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Duri v Saepio [2012] SBHC 107; HCSI-CC 128 of 2012 (17 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 128 of 2012.

BETWEEN:

LILI DURI
Claimant.
(Customary owner of Heribangara customary land).

AND:

DONALD STEWARD SAEPIO, JIMSON
FIAU TANA, JOHN KABOLO.
Defendants.

Date of Hearing: 31st August, 2012.
Date of Ruling: 17th September, 2012.

Mr. M. Tagini for the Claimant.
Mr. C. Hapa for the Defendant.

RULING.

Faukona J: This application is for interim restraining orders restraining the Defendants from interfering with the Claimant's business activities within Heribangara customary land, and was filed by the Claimant on 7th May, 2012. Upon footing of Civil Case Numbers 181 of 2007 and 284 of 2007 which were decided in favour of the Claimant, one of which (181 of 2007) assessment of damages is yet to be decided.

2. The Claimant is a member of Epanga tribe of Kolombangara island, and the Defendants are members of Kolombangara tribe of the same island. It is common knowledge that there is a common boundary that separates the two customary lands own by the two tribes. The dividing feature is Magerai (Tiroana) river. The land lies east of the river belongs to Kolombangara tribe and the land lies west belongs to Epanga tribe. It appears undisputed that the boundary going inland follows the river until it meets the eastern corner, that is peg R37X of lot 10, and the western corner of Lot 2.

3. On 23rd March, 2005, Heribangara customary land, as part and partial of Epanga land was vested on the Claimant as the sole customary owner following a customary ceremony held on the same date. The land can be identified by pink colour on a map attached to the agreement.

4. On 22nd March, 2012, the Claimant signed an access road agreement with Success Company Limited so that the Company will access to Lot 10 which it had felling Licence No. A10746 over. Following that agreement the machines were landed at Korare log pond. But met with physical confrontation by the Defendants which subsequently led to a criminal charge laid. Upon that basis that this application was filed.

5. From the pink area marked on the map attached to the agreement, the top part of it was encroached into Lot 10 and Lot 2 and a portion of it into Kolombangara land. The Claimant upon cross examination admits part of her land was encroached into Kolombangara land.

6. That raises an argument by Mr Hapa who refer to the case of Saemala V Fera[1], where his Lordship Awich J said,

"A situation where there is a claim of customary land right over land alongside a claim based on registered interest over the same land is an anomaly in my view. It should not occur at all because customary land right over land have existed before the registered interest"

7. What the Court actually was saying is that any registered interest in land cannot be dealt with or disposed of nor is conveyed to anyone by any custom ceremony. The only legal process available is on application to the commissioner of lands for a survey and a sub-division thereafter. That could only be possible if the trustees of the registered portions agree and willing to sub-divide and transfer the title to the Claimant.

8. That will leave the customary portion encroached into Kolombangara land, in particular the inner portion, be sorted out. The fact is that there is admission in evidence by the Claimant of such encroachment. If by acknowledgment such encroachment was by mistake then make it right. However, in my view, there could be two possibilities emerged. One is that the Chiefs of Kolombangara land who attended the ceremony could have endorsed such. Secondly the encroachment was done after the custom ceremony. In any event that portion within Kolombangara land needs to be sorted out by the parties.

9. I have no doubt the Claimant may have acquired a valid customary right of ownership over Heribangara customary land of Kolombagara island by virtue of the custom ceremony. It may appear unusual and may be viewed as contrary to customary land tenure of Kolombangara island, for the reason, that being a member of the tribe owning the land, then further acquired for personal rights of ownerships by custom of what had already being hers, through such custom ceremony. Of course motive for such is open for questioning.

10. Whether such custom transaction is contrary to the customary land tenure of Kolombangara island or not, is a matter for the chiefs and elders of Epanga tribe to decide. They had spoken and had accepted the ceremony and endorsed by others present meant the transaction was conclusive.

11. Before closing of the submissions Mr. Hapa submits that the Defendants protested against the landing of the machines at Korare log pond which is located within Kolombangara customary land. If that assertion is true then the principle in law that one has the right to protect his property against intruders has a possible application here.

12. This boils down to the question as to the actual location of Korare log pond, if the parties are making reference to the same. Is it within Epanga customary land or within Kolombagara customary land? There is no direct evidence to suggest the actual location. However, I noted from the map Exh. JK7 attached to Mr. Kabolo's sworn statement, that the current log pond is located at the east side of Magerai river. If that is the case, then the log pond is actually located within the customary land owned by kolombangara tribe. If that is truly the site where the machines were landed, then it is expected that the Kolombagara tribe's men will react and attempt to protect their land. Not only that but it could be seen as a provocative act which naturally will require a response.

13. Material evidence from the Chiefs hearing and others are useful for the purposes of the boundary and when the substantive issue of land ownership is litigated. Meantime, the significant point is derived from the prevailing understanding that Magerai river divides the two tribal lands with clear demarcation. Any encroachment as could possibly foresee in the inland area require resolution is an appropriate forum. Further, it is common sense and good practice that each party confine to their own land. Whilst the common boundary is clear and agreed upon, respecting one another is all that is needed.

14. It would appear, in my observation that this conflict came about because of the opposition put up by the Defendants against the landing of the machines at the log pond which is located within the Kolombangara land. In my view, that is not the sole reason for this conflict. It is an accumulation of all other disputes including the two High court cases. The most and perhaps a reasonable conclusion I would draw is because the Defendants thought that such custom ceremony of vestation of land rights on an individual is unlawful and impracticable from the normal means of acquisition of customary land. First few paragraphs of the sworn statement of J. Kabolo reinforces that view.

15. However, it should be noted that the custom transaction was held and conducted by the Epanga tribe concerning Epanga land. It has nothing to do with Kolombagara tribe and Kolombangara land except for the encroachment as identified. To interfere with a transaction that does not concern them (Defendant) is interfering into the affairs of others. I wish to reiterate again that the Claimant has admitted in Court that part of her portion of land did encroach into Kolobangara land. As such has reflected a simple situation to resolve by coming together and draw an agreeable demarcation boundary between the two land owning groups and sort out the problem.

16. I noted the conflict between the parties had been going on for sometimes. Various litigations with Court orders had caused resentment, despair and provocation between the parties. And the rate things are going does not look well. To ensure and maintain peace and harmony prevail between the two land owning groups and to live a peaceful co-existence side by side, the best decision I could cultivate is to grant the injunctive relief sought. On the same note it would be advisable that the Claimant confine to her land, even to the extent to use it for the log pond.

ORDERS.

1. An interim order restraining the Defendants, their invites, associates, agents, relatives from interfering, and disturbing the Claimant's access road through Heribangara customary land, at Kolombangara island, until trial or further orders of this Court.

2. An interim order restraining the Defendants their invites, associates, agents and relatives from interfering with the rights granted to Success Company Limited pursuant to an access road agreement signed between the Claimant and Success Company Limited on 22nd March, 2012, until trial or further orders of this Court.

3. An interim order that the Police is authorized to carry out arrest on the Defendants if the Defendants breaches orders 1 and 2 above.

4. Cost of this application is borne by the Defendants payable to the Claimant to be taxed if not agreed.

The Court.

^[1] [2000]SBHC 56; HC – CC 096 of 2000 (22 May, 2000).