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Bird v Vago [2016] SBCA 20; SICOA-CAC 14 of 2015 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. In the High Court this was a claim for trespass and damages resulting from logging. On appeal the issues raised are, to us, quite simple. They are complicated, however, by the construction of the Appeal Book which, sadly, appears in a deplorable state. It includes decisions of earlier courts and tribunals not relied upon on the appeal and various maps and drawings described within themselves as containing areas shaded or bounded in colours which simply do not appear in the book as agreed and filed.
2. Counsel have a duty to their clients and to the Court which duty includes presenting material in a professional and comprehensible way. They have a duty in the High Court prescribed by the Civil Procedure Rules and equally applicable in the Court of Appeal not to waste money and resources onmaterials which are not relevant to the issues in dispute. In this case neither counsel complied with this duty. It is very clear that if the wrong decision was arrived at in the High Court, counsel must look to themselves and their presentation of the evidence for an explanation of that.
3. Only the Appellant and the 3^rd Respondent appeared on this appeal. We therefore did not have the benefit of submissions from the 1^st and 2^nd Respondents. We note the proof of service of the appeal materials on the 1^st and 2^nd Respondents.
4. We refer in particular to a Felling Licence issued by the Commissioner of Forest. Described as attached to that licence was a map showing the concession area bounded in red. Given that the claim was based on an allegation of logging outside of the concession area it must be the case that the area itself is identified in the claimant’s material. Yet it was not bounded in red either at trial or on appeal. These simple errors are unacceptable and should not be tolerated.
5. The defence to the claim of trespass is based on lack of evidence of customary ownership. It was asserted in the High Court that the Appellants could not point to a decision of a court or tribunal finding that they were the customary owners on the land known as Central Kohigo Western Province.
6. It is common in such cases that judicial officers are encouraged in submissions to find that in the absence of a decision in their favour, claimants are making no more than assertions of ownership. In many instances, quite properly, such a finding may be the correct finding and may dispose of a claim.
7. In the most unusual circumstances of this appeal, we feel that a fuller investigation into that which the Appellant asserts is necessary before a finding is made. Whilst counsel for the Appellant on the hearing of the appeal eventually conceded, there was at the time of the hearing of this claim at first instance, no prior judgment on customary land ownership in favour of his client. He is quick to point out that now there is – a matter arising after the High Court trial and even after this appeal was filed, indeed only a couple of weeks ago. That decision of a House of Chiefs covers this Central Kohigo Land and appears to be in favour of the Appellants, although the time for appeal of that decision has not even expired yet.
8. What was available to the trial judge, on this issue of customary ownership of Central Kohigo, were a number of issues. Most significantly, in our view, was that the area had originally formed part of the Form 1 Application under the Forest and Timber Resources Utilisation Act. At the hearing before the Western Provincial Executive (WPE) following objections made by the present Appellants, that area was excised from the application and subsequently that same area was not covered in the determination or subsequent Felling Licence. Prima facie, the WPE had accepted that the objectors were owners of that land. Because of the excision, the Appellants took no further part in the Timber Rights process.
9. With this knowledge it is said that the 1^st and 2^nd Respondent through the 3^rd Respondent logged in the excised area. Hence the claim for trespass. The option had, of course, been available to the 1^st and 2^nd Respondent to pursue their application for the whole land as described in the Form 1 application but they chose not to do that but reduce the land area to remove the disputed area. By doing that the WPE was deprived of any opportunity to ascertain who, if anyone, was entitled to grant Timber Rights in that area.
10. In addition to this rather unique set of circumstances there was other material capable of supporting a claim for customary ownership. There is an agreement made earlier concerning the need to agree for development purposes which is said to be circumstantial evidence pointing towards proof of ownership. What, perhaps, might also have been brought was evidence of actual occupation of the area, which itself could go towards supporting a claim for trespass.
11. There will always be a time when a matter comes before the High Court when customary ownership has not yet been determined by a tribunal or court. Customary ownership is not always challenged or in dispute and it appears that only when a dispute arises can people seek a decision to determine ownership. Surely that customary owner cannot be deprived of his or her rights simply because no earlier dispute has arisen?
12. Faced with that, or indeed any similar situation where there is enough satisfactory evidence to support it, it seems to us that the proper course is to adjourn the trespass claim until a determination is made in the proper forum mon customary ownership, given that the High Court has, we appreciate, no jurisdiction to determine the matter.
13. As he decided that the claim should be dismissed on customary ownership grounds, no findings were made on the question as to whether there was actual trespass, understandably. In the circumstances we feel that this appeal must be allowed and that the matter should be sent back to the High Court. In the High Court it may well be that the matter must be stayed pending a customary ownership determination although as we have said there is now such a decision in favour of the Appellants. We do not know whether that decision will be challenged. What we observe is that, as in this appeal, the 1^st and perhaps as well the 2^nd Respondent seem to believe that if they avoid attending hearings they can somehow escape liability. They did not attend the chiefs hearing earlier this year and now have chosen not to attend this appeal hearing.
14. Also still to be determined as between the three respondents is the question of indemnity raised by the 3^rd Respondent against the other two. Again the trial in the High Court did not reach that point.
15. We overturn the finding of fact made in the Court below relating to customary ownership of the land in question by the Appellant and send the matter back to the High Court for a fresh determination, postponed, if necessary until there is finality in the customary land appeals process. We stress that this is a most unusual case and that it will not in the main upset the general practice of looking for a decision already made which determines land ownership After all such is the best evidence, but the practise must not turn into a rule of law.
16. The appeal is allowed and the matter remitted to the High Court for the reasons given. Costs of and incidental to the appeal will be paid by the Respondents to the appeal such costs to be assessed if not agreed.
    

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Goldsbrough P

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Lunabek JA

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Young JA