4 Mr Faga deposed that in or around June 2012 a MOU was signed between Ferata’a tribe and Solomon Telekom Company Limited (STCL).

While the Claimant alleged the Defendant was neglect or has no care attitude, on the evidence of Mr Faga, the Defendant did not entered the land by its own desire to built its tower on the land but in response to an invitation by the Rector of Takwa Parish Fr. Osifelo. In that respect, I am of the view that the Defendant relied on the invitation and entered into the negotiation in good faith with Fr Osifelo, the Diocese of Auki and Mr Placid Sade because normally when a person who lives on the land invited another person to come on the land the person invited will believe that the person who invite him owns the land.

Thus on materials before the Court I believe that the Defendant had negotiate in good faith with the Auki Diocese whom it genuinely believe had a valid lease over the land. One expect Fr. Osifelo of Takwa parish or Auki Diocese who have knowledge of the land to inform the Defendant about the status of the land, but they did not. In that respect, I agree with the submission of counsel for the Defendant that the blame should be on Auki diocese, Fr, Osifelo and Ferata’a tribe for misleading the Defendant to negotiate with them over the land. After considering the materials before the Court and the submission of counsels I think that the Defendant had taken the normal necessary steps to find the owners of the land and no one expect them to go into the extraordinary steps counsel for the Claimant submit, the Defendant should take. In that regard I am satisfied that the Defendant in good faith had entered into genuine negotiation with the people who presented themselves as the owner or as having a valid lease over the land. Thus, any blame should be laid on them. In the circumstances therefore I find the Defendant is not liable for damages for trespass, I however find the Defendant liable to pay rent to the Claimant from the time the tower was constructed and since it now is clear that the Claimant are the registered title holder of the land PN 135-003-5, the Defendant should enter into a new lease over the land with the Claimant. All rent for the land should now be paid to the Claimant, including rent from the time the tower was constructed.

With regard to issue of customary land dispute referred was by the Defendant since it is clear that the land is a registered land, the provisions of section 12 of the Local Court Act does not apply to PN 135-003-5, as the land is no longer a customary land therefore any dispute over the land is not a customary land dispute.

Orders.

1. Defendant not liable for trespass
2. If the Defendant’s tower is still on the land, the Defendant should negotiate a new lease with the Claimant. All rent should now be paid to the Claimant backdated to time when the tower was constructed.
3. Parties to bear their own cost.

THE COURT
Emmanuel Kouhota
Puisne Judge