[1990] SILR 174

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 64 of 1989

ALLARDYCE LUMBER COMPANY LIMITED

v

LAORE

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 64 of 1989

Hearing: 21 and 24 April, 26, 27, 29 and 29 June, 30 July 1990
Judgment: 10 August 1990

Customary land - common law - ownership of foreshore and reefs - evidence of ownership of customary land - international law - State sovereignty - strict liability - defences to Rylands v Fletcher - limitation of actions.

Facts:

The Plaintiff Company was the holder of a 75 year fixed term estate over parcel No. 019-001-29, Lot 1 on L.R. 158 in Lofung, Shortland Islands. Prior to the granting of the fixed term estate, the land was freehold having originally been sold in 1914 by the great grandfather of the Defendant to a Mr N.C. Tindal for £5. At that time, the boundaries of the land were marked on the conveyance but, since then, the seaward boundary had been eroded by the sea. The Defendant (as representative of two families) disputed the ownership of the reefs, which fringed the shore on the eastern side of the land and the area of land which was below high water mark. He also claimed damages in respect of the Plaintiff’s use of and damage to the land. The Plaintiff sought declarations that it was allowed to use the land without interference from the Defendant. The Defendant counterclaimed for damages and for an order requiring the Plaintiff to lease the submerged area from the Defendant.

Held:

1. The ownership of customary land was based on immemorial user and, this was consistent with the common law. Whilst the nature of the foreshore was such that it was sometimes land and sometimes sea, for the purposes of the Land and Titles Act, it was land and might, therefore, be customary land.

2. The evidence of customary ownership of the foreshore was sufficient to establish that the custom of the area allowed ownership of the foreshore. As the foreshore was considered in custom as part of the land owned by the grantors, it would have been included in land sold to Mr Tindal subsequently registered as a fixed term estate. Accordingly, the Defendant no longer had any rights to it.

3. Under the common law, ownership of the reef and seabed vested in the State but that might be modified by a grant of certain rights to individuals. Customary rights were capable of supplanting the common law position but such rights had to be established by evidence. As no such rights had been proved in the current case the declarations sought by the Defendant were declined.

4. By international law, sovereignty was vested in the State and not in individuals. However, the concept of State sovereignty referred to in the preamble to the Constitution and in section 9 of the Delimitation of Marine Waters Act was wider than the concept being referred to in the context of ownership of the sea. A claim to individual ownership of the sea did not conflict with the States’ sovereignty.

5. (Obiter) As reefs were not land, the local courts could not rule on their ownership, but there might be other customary rights involved, short of ownership, which did fall within the local courts’ jurisdiction under section 231 (1).

6. (Obiter) Earthquake and malicious act of a third person both provided defences to any claim of strict liability under the doctrine in Rylands v Fletcher.

7. (Obiter) A licence "to construct such roads, railways, buildings and other works as may be necessary for the better exercise of the rights and licence hereby granted" did not give rights over land additional to those granted by the agreement.

Cases referred to:

Teteha & Others v. Registrar of Titles & Others [1980-1981] SILR 209
Talasasa v. Paia and Others [1980-1981] SILR 93
Cheung v. Tanda [1984] SILR 108
Lord Fitzhardinge v. Purcell [1908] 2 Ch. 139
Lord Advocate v. Wemys and another [1900] AC 48
Harvey v Mayor and Corporation of Lyme Regis [1869] 4 LR Exch 260
Lyon v The Wardens etc of the Fishmongers Company and Another [1876] 1 App. Case 662
Brinckman v Matley [1904] 2 Ch 313
Mellor v Walmesley [1905] 2 Ch 164
Denaby and Cadeby Main Collieries Ltd v Anson [1911] 1 KB 171
East London Waterworks Co. v Leyton Sewer Authority [1871] 5 LR QB 669
The Mecca [1895] P 95
Smiths Dock Co. Ltd v Tynemouth Corporation [1908] 1 KB 948
Mersey Docks & Harbour Board v Birkenhead Corporation [1915] 2 KB 312 & [1916] 1 KB 695

Legislations referred to: 

Constitution, section 1, 9, Schedule 3
Delimitation of Marine Waters Act Cap 95, section 9(1) and (3)
Lands and Titles Act Cap 133, Section 2, 231 (1)(b), (5), 232
Local Courts (Amendment) Act 1985
Limitation Act Cap 18

J. Sullivan for the Plaintiff
P. Tegavota for the Defendant

WARD CJ: The Plaintiff company is the holder of a 75 year fixed term estate commencing on 1st January 1978 over an area of land in Shortland Islands, parcel no. 019-001-29, Lot 1 on L.R. 158 Lofung, Shortland Islands.

Since 1977, the Plaintiff has operated a logging business in the Shortlands under a timber licence and, in order to facilitate that work, has constructed a camp and log yard on the land.

Prior to the granting of the fixed term estate, the land was freehold having originally been sold in 1914 by the great grandfather of the Defendant to a Mr N.C. Tindal for £5. At that time, the boundaries of the land were determined and marked on the conveyance but, over the years since then, the seaward boundary on both the eastern and southern sides has been changed both by natural forces and by the acts of the Plaintiff. It is effectively those changes which give rise to this action.

The changes can be clearly seen on Exhibit 14 and are that:

1. The sea has encroached on to the land over a substantial portion of the eastern boundary and a small portion of the southern boundary.

2. At other parts the land has been extended into the sea beyond the original boundary. On the eastern boundary this only involves the bases of two jetties and a small area where soil was pushed into the sea to protect some houses from coastal erosion. On the south-eastern point of the land an area totalling 0.68 hectares has been formed by pushing waste and soil into the sea to extend the log yard and, in 1982, building a wharf from logs and coral rock.

Overall there has been a net loss of land to the sea.

The Defendant in this case appears as the representative of a number of people of the Saraba and Kome families. In 1987, he made a claim for $250,000 compensation in respect of damage caused to the coastline by the log yard and wharf and later that year he gave notice to the Plaintiff that he intended, on behalf of the two families, to dispute the ownership of the Lofung reefs. These reefs fringe the shore on the eastern side of the land and consist of submerged coral heads off the southern boundary. The next year he wrote to the Plaintiff repeating his claim to the reefs.

In 1989, he claimed, on behalf of the families, the sum of $6,000,000 for the following damage:

1. The encroachment of the log yard and wharf at the south eastern tip of the land over what he claimed was his customary land.

2. The sinking of four vessels on or in the area of the Lofung reefs.

3. The discharge of oil into the reefs.

4. The Plaintiff's use of the seas around the area of the Lofung reefs.

He further claimed that, as the reclaimed area encroached on his customary land, the Plaintiff must obtain a lease from him in order to use it.

After a number of legal steps, the Plaintiff has brought this matter to court and seeks declarations that the Plaintiff is entitled without interference, to use:

(i) The log yard including any encroachment therefrom into the sea for the purposes of storing logs and timber and otherwise complying with the lawful obligations of the Plaintiff in respect of such logs and timber and for incidental purposes;

(ii) The said wharf or wharves for the purpose of loading ships or vessels with logs and timber lawfully produced for the Plaintiff and for incidental purposes;

After some confusion in the pleadings, the Defendant admits the essential facts of the Plaintiff’s case but counterclaims on the ownership of the reclaimed land and the reefs. He seeks the following declaration and orders:

A. That the reclaimed land and any land outside of the high water mark adjacent to the said registered land and including the Lofung Reefs is customary land and is not owned by the Plaintiff and nor does the Plaintiff have any right to use it for its logging operations or for any other purposes without the consent of the customary landowners who is the Defendant.

B. That damages have been caused by the Plaintiff to the said land referred to in paragraph (4) of the counterclaim. 

C. That the Plaintiff be ordered to pay compensation to the Defendant for damages caused to the said land, or to pay compensation to such customary landowners to be later identified if so ordered and such compensation shall be assessed by the court.

D. That the Plaintiff be ordered to take a lease of the reclaimed adjacent to the log pond from the Defendant or from such customary landowners as may be identified.

There is now no dispute about the reefs adjacent to the eastern shore. Evidence has been called and is not challenged regarding the erosion of that shore. The 1914 boundary is now below the present High Water mark and the Defendant no longer disputes the Plaintiff’s right to the portion of the reef within the 1914 boundary.

The Defendant bases his claim on the ownership of the land outside the 1914 boundary. This includes part of the foreshore, that is the tidal strip between the high water mark and the low water mark, and the sea and the reefs under it. He claims these areas for the people of the Saraba and Kome families because they are the customary owners. He also disputes the right of the Plaintiff to extend into these areas by the building of the log yard and wharf.

The Plaintiff’s case is that it is the owner of the fixed term estate within the 1914 boundaries, it is operating under a timber licence and the log yard and wharf were constructed to facilitate its operation under that licence. That is not in dispute. The Plaintiff contends that ownership of the foreshore and the sea bed vests in the State and therefore the Defendant cannot claim that ownership. The Court has heard substantial and well researched submissions on the status of the foreshore and sea bed and I shall return to this later. The Defendant, on the other hand, does assert customary rights of ownership over these areas and the burden of proving that lies on him.

Schedule 3 to the Constitution provides that customary law shall have effect as part of the Law of Solomon Islands except where it is and to the extent it is inconsistent with the Constitution or an act of Parliament. It has been stated many times by this Court that, if custom is to be relied on, it must be proved before the Court by evidence and must be proved each time. I would comment that the terms of paragraph 3(3) to the Schedule incline me to the view that these earlier rulings may have gone too far and that, until an act of Parliament provides for the proof and pleading of customary law, it should not be considered by the Courts. However, it has not been argued and neither party here has sought to dispute the earlier authorities on that point. Thus, in order to prove his case, the Defendant must prove the existence of customary law in relation to the areas in question and then his rights to ownership under that customary law.

What then is the evidence of customary law called by the Defendant to prove his right to the ownership of the foreshore and reefs? I have to say there has been virtually none. 

The Commissioner of Lands was called and told the Court that, in relation to the foreshore, it was his practice to regard it as being customary land based on native inheritance. That does not amount to evidence of customary law in this case. The Defendant also gave evidence in which he stated that he claimed customary ownership of the foreshore, the sea and everything in it. He asserted his right was based on a decision of the Famoa Chiefly Council in 1988 and on his descent from the original grantors of the land. He also stated that his rights in the sea went as far as the boundaries of other families or clans but he called no evidence of such boundaries. Apart from the bare assertion of such a customary right, he gives little evidence of it and calls no independent expert evidence.

Mr Tegavota suggested to the court the fact the grantors of the land had the right to transfer it in 1914 demonstrated their ownership under custom and, thus, any land remaining that was not transferred was necessarily customary land. I accept that, in general terms, there is strength in that argument. The Defendant's claim is based on his descent from his ancestors and the inheritance of their right of ownership. If that right of ownership allowed them to transfer part of the land, it also demonstrates their right to own the remainder. The first question, in this case, is whether that right extends over the foreshore.

The Plaintiff’s case is that, on the authorities in England, ownership of the foreshore, like the seabed, vests in the State. As far as the foreshore is concerned, I feel that is too sweeping a statement as, I think, Mr Sullivan conceded. Under English common law it is clear that the foreshore and rights over the sea bed in some areas could be owned by the owners of the land adjacent. Many of the authorities deal with grants by the early English monarchs and others refer to the rights arising out of immemorial user. Generally, however, under common law, in the absence of such rights the foreshore does vest in the State giving rights of user to the public and that is the position here. However, common law, by paragraph 2 of Schedule 3 of the Constitution, is subordinated to customary law. If there is evidence of customary ownership of the foreshore which could supplant the common law presumption of state ownership, it may prevail. However, in practice, the ownership of customary land is generally based on immemorial user and, as such, is consistent with the common law. Whilst the nature of the foreshore is such that it is sometimes land and sometimes sea, I feel that, for the purposes of the Land and Titles Act, it is land and may, therefore, be customary land.

It has not been disputed by the Plaintiff that the land in question belonged to the forefathers of the Defendant and any that was not conveyed remains as customary land and belongs to the Defendant and his line. No other evidence of customary ownership of the foreshore was adduced but, although it was scant, I feel it is sufficient to establish on balance that the custom of the area allowed ownership of the foreshore. Thus it is customary land and, if it was not included in the land sold to Tindal, the Defendant has the ownership. 

As a result of the erosion, the only area of foreshore that is now relevant is the part covered by the jetties and the small area on the eastern boundary and the area covered by the log yard and wharf on the southern boundary.

In order for the Defendant to prove his claim, I must also be satisfied that the foreshore in question was not conveyed with the land to Tindal and remained in the ownership of the vendors at that time. If, as the Defendant asserts, his ancestors had the rights of ownership of the land down to the low water mark, thus including the foreshore, I am sure they would also have considered they had the right to sell it to Tindal.

The 1914 boundary was described in the deed of transfer by reference to survey marks and, by using those, the original boundary was ascertained by survey and marked on exhibit 14. When he had drawn it, the surveyor marked it as the "1914 High Water Mark" but I must consider whether that is the correct description. If the original document is consulted, the written description states the boundary extends from "tree A to post B 60 chains frontage to saltwater". The points marked on the plan which give rise to the line marked as 1914 High Water Mark on Exhibit 14 are, therefore, the edges of the saltwater. In a tidal area, that may have been anywhere between the high and low water marks but it is clear to me that, if the foreshore was considered in custom as part of the land owned by the grantors, they would consider their rights as extending to the edge of the saltwater as far as the low water mark. In those circumstances, I am satisfied they would have included that in the sale to Mr Tindal. When the fixed term estate was registered, the Commissioner of Lands told the Court the description used was intended to cover the land originally described in the 1914 conveyance. On the evidence, I do not feel the Defendant has proved his ownership of the foreshore. I am satisfied it was included in the land transferred to Mr Tindal and the Defendant no longer has any rights to it where it bounds that land.

I now pass to the reefs and area below the low water mark. The Defendant bases his claim on three matters:

1. His descent from the original grantors of the land to Tindal. 

2. The decision of the Famoa Chiefs that the "Saraba and Kome’s Family Group are the rightful owners of Lofung Reefs".

3. The fishing rights over the area which, he says, in custom belong to the Saraba and Kome families.

As I have already stated, the Plaintiff’s case is that the sea bed is vested in the State. They base that assertion on the common law and on section 9 of the Delimitation of Marine Waters Act 1978. 9(1) and (3) reads:

(1) The sovereignty of Solomon Islands extends beyond its land territory and internal waters over its archipelagic waters and territorial seas and to the airspace thereover as well as to the seabed and subsoil thereunder.

(3) The exercise by Solomon Islands of its sovereignty and sovereign rights under the provisions of this section is subject to the customary rules of international law.

By international law, sovereignty is vested in the State and not in individuals. Mr. Sullivan suggests the answer to the question of who exercises sovereignty in the Solomon Islands is found in the Constitution. Section 1 refers to the Solomon Islands as a sovereign democratic state and, paragraph (a) of the declaration in the preamble declares all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution. If he is right in that, he points out that customary law cannot establish any rights over the seas of Solomon Islands because that would bring it into conflict with an act of Parliament.

I am afraid I cannot accept that argument. The concept of sovereignty referred to in section 9 and under international law is far wider. It is a term that embraces the independence of a state in relation to all others and to the paramount power it exercises over its internal affairs. To suggest any individual claim to ownership of the sea conflicts with that sovereignty is to take it out of context.

My study of the authorities suggests that, under the common law, ownership of the sea bed vests in the State but that may be modified by a grant of certain rights to individuals. International law and the common law demand rights of free passage and of fishing in areas of sea and this generally applies to areas of sea and tidal waters whether owned by the State or granted to an individual. That also applies to Solomon Islands. However, I feel that the court may still be satisfied by evidence that some customary rights can exist over the sea and such customary rights can supplant the common law position.

Returning, then, to the basis of the Defendant’s claim to the sea, the first ground that he is descended from the grantors of the land will help to show his ownership of such rights if they are found to exist but does not establish the existence of the customary right itself.

The second ground is that the Famoa chiefs have proved both the right and his claim to the right. Mr Tegavota suggests that the chiefs’ decision has the status of a court ruling because, by the Local Courts (Amendment) Act 1985, the decision of the chiefs can be recorded by the Local Court and shall then be deemed to be a decision of the Local Court for the purpose of any law. Unfortunately there are a number of objections to that suggestion.

In order to achieve that status, the procedure in section 8D and 8F must be followed. There is no evidence that was done. In particular there is no evidence that the decision was acceptable to both parties or that a copy of the decision was recorded by the local court. Even if it had been recorded as a decision of the local court, its status as far as these proceedings are concerned would be doubtful. Judgments in customary land cases are inter partes. The present Plaintiffs were not parties to the action and indeed, by section 231(5) of the Land and Titles Act, a local court would not have jurisdiction over the Plaintiff unless he had consented and there is no evidence of such consent.

I also am not satisfied that a local court or the chiefs had the power to determine ownership of the reefs. By section 231 (1) of the Land and Titles Act, the local court and the chiefs have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land subject to certain exceptions. By paragraph (b) of 231(1), their jurisdiction does not extend to any matter or proceeding involving a determination whether any land is or is not customary land. The jurisdiction to determine that vests exclusively in this Court by section 232.

The evidence is that the reefs the chiefs considered are all submerged and, as Mr Sullivan points out, are part of the sea. In those circumstances, the chiefs were not considering customary land or matters affecting or arising in connection with such land.

By section 2 of the act, customary land means:

any land (not being registered land, other than land registered as customary land, or land in respect of which any person becomes or is entitled to be registered as the owner of an estate pursuant to the provisions of Part III) lawfully owned, used or occupied by a person or community in accordance with current customary usage.

The definition of land includes "land covered by water." A similar definition is used in English acts and a number of authorities deal with the point. I do not cite them individually but the general thrust is that land covered by water does not include the seabed. On a consideration of these authorities it is clear that the essence of the definition is the word land and that is used as the opposite to sea. Thus areas covered by lakes or rivers may be included as land whilst the tidal stretches of rivers will not. Similarly, if a man excavates his land and allows the sea to flood the excavated area, it does not, by that, cease to be land.

If the local courts are to consider the ownership of customary land, it must be land. This Court must determine that and I am satisfied that areas permanently and naturally covered by the sea are not land covered with water in the definition in the act. It cannot therefore be customary land and the Lofung reefs equally are not customary land.

The Plaintiff takes the matter a stage further and suggests that, as the local courts have jurisdiction only to hear matters affecting or arising in connection with customary land, they have no jurisdiction to deal with the reefs at all. I do not need to rule on that here but I accept that, as the reefs are not land, the local courts cannot rule on their ownership as the chiefs purported to do. However, whilst reference in this case to the Lofung reefs has been in terms of ownership, there may be other customary rights involved short of ownership. Rights such as fishing rights or the right to collect rock from the reefs or sand from the sea bed may still be involved. If those rights spring, through custom, from the ownership of the adjacent customary land, they could give rise to proceedings of a civil nature affecting or arising in connection with customary land and could, therefore, fall within the jurisdiction of the Local Courts under section 231(1).

The result of all this is that I cannot accept the decision of the chiefs as having any value to the Defendant’s case. Had he called evidence of the matters that he no doubt called before the chiefs, this Court could have considered it as part of the evidence of customary rights over the sea, but none was called except in relation to fishing rights to which I now pass.

The final claim by the Defendant relates to his customary right to fish the area of the sea above and around the Lofung reefs. The only evidence he called was that his family had in the past fished in this area but did no longer. No evidence was led to suggest any more than that. There was never any evidence of the existence of any customary right or that this was a right exclusive to the Defendant’s family or that it sprang from that customary right.

Thus, on the evidence before the court, I am not satisfied the Defendant has established the existence of any customary right to the sea in the Lofung area nor any right attaching to his line.

As far as the declaration sought by the Defendant in paragraph A is concerned, the claim that the reclaimed land is customary land is based on the fact it has encroached on the foreshore and the sea belonging to the Defendant. He has not discharged the burden of proving any customary right over the sea or ownership of this section of the foreshore. I decline to give that declaration.

As the Defendant has failed to establish his right or the existence of any customary rights to the areas in question, I must also refuse to make the declarations or orders in paragraphs B, C and D.

That is an end to the matter as far as the defence case is concerned and I need go no further but had I needed to consider the actual claims for damages made by the Defendant, I should have found that, whilst I accept the marine life has declined and changed in species over the last years, there was no evidence that the damage was caused by any act of the Plaintiff. Neither would I have found there was any evidence of damage caused by the various sunken vessels or by any general oil leakage.

As to the two major oil spillages that it is admitted occurred, it is not disputed one was caused by an earthquake and the other by the malicious act of a third person. Both would have provided defences to any claims of strict liability under the doctrine in Rylands v. Fletcher but there was no evidence of the extent of the leakage or of any resulting damage.

The Defendant originally claimed damage to fish in the area caused by blasting during the construction of the wharf in 1982. The Plaintiff claims that is statute barred under the Limitation Act as is the original construction of the wharf and Mr Tegavota no longer pursues those claims.

That leaves only the Plaintiff's declarations. The Court is asked to declare that Plaintiff has the rights set out without interference from the Defendant or his people.

As I have said, the Defendant has failed to prove he has ownership of the foreshore and has failed to prove any customary rights to the sea and reefs. In those circumstances I make the declarations sought by the Plaintiff.

There is one final matter I should mention. Mr Sullivan suggested to the Court that the phrase in the logging agreement that the company is given a licence "to construct such roads, railways, buildings and other works as may be necessary for the better exercise of the rights and licence hereby granted" allowed it to build the wharf and extend the log yard beyond the boundaries of their land.

I cannot accept that such a phrase gives rights to construct works in disregard, as it were, of other people’s rights. I do not need to rule on the precise scope of those words but I would suggest they cannot give rights over land other than that covered by agreements. Mr Sullivan argues that as the seabed was vested in the State, the licence which is granted by the State gave them an unfettered right to encroach if that encroachment was for the better exercise of the timber rights. I would be most reluctant to accept that could be correct any more than it would for the company to cut a road through the land belonging to someone who was not part of the logging agreement because it gave a better or quicker access to the sea or to other logging concessions or that they were entitled to do any other act that interfered with the rights of people outside the agreement without their consent.