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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 22 of 1991.
DAVID GANIFIRI
v
b0;
HANIEL BARAI and JEREMUEL MAENENE
Before: Muria J
Civil Case No. 22 of 1991.
HearingNovembevember 19er 1991
Judgment: 5 December 1991
r>A. Radclyffe for the Plaintiff
J. Remobaiu for the Defe Defendant
MURIA J: Tae plff suing on behalhis lhis line claims against thet the defendants damages for trespass and injunction preventing the defendants
from remaining on Rade Land The defendants deny trespassing on Rade Land and and ask task the court not to issue the injunction
sought by the plaintiffs.
The plaintiff's case is that his line is the owner of Nafinua Land, sometimes also called Rade Land. He said the land was bought by
his grandfather Manufioa before 1920 and that when his grandfather died the land transferred to his father Justice Ganifiri who died
in 1989. He also stated that in 1966 there was a Native Court case between his father and one Maelimani in which the court said that
his father was the owner of Nafinua Land and Maelimani was the owner of Fera'abu Land. The plaintiff further stated that the boundary
between Fera'abu Land and Nafinua Land is Fera'abu stream or Fera'abu River. He relied on his boundary which was accepted by the
CLAC in 1989 in the case between himself and one Mahlon Mauara.
The plaintiff said that the defendants built an iron-roofing house and planted coconuts inside his land. He was not aware that the
defendants purchased that of the land on which they built the house and planted coconuts.
The defendantndants' case is that they are not trespassing onto the plaintiff's land because the land on which they built the house
and planted coconuts is their land which they boughm Maelimani in 1975 for AU$900.00. Patterson Sui who is thes the son of Maelimani
gave evidence for the defendant and stated that he was present when the AUS900.00 was paid and received by his father.
The defendants relied oied on the fact that the only occasions when Maelimani went to court with Ganifiri were in 1966 and 1967 and
at no other times. The defendants said thatr rights were properly obtained through Maelimani. They rely relied on the sketch map
showing the boundary used and accepted by the Courts in 1966 and 1967.
The defendants agreed they built an iron-roofing house and planted some coconuts around the area where the house was built.
The question is whether the defendants are guilty of trespass. It is therefore necy to consider whether the pthe portion of land on
which the defendants built the house and planted coconuts is within Nafinua Land orin Fera’abu Land. If . If it is within Fera'abu
Land then the defendants are not trespassers as they were given the land through purchase in sum of AUS900.00 in 197 by Maelimani
who owned Fera'abu. If it is within Nafinua (or Rade) Land then the defendants may be trespassing.
In the present case, de order to ascertain whether the defendants have built the house and planted coconuts in the plaintiff’s
land it is necessary to consider the boundary of the plaintiff’s land which is Nafinua (also called Rade) Land.
The plaintiff gaveence ence that the boundary between his land Nafinua and Fera'abu land is the Fera'abu Stream or Fera'abu River
as indicated in his map which map he also relied on at the 1989 CLAC hearing between himself and Mauara. That boundary, he said,
was the same boundary as that found by the Native Court in 1966 and High Court in 1967.
The plaintiff'sess Timo Timon Timi gave evidence that the boundary between Rade Land and Fera'abu Land starts at Fera'abu stream extending
to Nketo Stream and then extends down to Kwaingurunguru River. On the other side, the boundary,dary, he said, extend, from Fera'abu
stream to Bulia River.
Tfendants called Patteratterson Sui who is the son of Maelimani who is now deceased. Patterson Sui gave evidence that he was present
at the Native Court hearing in 1966 between his father and Justice Ganifiri, the plaintiff's father. He did not, however, attend
the High Court hearing in 1967. Patterson Sui gave evidence that there was no such river or stream as Fera'abu River or Fera'abu
Stream. He said even if the High Court in 1967 used the name Fera'abu Stream, he did not know of any such stream. He stated that
the boundary of the land sold to the defendants starts at Baolalala and extends to Haumaifi and then to Sasau Stream and then to
Bibisu stream and then to Luama River and then to Gilo River and across to Dukuasi and then follow Kwaingurunguru stream and back
to Baololalala. He also stated that Nafinua (or Rade) Land is on the other side of the land which his father sold to the defendants.
In court rson Sui furthfurther stated that he is not related to Mauara against whom the plaintiff went to court in 1989 CLAC. The
only time that his father went to court with the plaintiff's father wer1966 and 1967. He reiterateerate that in 1966 and 1967 the
Native Court and High Court accepted both parties maps showing' the boundaries of the land in question.
One of the defendantselariel Barai gave evidence that he and his brothers bought the land from Maelimani in 1975 for AUS900.00. He
stated that he is related to the plaintiff. He stated that since they lost againstimani in 1966 and 1967, he , he went to Maelimani
and asked to buy a piece of land which he bought in 1975. He also stated that although they bought the land in 1975 they did not
build on the land until 1984. He also stated that the boundary was that mentioned by Maelimami's son. Patterson Sui.
Counsel for the tiff suff submitted that the 1967 High Court judgement is important and one which cannot now be challenged. Counsel
further submitted that the High Court in 1967 referred to the boundary betwera'abu and Nafinua as Fera'Fera'abu Stream.
Counsel for efendants ants agreed to the 1967 High Court judgement. But counsel said that on the basis of the 1967 decision, Maelimani
was clearly the owner of Fera'abu Land the boundary of which was thathown on the map produced toed to the Courts in 1966 and 1967
and as such the land which Maelimani sold to the defendants was the land which Maelimani was entitled to sell as being part of Fera'abu
land.
The evidence ly shows tows that the two lands, Fera'abu and Nafinua are adjacent to each other. I am satisfied that the boundaries
of the two lands as accepted by the Nativet and High Court were those shown in the sketch maps which hich both parties produced at
the 1966 and 1967 hearings. I accept that the parties to the 1966 and 1967 hearings were Maelimani and the plaintiff's father Justice
Ganifiri.
On the evidencere this this Court, it is perfectly plain that in 1967 the High Court did not hear any argument about the boundaries
of Nafinua and Fera'abu Land but accepted the boundaries as contained in the sketch maps produced by b by both parties. There has
been suggestion by the plaintiff that the learned Chief Justice in 1967 stated that the boundary between Fera'abu Land and Nafinua
Land was Fera'abu Stream. That being the case, Nafinua Land extends to Fera'abu stream. I have the advantage of reading the note
of Oral Judgement (Exh.2) of the 1967 proceedings produced by the plaintiff and the records of the evidence and Note of Oral Judgement
(Exh.5) also of the 1967 proceedings produced by the defendants. Having read those records together with Exh. 4 which is the certified
copy of the map used in the 1967 High Court Appese. CC2i>CC2/67, I have nithesitation in concluding that the name "Fera'abu Stream" was never used by the learned Chief Justice in 1967.
The passage from the 1967 judgement which ievants:
“Thtsfacts are not in disn dispute. Both parties have put in sketch maps, the land being as yet unsurveyed, which correspond
fairly closely and I think there is no confusion in the minds of the parties as to the boundaries o;" the area of land which is in
dispute. It is admitted that the Appellant was, and still is, the owner of Nafinua and that He oed the land across the ary stry stream called Fera'a60;by v>by virtue of permission granted to him by called Talianga who was a linesman, by a female line by descent, of the Respondent.”8221;
(underlining is mine).
Tarnedf Justice was thes thes there saying that both - parties knew fairly well their boundaries and that Ganifiri occupied the land
c Fera’abu and "the boundary stream" refeto in the judgemedgemengement by the learned Chief Justice cannot be a reference to Fera'abu stream because there was no evidence
before the court of such a stream, none that can be gleaned frh. 5 and none from exh.4). .4). The learned Chief Justice could not
be expected to name the stream "Fera'abu Stream" in his judgment when there was no evidence before him of such a stream. The only
sensible conclusion is that the parties at that time knew their boundaries and the stream which separated their lands. They had sketch
maps which showed their boundaries and they knew very well what that streams was. From their sketch maps which the Court accepted
(which is Exh. 4) there was no such stream as Fera'abu stream.
Thus in soas the boundaoundary separating Fera'abu land and Nafinua land is concerned I cannot accept that the boundary spoken of
by the High Court in 1967 is Fera'abu Stream or Fera'abu River.
ocal Court in 1984 acce accepted the boundary of Nafinua (or Rade) Land and that boundary clearly resembled the boundary as shown
in Exh. 4(which was accepted b High Court in 1967). In 1988, again the Local Court after fter another survey of the Rade Land found
exactly as the Local Court did in 1984. However, it was the CLAC in 1989 which accepted the plaintiff's boundary. But the proceedings
before the CLAC in 1989 was simply in the form of submissions by the appellant who is now the plaintiff and by the Respondent Mahlon
Mauara.
The plaintift satisfy tsfy this court on the evidence that the area where the defendants built the iron roofing house and planted
coconuts is within the boundary of Nafinua (or Rade) Land as accepted by the High Court in 1967. Every invasion of another's property,
however slight, is a trespass. But the burden is on the plaintiff to prove such invasion of his right in the present case.
vidence before me showsshows that the plaintiff accepts the boundaries which the High Court accepted in 1967 in the case between his
father and Maelimani over Fera’abu Land. The plaintiff accepts that Maelimani sold a piece of land to the defendants. That,
piece of land is within Fera’abu land according to the evidence of Maelimani’s son, Patterson Sui who witnessed the sale
by his father and payment of AUS900.00 by the defendants. There has never been any challenge to that sale since 1975 nor has there
been any further dispute between the plaintiff and Maelimani since 1967. Those evidence are clearly supportive of the defendants
rather than the plaintiff and as such I cannot be satisfied that the defendants are trespassing on the plaintiff’s land.
The otherment raised byed by the defendants is that the 1989 case was between the plaintiff and Mahlon Mauara and did not bind the
defendants. This is because, judgements in customary land cases are jut inter parties. In Solomonlomon Islands the authority that
judgement in customary land cases are ‘judgement inter partes’ is the case of Talasas Paia and> Anotheri>[1980-1981] 981] SILR 93. I accept that the 1989 CLAC decision did not bind the defendants in the present case as there
is no evidence to sufficiently link Mahlon Mauara and the present defes. The present defendants pnts purchased the land from Maelimani
and as I have already found that the boundaries of Fera'abu land and Nafinua Land were that which the High Court accepted in 1967,
these defendants cannot on the evidence before this court, be forced out relying on the 1989 decision from the land which they purchased
from Maelimani.
On the evidence before this court, the plaintiff has failed to persuade me that the defendants have committed the tort of trespass
as claimed by the plaintn his statement of Claim. The plaintiff’s claims for damages and injunction are theretherefore refused.
Order Jnt for the dehe defendants with costs.
(G(G.J.B. Muria)
JUDGE
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