Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Arahana v Ta'afia [2000] SBHC 67; HCSI-CAC 002 of 1998 (23 May 2000)

CAC No 002, 98, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No 002 of 1998

PAUL HORIW ARAHANA AND OTHERS

-v-

KESTY TA’AFIA

High Court of Solomon Islands
(PALMERJ.)
Civil Appeal Case No: 002 of 1998

Hearing: 18th April 2000 (at Auki)
Judgement: 23rd May 2000

Appellants represented by Spokesman (V. B. Talauburi)
K. Averre (Public Solicitor - Auki) for the Respondent.

PALMER J.: The Appellants were represented by one of their kinsman, V. B. Talauburi, who spoke on their behalf. Initially I queried his presence in Court but after hearing explanation from him and the Appellants it was decided to allow him to speak on their behalf. A total of three grounds of appeal were raised. Those three grounds of appeal however can be condensed into one common ground; that the findings of the learned Principal Magistrate were against the weight of evidence. Put in another way, there was no or insufficient evidence, to support the findings of fact made by the learned Principal Magistrate and that accordingly, he had committed error of law that warranted the intervention of this Court.

FINDINGS OF FACT MADE BY THE MAGISTRATE'S COURT

At page 8 of the Appeal Records, the learned Principal Magistrate made the following findings:

“I now deal with the issue which is primary, i.e., did the defendants trespass into Foai customary? (sic) I have had the benefit of checking the sketch maps, tendered the plaintiff and the defendants which are marked “E” and “F” respectively. This sketch maps must be examined and compared with Mr Bell’s map contained in a conveyance dated the 25th of April 1927. Both sketch maps indicate where the logs were cut. In comparing the sketch maps, I note that the plaintiffs map is consistent with Mr Bell’s map whereas the defendant’s map place the boundary outside of Launafula Village where Mr Bell’s original boundary mark is located. Moreso the defendants map indicates where the logs were cut and shows that the logs were cut inside Foai customary land. The defendants failed to appreciate Mr Bell’s boundary mark at Launafula Village and went inside Foai customary land and cut the logs therein. I therefore find that the defendants Paul Horinahana, Abraham Fred, Peter Max and Stanley Sata did commit the tort of trespass when they cut logs within or inside Foai customary land and therefore they are liable to pay compensation to the plaintiff.”

In his judgement, the learned Principal Magistrate found that the defendant’s map (see page 34 of Appeal Records for this sketch map marked “F”) indicated where the logs were cut and that this was inside Foai Customary Land. I have had a careful look at document “F” but unable to find any marks which might have indicated the possible sites where the logs were felled and removed from. During the hearing before me, I asked Mr Talauburi to indicate in a sketch map, also annexed to the Appeal Records marked “J”, where those sites were. Four sites were marked on that sketch map but which were all clearly outside of the land area described as Foai Customary Land.

The boundaries of Foai Customary Land are not in dispute. It had been the subject of earlier disputes between the patties and finally adjudicated upon. Ownership vests in the Respondent. It is commonly described as lying between Mr Bell’s original marks running inland for 32 chains to a spot marked No.1, near kwainaura Stream, and Bila River (see sketch map marked “J”).

In order for the Respondent to succeed in his claims for trespass against these Appellants in the Magistrate’s Court, he had to prove on the balance of probabilities that the torts of trespass were committed within Foai Customary Land.

EVIDENCE BEFORE THE MAGISTRATE'S COURT

The evidence adduced by the Respondent in respect of Paul Horiwarahana. At page 17 of the Appeal Records, this is what the Respondent said as recorded in the transcripts of evidence:

“On February - March 1996 Paul Horinahana he cut 1 tree inside Foai land. The timbers are: 1) 7 bearers 6” x 2” x 12’ long. 2) 100 floor pieces 7” x 1” x 11’ long. Paul used for his house June 1996. He continued with his no care business. He cut again Akwa trees inside Foai land near tambu place. He cut 1) 50 pieces 4” x 2” x 12 feet. 2) 150 pieces 6” x 1” x 12’. I saw it with my own eyes on 17. 6. 96 at 5.30 pm. He did not ask permission from me.” [Emphasis added]

This evidence was not challenged in any way during cross-examination by Paul Horiwarahana. In his evidence before the Magistrate’s Court, Paul Horiwarahana denied felling within Foai Customary Land. I am satisfied there is clear evidence before the learned Magistrate in respect of this Appellant which would entitle him to reach the conclusion that a trespass had been committed by this Appellant. Questions of credibility and weight are matters in the discretion of the learned Principal Magistrate to exercise. I dismiss the appeal of Paul Horiwarahana.

Evidence adduced against Stanley Sata. The only evidence adduced against this Appellant by the Respondent in the Magistrate’s Court, was in the form of hearsay evidence; from the wife of the Appellant. He alleges the wife of this Appellant told him on 20th June 1995 that 12 timber posts had been cut and removed by the Appellant from within Foai Land. The wife of this Appellant however was never called to give evidence. If the Respondent had intended to introduce or use the evidence of the wife of this Appellant as evidence against this Appellant, the only way this can be done is to have the wife called as a witness. If she refuses she can be subpoenaed to appear as a witness. Apart from that, her evidence cannot be introduced by this Respondent as it amounts to hearsay evidence and is inadmissible.

The only other evidence relied on was again hearsay evidence, sought to be introduced in the form of a hand written statement by a person of the name of Ricky Fo’oaisuta, who claimed to be an eye witness of the trespass committed by this Appellant. Again that is inadmissible as hearsay evidence and should have been excluded by the learned Principal Magistrate. The result is that there is virtually no, or little evidence, available against this Appellant on which any reasonable tribunal would have been able to find that a trespass had been committed by this Appellant. Accordingly, the appeal of this Appellant must be allowed.

Evidence against Abraham Fred and Peter Max. The evidence adduced against these two Appellants with respect is so scarce to be of probative value. In his oral evidence before the Magistrate’s Court this was all the Respondent states:

“Defendant Abraham Fred and Peter Max extracted cut trees together. What I have said about Peter Max applies to Abraham Fred too. They extracted timber for SDA house at Ararua.”

The most that can be drawn from the above evidence is a bold assertion that both Appellants had extracted timber from Foai Land, but lacking evidentiary support. No evidence was adduced as to who saw the trespass being committed, when, and where. The references to Ricky Fo’oaisuta and Urinao as the persons who might have witnessed the trespass being committed unfortunately, amount to hearsay. Both those persons were never called by the Respondent and not made available for cross-examination. In my respectful view the appeal should also be allowed in respect of these two Appellants.

There was some mention in the judgment of the learned Magistrate of a number of documents that had been submitted for his consideration. The document marked "B" referred to by the learned Principal Magistrate with respect did not assist the case of the Respondent any further, other than to confirm the quantity of timber alleged to have been extracted from Foai Land. Document “C” is of little probative value.

ORDERS OF THE COURT:

1. DISMISS APPEAL OF PAUL HORIWARAHANA.

2. CONFIRM ORDER OF PRINCIPAL MAGISTRATE FOR SAID APPELLANT TO PAY DAMAGES IN THE SUM OF $3,647.00 WITHIN ONE MONTH.

3. AWARD COSTS OF THE RESPONDENT IN THE COURT BELOW AND BEFORE THIS COURT AGAINST PAUL HORIWARAHANA.

4. ALLOW APPEALS OF STANLEY SATA, ABRAHAM FRED AND PETER MAX.

5. SET ASIDE ORDERS OF THE PRINCIPAL MAGISTRATE IN RESPECT OF THESE THREE APPELLANTS.

6. AWARD COSTS OF THESE THREE APPELLANTS IN THE COURT BELOW AND BEFORE THIS COURT AGAINST THE RESPONDENT.

THE COURT