High Court of Solomon Islands

&#1r>High Court of Solomon Islands
Civil Case No.155 of 1991
Before: Muria ACJ
#160;
Hearing: 261992Judgment:une 1r> A. Nori Nori for the Defendant

MURIA ACJ:
Tfendant denied thed thed the claims and in his defence he says that the plaintiff and her line are not the owner of Peronikura land. The defendant further says that he bought the land from the rightful owner of the land whom he says was Giapoa and as such he cannot be a trespasser.

Following hiefs’ 217; hearing the plaintiff issued notices to the defendant to vacate the land. The defendant, however, did not leave the land.

Giapoa and tfendant thet then took the matter to the Local Court but the case was dismissed by the Local Court on 18/7/90 for non-attendance by Giapoa and defendant.

The tort of trespass to land is concerned with the interference of a person’s possessory right to his land. I have said in Ganifiri -v-Barai and Meenene Civil Case No. 22of 1991 (Judgmeudgment given on 5 December 1991) that:

"In a case of trespasespass to land it will only be actie the tiff tiff hown thwn that he is in possession of the land ornd or that he is entitled to immediate ande and exclusive possession as the tort of trespass iically a violation of the right to possession, not of&#/i>

In nifiri>&#1i> caseershiership was not sueissue. Whe. What was in issue was which side of the land the alleged trespass occurred. The ownership question had dy betabliby the Local Court in 1966 and confirmefirmed by d by the High Court in 1967. The defendantndants in Ganifiri's case obtatheir title tole to the land from one Maelimani whose ownership over the land had not been challenged. The plaintiff's clai&#160anifiri's

In the precase, the evie evidence shows that the defendefendant dant has been living on the land since 1979. He was allowed to do so by Giapoa. It is also clear from the evidence that as a result of the defendant being allowed into the land by Giapoa, a dispute arose between the plaintiff and Giapoa. The plaintiff disputed Giapoa’s right over the land. The evidence shows, and I accept, that even before 1983 the plaintiff had already disputed Giapoa’s right over the land.

It is also obvious from the evidence that despite the plaintiff's dispute over Giapoa’s right to sell the land to the defendant, Giapoa went ahead and sold the land in 1983. Giapoa’s action led to the plaintiff referring the matter to the Chiefs in 1986. In 1987 it was decided by the Chiefs that the plaintiff was the rightful owner of Peronikura land and not Giapoa.

The Chiefs’ dec wion was challenged in the Local Court by Giapoa and there is evidence that he had the backing of the defendant. However, on 18 July 1990 the Local Court struck out Giapoa’s claim, and confirmed the Chiefs’ decision that Desy Sura (the plaintiff in this case) was the rightful owner of Peronikura land.

Mr. Nori argued that the defendant has validly acquired his rights over the land through Giapoa and for the plaintiff to establish trespass on her land she show conclusively that she is the owner of the land and not Giapoa.

Mr. Radclyadclyffe, e othe other hand submitted that the plaintiff need not prove her ownership conclusively. Counsel further argued that if the plaintiff is the owner of land the dant could not have obtained a good title from Giapoa.
&

Counsel for the plaintiff further contended that the defendant could not rely on claim as a bona fide purchaser as he knew about the plaintiff's dispute against Giapoa over the ownership o land even before the 1983 transaction between Giapoa and hand himself.

It is not disputat on 2 on 28 September 1987 the Chiefs heard the dispute between the plaintiff and Giapoa over the ownership of Peronikura land and the decision was made on 10ber 1987 when it was decided that the plaintiff was the rige rightful owner of Peronikura land. It is also not disputed that the defendant has been living inside Peronikura land, although at one stage he was suggesting that the name of the land was Oba. The suggestion by Counsel for the defendant is that the defendant cannot be a trespasser because of his occupation of the land through a valid purchase transaction with Giapoa.

It cannotoubted that that the plaintiff, even if she has not been occupying the land herself, her tribe who owned the land with her, has been in possession of the land. However even if the plaintiff ha been in possession of the the land, by virtue of the Chief's decision granting the ownership of the land to her and her tribe, she is entitled to immediate possession of the land. Therefore, in my judgment, the plaintiff has established her right of possession over Peronikura land entitling her to sue for trespass. The plaintiff does not have to prove her title conclusively. As long as her right to possession has been interfered with the plaintiff can bring an action for trespass.

As to the validi the 19he 1983 sale to the defendant, the position of Giapoa before the 1987 Chiefs' decision must be considered. Although dispuad already been made with Giapoa over the ownership of the land even before 1983, there wase was no decision made between Giapoa and the plaintiff as to who in custom owns Peronikura land until 10 October 1987. The position must therefore be that before the 10 October 1987, both Giapoa and the plaintiff had competing claims of ownership right over Peronikura land. Thus despite the existence of the dispute over ownership of the land between Giapoa and the plaintiff, it cannot be said that Giapoa had no authority to permit the defendant to occupy that part of the land in question. However, whether Giapoa could actually proceed and sell the land is another matter altogether.

In this case weconcernecerned with the occupation by the defendant of the plaintiff’s land. I say the plaintiff’s land because unless there is anything to the contrary, the Chiefs have clearly de that the land in question tion belongs to the plaintiff. The right of ownership or title over the land is a matter which obviously is of relevance as it provides the party who has such right or title with a defence to an action of trespass. Right of ownership or title is also relevant where the defendant disputes the exclusiveness of the plaintiff’s possession.

On thdence I find the dthe defendant has been occupying the plaintiff's land since 1979 with the permission of Giapoa whose right of ship over the land then had not vet been decided nor that of the plaintiff. Thus the entry ntry by the defendant onto the land prior to the Chiefs' decision in 1987 could not be said to be without authority.

In 10 Oc 1987, the owne ownership of the land had been given to the plaintiff. That decision granting the right of ownership over the land was made by the Chiefs. Thus not have to decide on the issue of ownership of the land wend we are dealing with here. As a matter of law this Court has no power to decide on the question of ownership of a customary land. The law gives the power to do so to the Chiefs, Local Courts and Customary Land Appeal Courts. This Court therefore must accept the unchallenged decision on the question of ownership of customary land of any of the abovementioned authorities.

In thie the Chiefs̵’ decision of 10 October 1987 had been confirmed by the Local Court on 18 July 1990 after striking out Giapoa's claim of ownership over Peronikura land. There has not bey further challenge to the the plaintiff's right of ownership and so the Chiefs' decision granting that right to the plaintiff must stand and this Court must accept it as conclusive evidence of the plaintiff's right of ownership unless there is shown good reason why it should not be accepted.

Parliament passedlaw inaw in 1985 empowering the Chiefs to hear and determine issues over customary land, including question of ownership. Parliament considered it appropriate that such persons should decide oh matters. It will be absurabsurd to suggest that Chiefs' decision over customary land cannot be recognised by this Court or any Court particularly where the Chiefs have made their decision in the exercise of their lawful authority conferred on them by the Local Courts (Amendment) Act 1985.

The Chiefs' decisionr cver customary land properly reached must and will be respected by the courts subject of course to successful challenges made to such decisions.

I thee cannot accept thpt the suion by Counsel for the defe defendant that this Court cannot accept the Chiefs' decision as conclusive on the right of ownership overland in question.
As I have accepted that the right of o of ownership over Peronikura land had been clearly and conclusively decided by the Chiefs in favour of the plaintiff, the lawful authority from whom permission should be sought before entry or occupation of Peronikura land as from 18 July 1990 must therefore be the plaintiff. Defendant’s right acquired through purchase from Giapoa, although confers on him to occupy the land until 10 October 1987, it cannot provide him with a defence to the plaintiff’s action of trespass. The period of such trespass, must I feel, commence on 18 July 1990 and not the date of the original entry.

The defentherefore by h by his continued occupation of the plaintiff's land since 18 July 1990 has committed the tort of trespass.

Thentiff’s claim laim for damages for trespass and injunction must succeed with damages to be assessed but limited to $5,000.00 The injunction granted is in the following term:-