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Akeso v Attorney General [2024] SBHC 165; HCSI-CC 599 of 2019 (29 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 599 of 2019

BETWEEN:

ISHMAEL AKESO
(The custom owner of Ngabalipali/Nganalobu customary land comprising the Western End Extension of LomLom
Airport in Reef Island, Temotu Province.)
Claimant

AND:

ATTORNEY GENERAL
(Representing the Ministry of Communication and Aviation)
First Defendant

Date of Hearing: 14 November 2024
Date of Decision: 29 November 2024

Mr B Upwe for the Claimant
Mr N Ofanakwai for the Defendant

JUDGMENT

1. The Reef Islands in Temotu Province has an airstrip known as Lomlom. In 2012 the Temotu Provincial Government commenced the process for acquiring land on the western end of the airstrip so that it could be extended to accommodate a Dash 8 aircraft operated by Solomon Airlines. The trial was concerned with the Claimant’s claim against the First Defendant who represents the Ministry of Communication and Aviation.
2. At paragraph 10 of the statement of case in the claim the Claimant pleads:
   • “Despite the incomplete acquisition process as herein described and the lack of any lease or sales agreement entered into between the Claimant and the First, Second and Third Defendant, the First Defendant continued to use the Western End Extension of airport for its beneficial interest to date.”
3. At paragraph 11 he pleads:
   • “The actions and inactions of the First, Second and Third Defendants as herein described have caused serious loss to the Claimant as hereunder particularised:
   • (i) Loss of the right to use and quiet enjoyment of his land;
   • (ii) Loss of fruit trees and other trees of economic and cultural significance;
   • (iii) Loss of garden and coconut plantation area; and
   • (iv) Financial loss in terms of the lease payment or sale of the subject land to the Solomon Islands Government.”
4. The relief sought is a claim that the First Defendant has trespassed on his land. He seeks damages which can only relate to the allegation of trespass by the First Defendant.
5. Counsel agreed on the following facts and issues:
   • “A. AGREED FACTS
   1. That Ishmael Akeso and his line owned Ngabalipali or Nganalobu customary land pursuant to the decision of the High Court of Solomon Islands in the Customary Land Appeal Case Number 14 of 1982 on 9^th March 1983.
   2. The Western End Extension of Lomlom Airport had been approved by Aviation Authority and had been since used by the Dash 8 Aircraft.
   3. The Western End Extension of Lomlom Airport is still under customary land status.
   4. The Court has no power to hear claim on customary land.
   5. That there is no adverse claim against the ownership of the Claimant over Ngabalipali or Nganalobu customary land boundaries as described as follows:
   • “An area of land in the and around the Grawa (Gawa) school bounded on the westerly side by the sea shore or passage and also Ngamanblak the land of Kuarde, on the easterly siade by a line running approximately parallel to the seashore through the centre of the most easterly houses of Grawa (Gawa) village, on the Southerly sisde by a line running from the tall Alite tree to meet the seashore at right angles and on the Northerly side running North East from Ngatobola to join the seashore-the entire boundary being marked off by the C.L.A.C with markers on the 7^th of May 1982 in accordance with the rough plan used for the purpose of general identification only and attached hereto and marked “C”.
   6. That attempts to identify the Claimant’s customary land (Ngabalipali or Nganalobu) boundary on the ground to ascertain whether it covered part of or whole of the western end extension was not possible.
   • B. Agreed Issues
   • (1) Whether or not the Defendant has trespassed onto the Claimants land.
   • (2) Whether or not the Claimant is entitled to a claim against the Defendant.
6. It seems that the Claimant has acquired his interest in customary land referred to as Ngabalipali following a ruling in favour of his uncle.
7. On 6 November 2016 the Claimant was paid $28,310.00 as compensation for the pruning, clearing and felling of his customary land in what has been described as the fly over area. Moses Virivolomo gave evidence of the Memorandum of Understanding reached between the First Defendant and the customary landowners. His evidence is that the extension does not encroach onto the Claimant’s customary land which is part of the fly over area. That evidence is consistent with what is set out in the sworn statement of the Claimant filed on 27 April 2022 in which he included a hearsay summary of a person described as a surveyor, valuer and a former acquisition officer, to the effect that his land is useful for the purpose of approaching and take off of aircrafts.
8. I understand that an area has been cleared or trees have been pruned in the fly over area for the safety of aircraft taking off and landing. That issue has been dealt with and the Claimant has accepted the compensation for that loss.
9. As Mr Upwe of counsel for the Claimant has pointed out the elements of trespass to be proved were set out in Gesring Gabing Bob v Stettin Bay Lumber Company Ltd [2008] PGNC 120 as:
   • “(a) that the defendant entered land, either directly or indirectly;
   • (b) that the defendant did so by some intentional act;
   • (c) that the defendant had no lawful authority;
   • (d) that the claimant was in lawful possession of the land; and
   • (e) that the claimant’s enjoyment of the land was interfered with.”
10. I accept that these elements are appropriate in this jurisdiction. Counsel have not argued that aircraft flying over land would amount to a trespass. That is because there would not be entry on to the land, either directly or indirectly.
11. In 2018, 2021 and 2024 there were invitations to the Claimant to point out the boundaries of his land so that there could be a check to see whether the runway in fact encroached on his customary land. The last of those occasions was the result of an order from the Court. The Claimant did not attend on any of those occasions.
12. It has appeared to me that the parties have had different understandings of encroachment. I have had the benefit of reading the reports annexed to the sworn statements and of seeing the witnesses in Court. I accept the evidence of Mr Alfred Pita’a who confirmed that the customary land of the Claimant was further away from the runway. That is consistent with the acceptance by the Claimant of the compensation for loss of the trees in the fly over area.
13. The Claimant has not satisfied me on the balance of probabilities that there has been a trespass on his land. The report of the valuer would be of little assistance even if there was evidence of encroachment. There is no sufficient material placed before me that shows the runway is in fact on the Claimant’s land.
14. This case is not concerned with whether land should be leased or acquired, it is a claim in trespass. I am not satisfied that the runway encroaches on to the Claimant’s land. On the evidence before me his land is where the fly over area is located and he has accepted the compensation provided for that. The claim for trespass must fail.

Orders

(1) Judgment is entered for the First Defendant.
(2) The Claimant is to pay the costs of the First Defendant on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge