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Mamaloni v Mas Pacific International Ltd [2016] SBHC 82; HCSI-CC 6 of 2013 (2 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 6 of 2013

BETWEEN:

MARY MAMALONI, ANITA SUSAN BRYRANT -
MAMALONI AND SOLOMON MORGAN
SUNAONE MAMALONI (jR)
Claimants

AND:

MAS PACIFIC INTERNATIONAL LIMITED
Defendant

Date of Hearing: 6th April 2016
Date of Judgment: 2nd June 2016

Mr Togamae for Claimants
Mr Kingmele and Mr Soma for Defendant

JUDGMENT

Maina J:

Introduction

The Claimants are claiming general damages for trespass and damages for unlawfully conversion of round logs within Perpetual Estate Parcel no. 108-002-2. The Claimants are registered owners of Parcel of land and alleged that they have not given any consent or grant any profit to the Defendant or anyone to contact any logging operation with the estate. The Defendant allegedly conducted logging operation inside the estate, or a trespass in excess of 2 hectares.

Brief Facts

The Claimants are the registered owners of the Perpetual Estate Parcel no. 108-002-2. (‘the Land’) and is described in the Perpetual Estate register as ‘Lot 2 of L.R. 227, Holokama (or Guguha).

The Defendant has a felling licence issued pursuant to the provisions of the Forest Resources Timber Utilization Act (cap. 40) (‘the Act’) that covered Loghaza Customary land which is located adjacent or outside of the Claimant’s Land.

The Claimants alleged that the Defendant has encroached into and conducted unlawful felling of trees within the Land.

Upon the alleged trespass and damages the Claimants and the Defendant have respectively commissioned their own surveys to ascertain the extent of any encroachment into the Land. The surveys have come to different conclusions as to whether or not the Defendant has encroached into the Claimants’ land.

The High Court on 21^st October 2013 ordered the parties to negotiate with land surveyors with a view to the parties engaging a third surveyor to carry out further assessment in relation to the alleged trespass to the disputed area (‘the third surveyor’).

Further the High Court on 12 December 2013 ordered the parties to agree on the third survey by 30 January 2014. And the parties agreed on Mr Jackson Vaikota of JV’s Lands and Surveys Consultancy Services to be the third surveyor. Mr Vaikota subsequently conducted a survey and produced a report on to parcel No. 108-002-2.

The issues

There are two related issues in this case.

1. What is the area of land purchased by Mary Mamaloni under the Guguha Land Purchase Cooperative Society Limited Liquidation in Perpetual Estate parcel No. 108-002-2 ‘Lot 2 of L.R. 227 .
   
2. Whether the allegedly logging by the Defendant was conducted in the Perpetual Estate parcel No. 108-002-2 ‘Lot 2 of L.R. 227, Holokama (or Guguha) owned by the claimants.
   

Issue 1

It not disputed that the Claimants own Parcel no. 108-002-2 which Mary Mamaloni purchased from the Guguha Land Purchase Cooperative Society Limited Liquidation. In the sworn statement filed on 30^th July 2013 Mary Mamaloni stated that she purchased an area of 780 acres and contained in a map in her possession. She also stated the properties included in the purchases.

We are dealing with registered land and the starting point is the Register of the Titles as it is everything as noted and quoted in the case Levers Solomon Ltd v Attorney General [2013] SBCA 11.

The Register has or contains the information that describes the location, the area of land, consideration, owners of the land and so on.

According to the Register for this parcel no. 108-002-2 it is owned by the Claimants and is situated or located in Maringe Lagoon Santa Ysabel. It is in Lot 2 of LR 227, Holokama (or Guguha). The area of land is (Approx) 282.368 hectares or 697.746 acres when converted to imperial area unit.

At the first registration in 1972, the registered owner was the Commissioner of Land and in 1980 it was transferred to Guguha Land Purchase Cooperative Society Limited with the consideration of Premium - $282.37. The Claimants acquired or transferred the titles on 1^st May 2001 with the transfer consideration of SBD$20,000.00.

By the register and I also do rule that the area of land purchased by Mary Mamaloni from Guguha Land Purchase Cooperative Society Limited Liquidation is (Approx) 282.368 hectares or 697.746 acres.

Issue 2

As already determined in Issue 1, the area of land is (Approx) 282.368 hectares or 697.746 acres and question is whether the allegedly logging by the Defendant was conducted within the Parcel No. 108-002-2 ‘Lot 2 of L.R. 227.

For this issue there is a need of physical evidence to be conducted at the site and in particular to identify or located the pegs that demarcated the parcel No. 108-002-2 and or Lot 2 of L.R. 227.

But as noted earlier the parties have conducted separate surveys to ascertain the extent of any encroachment into the Land but have come to different conclusions as to whether or not the Defendant has encroached into the Claimants’ land.

A third survey was commissioned by direction of the High Court. He is Jackson Vaikota of JV Lands and Survey Consultancy Services.

Mr Vaikota carried out that survey and produced a report dated 11 July 2014 and filed with sworn statement of Mr Vaikota on 3 December 2014. The Report concluded that there are no encroachments (logging activity) on to parcel No. 108-002-2.

It is noted from the evidences and documents presented to the court that the two surveyors conducted or used the maps that described the land area as 282.368 hectares or 697.746 acres but came out with different conclusions. The different conclusions may be so on the reasons or as pointed out by Mr Vaikota’s criticism of the previous surveys –

‘... there is no physical evidence on the ground to show that the two previous survey firms had actually opened the boundary lines of Lot 1 of LR.227 and Lot 2 of LR.227 (especially, line X-Y) Both firms had mostly replied on GPS positioning and superimposing of their collected data on to MapInfor generated map. The MapInfor general map does not merge with that of actual field survey...If both maps and plans merge, all our determination and conclusion (theirs and mine) should come to only one conclusion; that is there is certainly an encroachment on to Lot 1 of LR.22, but it does not extend to parcel 108-002-2 (Lot 2 of LR.227), which belongs to the claimants’.

The sworn statement of Mr Vaikota’s filed on 3 December 2014 annexed a third survey report and dated 11 July 2014 is not challenge by the Claimant or to defend their own surveyor finding from Mr. Vaikota’s criticism.

And that fact of not challenging the finding and Mr. Vaikota’s criticism of the previous surveyors and or either calls his surveyors or from other parties would mean that findings have not assisted their case. And I also hold that view for the Claimants that he cannot rebut Mr Vaikota’s findings.

What is stated or shown in the register is the land purchased by the claimant and contains all the information for the land in issue. It is so and the register is everything and absolute. It is not what the Claimants thinks or presume to be as their land. The Register of parcel no. 108-002-2 stated that the area of land (Approx) 282.368 hectares or 697.746 acres is situated on Lot 2 of LR 227, Holokama (or Guguha).

It is the land area which the Claimants’ and Defendants’ surveyors undertook the surveys but they came out with different conclusions. It is the same area of land and maps that Mr. Jackson Vaikota of JV Lands and Survey Consultancy Services used and undertook a third survey on the land.

Mr Vaikota’s finding is clear and that his survey produced a report which concluded that there are no encroachments (logging activity) on to parcel No. 108-002-2. As noted earlier this finding is not challenged by the Claimants with evidences or cross-examinations.

I accept the third party survey report or finding by Jackson Vaikota of JV Lands and Survey Consultancy Services that there are no encroachments (logging activity) on Lot 2 of LR 227 parcel No. 108-002-2.

ORDER

1. No encroachments (logging activity) by the Defendant on Lot 2 of LR 227 parcel No. 108-002-2.
   
2. The claim is dismissed
   
3. Claimant to pay the defendants’ cost on indemnity basis.
   

THE COURT

Justice Leonard R Maina
Puisne Judge