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British Petroleum PLC v Tapumanaia [2003] TVHC 31; HC Civil Case No 02 of 1999 (30 September 2003)

IN THE HIGH COURT OF TUVALU
CIVIL JURISDICTION

Case No. 2/99

BRITISH PETROLEUM PLC
Applicant

v

FALEFAEA TAPUMANAIA
1^st Respondent

AND

PENIATA TUI
2^nd Respondent

AND

ATTORNEY GENERAL
3^rd Respondent

Applicant represented by the General Manager, Vete Sakaio
First and second respondents in person
James Duckworth as amicus curiae

Judgment: 30 September 2003

JUDGMENT

This case has a long history. It relates to 0.6132 acres of land which the applicant company (BP) leases from the respondents and uses for an oil depot. The original depot was fenced by BP but it is not disputed that the fence only encloses a total area of 0.4583 acres. That has been the total area used by BP since. However, the company needs to expand the depot and this action arises from its attempts to ascertain the location of the remaining portion of the leased land.

BP leased the land for 99 years on 1 June 1970 by means of two leases one for 0.2011 acres at the southern end of the site and the other for 0.4121 acres making up the northern portion. Regulation 3(a) of the Native Lands Leases Regulations, 1957, of the Gilbert and Ellice Islands Colony required approval of the lease by the Lands Court. On 18 December 1970, it was finally approved by the Resident Commissioner. Annexed to the lease was a plan surveyed and drawn by CJC Leaney and it is clear that it shows the boundaries of the land involved in the original lease agreement.

Although BP has only been using 0.4583 acres of the total area, the company has been paying the full rental to the two landholders.

Eventually BP's operation required the use of the remaining land of the leased land. Unfortunately the actual boundaries were disputed by the families of the lessors and so the company went to the Land Court. That court confirmed that the boundaries needed to be extended in accordance with the lease but wrongly stated the area into which it should be expanded.

BP then went to the Lands Court Appeal Panel and requested that the boundaries on the original plan be surveyed, pegged and plotted and that this should take place with all interested parties present. Unfortunately, agreement was still not achieved and BP came to the High Court for a declaration.

As has been mentioned, there is no dispute by either respondent that the land being used by BP at present is only part of the land actually leased. The dispute is between the two landholders as to whose land it is that has not been used. Both the original parties to the lease have died and the present respondents are their successors.

In summary, the first respondent owns the land towards the northern end of the plot and the second respondent owns the land to the southern end. Both claim that the boundary should extend further into the land of the other and not into his own.

On 31 July 1999, Donne CJ made the following decision:

"I propose to defer consideration of any application between the parties including the Lands Court until a checked survey on the site in question as shown on the original lease is made.

I direct that such a survey be carried out by the Lands and Survey Department forthwith. Any attempt to interfere with this, will constitute a contempt of court.

The report of the Survey is to be given to the Court with copies to all parties."

The survey was carried out and submitted to the Court and to all parties on 12 November 1999. It was conducted using conventional methods and not relying on the cadastral survey. The result was clearly that the "missing" land all lies within the land of the first respondent.

As has been stated, the original lease was for a total area of 0.6132 acres. The two lease agreements involved show that the larger proportion, 0.413 acres, was leased from the first respondent and 0.2011 acres was from the second respondent. There are some slight variations between the Lands and Survey Department's survey and the original survey. Some discrepancy is to be expected but those revealed are all well within the expected margin of error. The survey confirmed that the land BP is currently using amounts to 0.403 acres of which 0.217 acres is from the land of the first respondent and 0.183 acres is from the land of the second respondent. It clearly finds that the missing land lies in the land of the first Respondent to the north of the fenced plot.

It is clear that the first respondent did not accept the findings of the survey. On 30 July 2001 he wrote to the Secretary to Government stating that all the landowners on Funafuti had come up with a "verified conclusion". That conclusion was that the short area of land should all come from the land of the second respondent. Needless to say, the second respondent does not agree and was not, presumably, one of the Funafuti landowners referred to.

On 25 July 2002 the first respondent prepared written submissions to the Court giving reasons for his rejection of the survey of the Chief Lands Officer. I do not set them out in detail. He first, incorrectly, states that the survey was based on the cadastral map of Funafuti. He continues by tracing the history of the various plots of land comprising the overall area. He agrees that BP should have the balance of their land but still insists that it lies to the south of the present site.

The case came before me on 9 August 2002 and, on 12 August, I ordered that BP should conduct a survey at its own cost using an independent surveyor and based on the same criteria as were used by Leaney on the original survey for the lease in 1970.

That survey has now been completed and the report submitted. The surveyor noted that Leaney had conducted his survey using magnetic bearings and a foot measuring tape and that the purpose of the present survey was to redefine Leaney's survey and peg the boundaries accordingly.

He sets out the method by which he ascertained the bearings and distances of the various boundaries and boundary points. The method had to use the only bearing left, namely to Fualopa from point A on the original plan, and then to check that position against the distances marked by Leaney on his plan. The final checking procedure confirmed that the point identified as point A was the same as that marked by Leaney and the bearing of the boundary EF (which runs along the road side of the plot) was also correct. The remaining boundaries could then be calculated and were found to correspond very closely to those found by the Lands and Survey Department's survey. I would add that the significance of point A is that it marks one end of the boundary between the first and second respondents' land. That boundary shows that the area to the southern side of point A, which is that leased from the second respondent, matches very closely the existing boundary and the area similarly matches that stated in the lease agreement.

Equally it shows that the land to the north of that boundary which falls within the present fence, which is leased from the first respondent, has a total area well below the area stated in the lease.

I have considered the evidence in this case and I am satisfied that the correspondence of both surveys is enough to prove that they correspond closely to the boundaries surveyed by Leaney and marked on the plan annexed to the original lease. I accept, as has been stated by the first respondent, that this may affect the presently accepted boundaries to other lands in the vicinity. That is not a matter this Court can deal with in this case. The ruling of this Court must be accepted in relation to this site and all consequential disputes, if any, will have to be determined by the Lands Court.

The result of both surveys show beyond any doubt that the balance of the land in the original lease for which BP has been paying rent but not using lies on the land to the northern boundary belonging to the first respondent.

It also shows that much of that land has been subsequently leased to Tuvalu Gas and that company has fenced a plot that clearly encroaches on the land leased to BP. It means that the first respondent has, no doubt unwittingly, been receiving rent from Tuvalu Gas for land much of which is also being paid for by BP. I can go no further on that matter.

I order:

1. that the boundaries established by the survey of Michael Whippy from Pro-Survis of Fiji be accepted as the boundaries first marked by Leaney in 1970 and shall be marked and taken as the true boundaries of the lease with the following qualifications:

(a) In view of the close correspondence of the boundary of the land leased from the second respondent with the present fence line, I direct that the present fence line be taken as the boundaries AF (F is unmarked on the Whippy plan but is the corner adjacent to the mark Fun23) and FE (AE and EF on the Leaney and Lands and Survey plans) of the land leased from the second respondent but that the boundary on the eastern side shall be that marked on the Whippy plan as ED (FD in the Leaney and Lands and Survey plans).

(b) The whole of the present fence on the western boundary of the site and marked FAB on the survey (EAB on the Leaney and Lands and Survey plans) shall be taken as the boundary of the leased land on the undertaking given by the Attorney General that the Government will not challenge BP's right to use the small area of its land which is enclosed. The boundary from the north western comer of the present fence to point B shall be as shown on the Whippy plan.

(c) The boundaries BC and CD on the Whippy plan shall be taken as those on the original lease.

2. that the Funafuti Lands Court shall file and note the plans in this case and shall treat the Whippy plan as conclusive of the position of the boundaries of the original leases.

3. that the first respondent shall allow British Petroleum to enter, enclose and use all such parts of the land lying within the pegs ABC and D and that he, his family, servants or agents shall not disturb or obstruct British Petroleum in its entry onto and quiet enjoyment of that land.

4. that the second respondent shall allow British Petroleum to enter, enclose and use all such parts of the land lying within the pegs ADE and 'F' which lie outside the fence of the eastern side of the site and that he, his family, servants or agents shall not disturb or obstruct British Petroleum in its entry onto and quiet enjoyment of that land.

Dated this 30th day of September, 2003.

THE COURT.