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Tagotada v Reinunu [1984] SBHC 11; [1984] SILR 24 (20 July 1984)

[1984] SILR 24

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 19 of 1984

URAGHAI LAND

TAGOTADA

v

REINUNU

High Court of Solomon Islands
(John Freeman, Commissioner)
Civil Case No. 19 of 1984

20 July at Bambanakira
Judgment 20 July 1984

Contempt of court - meaning of “development” in customary land law - whether cutting down or planting trees a development

Facts:

The applicant and his line had been award awarded ownership of an area of customary land by a Customary Land Appeal Court, which had allowed the respondent and his line to keep their properties on the land, but forbidden them from making any developments on it without the applicant’s consent. The respondent cut down and planted trees on the land without the applicant’s consent.

Held:

“Development” means that kind of activity which may not be carried out by a holder of second rights without the first owner’s consent, and includes cutting down or planting trees. The respondent’s right to keep his existing properties was a second right, and so he was not entitled to plant or cut down trees on the land.

Respondent found guilty of contempt and sentenced accordingly.

No cases considered:

Andrew Radclyffe for the applicant
The respondent in person.

John Freeman: In 1982 there was a case between the present applicant TAGOTADA and respondent REINUNU before the TANGARARE Local Court. The case was about URAGHAI Land and REINUNU won; but TAGOTADA appealed to the Customary Land Appeal Court for Guadalcanal (“the CLAC”). In case No.5 of 1982 (URAGHAI Land: TAGOTADA v. REINUNU: decision given 1 November 1982) the CLAC -

(1) allowed the appeal and reversed the decision of the Local Court.

(2) defined the boundaries of URAGHAI Land as those shown in the sketch exhibited to their decision (and to Mr RADCLYFFE’s affidavit in support of this application) and awarded the land to TAGOTADA and his line.

(3) decreed that REINUNU and his line were entitled to keep their properties on the land until “the end of their economic life”.

(4) forbade REINUNU from making any further developments on the land except with TAGOTADA’s consent.

(5) ordered REINUNU to pay $100 costs.

There was no appeal to the High Court, so that decision still holds good. Now TAGOTADA complains that REINUNU has been making developments on the land by cutting down some trees and planting others. He asks me to deal with REINUNU for contempt of the CLAC. The first question I have to decide is whether these things do amount to development contrary to clause 4 of the CLAC’s order.

There are two main classes of right in the customary land law of the Solomon Islands. (Of course details differ widely from area to area but for present purposes it is enough for me to take judicial notice of the general pattern). Primary ownership (or first right) allows the owner to control all new or commercial development on the land. He may not interfere with the existing houses, gardens, fruit or nut trees of a secondary owner. On the other hand, the holder of second rights must not start anything new without the consent of the first owner. He may no doubt make minor extensions to his house or gardens for day-to-day living purposes. But to plant a tree is as serious a matter as starting a commercial development; if the planter succeeds in showing he had the landowner’s permission, the tree and its fruit will belong (as shown by Cl. 3 of the CLAC’s order) to him and his heirs for as long as it stands. To cut down a tree (whether forest or cultivated) is equally serious.

It follows that if REINUNU (who was in effect awarded second rights) has planted or cut trees on the land of TAGOTADA (declared the first owner), then he will be in contempt of the CLAC. The Local Court normally has exclusive original jurisdiction in disputes over customary land by virtue of S.231 of the Land and Titles Act. However, it has been implicitly accepted in previous cases (and I now expressly hold) that this court may punish a contempt of that kind in the exercise of the original jurisdiction conferred on it by S. 77(1) of the Constitution. It would be a nonsense if the High Court could only act where a case had been brought to it on appeal.

In order to decide whether TEINUNU has in fact been guilty of contempt. I took the view when the case first came before me in Honiara that I should have to go and look at the places where TAGOTADA said he planted or cut down trees. I took evidence from both sides at each place and heard submissions in court at Bambanakira afterwards. I shall deal with each place separately.

(1) is near URAGHAI village (where RENUNU lives). It is west of the URAGHAI river and south of the KOLOMATOBA stream. So it is well inside the land which the CLAC awarded to TAGOTADA as first owner. REINUNU was inclined not to accept this but when cross-examined he readily agreed that the spot was inside the land that had been disputed before the CLAC. It became clear that what he was really unwilling to accept was the correctness of the CLAC’S decision: but of course that has got to be accepted. I saw the six small betelnut trees complained of: they were only about 10 inches high, and clearly planted since the CLAC decision. REINUNU agreed he had planted them, and so is guilty of contempt at place (1).

(2) is further inside URAGHAI Land, I saw three large trees cut down, from the state of the timber since the CLAC’s decision. REINUNU agreed he did it, but he said he had wanted to move his house (which was in danger of being washed away by the URAGHAI stream. He had asked the Area Constable Reuben BALOVALA about it first: at my invitation he called him there and then to give evidence on that. The Area Constable confirmed that REINUNU had asked him, but made the important point that this was before the CLAC (or even the Local Court had made their decision. It is very sensible to ask the Area Constable before carrying out any new development on customary land, as he is likely to know who might claim it and can give other useful advice. But once there has been a decision by a Court, everyone must know what is to be followed (as any Area Constable would explain). So this does not help REINUNU, and he is guilty of contempt at place (2).

(3) is still further inside URAGHAI Land. I saw the three young coconuts (under two feet high) and the dozen or so small betelnut seedlings which REINUNU agreed he had planted. As at the other two places, it was clear he had done the work without TAGOTADA’s permission, and since the CLAC decision. So he is guilty of contempt at place (3) also.

How is REINUNU to be punished? I strongly suspect he had no real understanding of the finality of the CLAC’S decision. However, I am sure that like most people he realized that court orders are to be obeyed. I need not send him to prison this time: but I think I should make it quite clear that he and everyone else must respect the decisions of CLAC’s. This time I can do so by fining him.

The fines will be calculated as follows: for contempt of court at place –

(1) REINUNU must pay $5 for each betelnut tree he planted, making $30 in all. I make this fine small, because I think in customary law he has lost the right to the trees by planting them on TAGOTADA’s land without asking him. In case I am wrong about that, I declare the trees forfeit to TAGOTADA.

(2) REINUNU must pay $30 for each tree he cut down, making $90 in all.

(3) REINUNU must pay $5 for each coconut tree, and $5 for all the betelnut seedlings, making $20 in all. Again the trees and seedlings are forfeit to TAGOTADA if necessary.

So the fines add up to $140. REINUNU must pay that within 2 months, or else go to prison for 2 months. TAGOTADA should get the $90 for the trees cut down as compensation, but on the other hand he has gained 6 betelnut and 3 coconut trees and the seedlings. I shall deduct $1 for each of those, and order $80 of the fine to be paid out (when received) to TAGOTADA as compensation.

TAGOTADA also asked for costs. It is unnecessary for me to make any order on those awarded by the CLAC, and still unpaid; a writ of execution may be issued out of the magistrate’s court. I consider it quite reasonable for him to have gone by air to Honiara, once to instruct solicitors, and once for the first hearing of this case. So I allow his claim for costs of $142. By agreement he is also to have 2 months to pay those. After that a writ of execution may issue either out of this court or the magistrate’s court.