Civil Case
No. 207 of 1994
PALMER J:
The Plaintiff claims damages for
trespass and conversion and an injunction to restrain the
Defendant and his servant
or agent from claiming rights
of ownership over his land and from using the land or
anything growing thereon without
the Plaintiff's
permission or authority. The area of land which the
Plaintiff claims ownership rights over is customary
land
and stretches from the Poha River to the Lumbukumu Creek.
THE
PLAINTIFF'S CLAIM
The Plaintiff asserts his claim
of ownership over the said land from his father, Bruna
Nana, who he says is the
owner of the said land. His
father's right of ownership in turn arose from a sale and
purchase transaction of the
said land from the Kakau
Tribe in 1937. It is not in dispute that the Kakau Tribe
were the original landowners
of the said land, and that
there was a sale and purchase transaction in 1937. The
Plaintiff states that the original
area of the land that
was sold in 1937 stretched from Kohove River in the east
to the Poha River on the west. The
area from the Kohove
River to the Lumbukumu Creek had
been registered under the Land and Titles Act on behalf
of the family of the Plaintiff. The area from Lumbukumu
Creek to Poha River however, remained customary
land. and
the Plaintiff says that ownership of it remain vested in
the Plaintiff's family.
THE CLAIM OF
THE DEFENDANT
The Defendant does not dispute
that there was a sale of an area of land by the Kakau
Tribe to the plaintiff's family
in 1937, but that the
area of land sold did not stretch from Kohove River to
Poha River as alleged by the Plaintiff.
The Defendant
states that it stretched rather from Kohove River to
Lumbukumu Creek.
THE LAW
The tort of trespass to land
relates to the "unjustifiable interference with the
possession of land" (see
"Winfield and
Jolowicz on Tort" 9th Edition, at page 306). In Ganifiri
-v- Barai and Maenene Civil Case No. 22 of 1991 H.
C., judgment delivered on 5 December, 1991; and Sura
(as representative of her line) -v- Nialani Civil
Case No. 155 of 1991 H.C. judgment delivered on 18 June
1992, Muria ACJ, as he then was stated:
"In a case of trespass
to land it will only be actionable where the
Plaintiff has shown that he is
in possession of the
land or that he is entitled to immediate and
exclusive possession as the tort of trespass
is
basically a violation of the right to possession, not
of the right of property. However in certain cases
actions of trespass can also be used to determine
disputed titles or disputed ownership."
THE ISSUES
The Plaintiff bases his action
for trespass on his claim of ownership over the said land
as acquired from his father
in the sale of the said land
in 1937 and that this right of ownership gave him in turn
a right to immediate and
exclusive possession of the said
land. The Defendant on the other hand denies the sale of
the said land in 1937
and that therefore no right to
immediate and exclusive possession of the said land was
ever conferred on the Plaintiff.
THE EVIDENCE
The Plaintiff relied on a recent
purchase of the coconut plantation of a member of the
Kakau Tribe by the name of
Malakia, in the sum of
$260.00, as supporting his claim of ownership over the
said land. Mr. Radclyffe, of Counsel
for the Plaintiff
submits to the Court that the plantation would not have
been sold to the Plaintiff if it had
not been
acknowledged, or recognised that the Plaintiff had a good
title to the said land in custom, and a right
thereby to
immediate and exclusive possession of the said land.
The Defendant on the other hand
strongly denies that there was a sale of the coconut
plantation. He stated on oath
that that sale in 1984 was
but for compensation for the cutting down of 11 coconut
trees to enable the Plaintiff
to build a house on the
said land. He disputed the amount of $260.00 as well,
saying that it was only for $200.00.
In support he called
the son of Malakia, Paul Rawa, who confirmed that the
amount paid was $200.00 and that it
was to allow the
plaintiff's father to cut down 11 coconut trees so that
he could build a house there.
Having heard the evidence on
this sale transaction, I am not satisfied on the balance
of probabilities that the
sale was as alleged by the
Plaintiff, for $260.00, for the purchase of the coconut
plantation of Malakia.
Another piece of evidence relied
on by the Plaintiff in support of his claim of ownership
and right to immediate
and exclusive possession,
consisted of a number of acquisition proceedings records.
The first acquisition proceedings
related to the
determinations of the Acquisition Officer, George A.
Hoatamauri, of the same land area (known as "East
of Poha Land River"), as alleged by the
Plaintiff to have been sold by Lorrensio of the Kakau
Tribe, to Stanley Toto in 1937. The Acquisition
Officer
found in favour of the Plaintiff's family, accepting the
boundary of the land sold in 1937 as stretching
from Poha
River to Kohove River. That finding was appealed against
by Siriako Usa (the Defendant here as well), to
the Magistrate's Court. In his judgment, the learned
Magistrate found merit in the appeal of Siriako Usa and
held inter alia, that "the determination of the
Acquisition Officer was perverse and against the weight
of the evidence". The learned Magistrate then
ordered that the determination of the Acquisition Officer
in relation to the
land between Poha River and Lumbukumu
Creek to be quashed and excluded from the Lease
Agreement. At paragraphs
(5) and (6) of page 3 of the
said judgment, the learned Magistrate made the following
observations:
"..., if the Kakau-bush
line wish to lease the land they are free to
negotiate with the Commissioner
of Lands. It does
not, of course, prevent the respondents or indeed the
Kindipale from claiming against
the Kakau-bush line
in future, either in acquisition proceedings, or in
customary land proceedings.
I make no findings as to the
rightful ownership of that part of the land between
Poha river and Lumbukumu
Creek, except to say that
the Acquisition Officer's findings are not supported
by the evidence, and the
land is to be excluded from
the Agreement Lease made between the lessors and the
Commissioner of Lands."
The comments of the learned
Magistrate, above, cannot in my respectful view be
construed as supporting in any way
the claim of the
Plaintiff to a right of immediate and exclusive
possession of the said land by the plaintiff.
The second acquisition
proceedings held in November of 1988, also related to the
same area of land. The evidence
adduced as contained in
the records of proceedings of the Acquisition Officer
were similar in nature to the earlier
acquisition
hearing. The findings of that Acquisition Officer, David
R. Houkari, was also in favour of the Plaintiff's
family,
but it is not clear whether that acquisition was
completed or that it was in respect of a different block
of land.
THE COURT'S
FINDINGS
Having heard the evidence and
submissions of both parties, I am not satisfied that it
had been shown on the balance
of probabilities that the
Plaintiff had acquired a good title in custom to the said
land and that thereby it conferred
on him a right to
immediate and exclusive possession of the said land. If
anything, the evidence as adduced before
this Court
points more in favour of the Defendant. However, I make
it quite clear here that the questions pertaining
to the
ownership of the said land, and or the correct boundary of the land sold in
1937, by the Kakau bush tribe
remains unresolved to this
day. The parties in my respectful view should now take
the matter up in the appropriate
Courts for the
resolution of this land dispute.
The claims for trespass,
conversion and injunction are denied, with costs.
A. R. PALMER,
JUDGE
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