Tago v Ti'ingia - re Magaone Aga'eha Land [2008] SBCLAC 1; Civil Case No 10 of 2007 (14 March 2008)

IN THE CENTRAL ISLANDS CUSTOMARY
APPEAL COURT

CIVIL CASE NO: 10/2007

BETWEEN:

DAVID TAGO
APPELANT

AND:

JAMES TI'INGIA
EDDIE TEIKA & OTHERS
RESPONDENT

ABOUT: MAGAONE/AGA'EHA LAND

MEMBERS:

MOSES PULOKA	PRESIDENT
JAMES KAIPUA	MEMBER
ANTHONY PISUPISU	''
JOHN LOUNA	''
FLICKSON SAMANI	CLERK

JUDGMENT
Introduction

This is an appeal by the appellant against a Timber Right Determination heard on the 25th April 2007 at Lavagu, East Rennell by the Rennell and Bellona Provincial Executive.

Under section 9(c) of the Forestry Resources and Timber Utilization (Amended) Act 2000 provides for an "appropriate Government" to convene such meeting as Timber Right. In that the appropriate Government is the Rennell and Bellona Provincial Executive.

On the 25th of April 2007 the Rennell and Bellona Provincial Executive had identified persons lawfully able and entitled to grant timber rights. They are as follows:

1. Mr. John Ti'ingia	Tenukuapi tribe
2. Mr. Eddie Teika	''
3. Mr. Paul Neil Tuata	Tahua Tribe
4. Mr. Obed Saueha	Temuginuku Tribe
5. Mr. AnthonyTahua	''
6. Mr. Joseph Taupongi	Pa'agategaki Tribe
7. Mr. William Asia	''
8. Mr. Jeremy Kaipua	Hagekumi Tribe

There are more than two Respondents and an Appellant in this case who appealed against the determination of Rennell and Bellona Provincial Executive. The appellant is Mr. David Tago. The Respondents in this case are James Ti'ingia and Eddie Teika & others.

The Appellant in his opening remarks indicated why he did not intend to stand as an appellant against the respondent. He had submitted he was not in dispute with the Respondents, and had insisted for the Rennell and Bellona Provincial Executive to be present in court, as a respondent in this matter. He repeatedly mentioned this in Court.

Even in the midst of his insistence, court clearly advised the Appellant that he had followed a correct procedure by launching an appeal to the Customary Land Appeal Court (CLAC) against the determination made by the Provincial Executive. This is in line with section 10 (1) of the Forestry Resources and Timber Utilization Act (Cap 40).

This court has no jurisdiction to hear any matters arising between Appellant and the Provincial Executive. Because it would mean that the case is solely between the Appellant and the Provincial Executive. A ruling by this court allowed the appellant to continue presenting his submissions based on the appeal points against the determination.

Discussion

The Appellant in his submissions stated that there was no genealogy presented during the timber right hearing. He also submitted that those people whose names now appear on the trustee's list are not the same people whose names were on the original list. He further mentioned that Temuginuku and tenuku'api are the correct tribes. And that ownership of land in Rennell is not by tribe but by individual.

Court also heard that there were other people who objected the determination. To support that, the Appellant had tendered three letters to court. He termed the letters as affidavits. Court had received and marked the letters as Ap 1. Ap 2 and Ap 3. With regards to the letters, the Appellant in his reply to a question from the court on whether these men who wrote the letters would give evidence in support of their letters, his reply was, they were busy and committed in other business and were not able to come to give evidence.

The Appellant also raised some issues such as harassment made by a member of the provincial executive and also the approval of determination was done verbally. Not only that but he also raised he did not see any notice of approval while he was in Lavagu. And for ten days while he was there he did not see any notice.

The Respondent (John James Ti'ingia) in his reply stressed that the Appellant did not present during the timber right hearing to voice his concern or his disagreement. He further stated that the Appellant had declared in his opening remarks that he did not dispute the parties and trustee in this case. When the West Rennell House of Chief determine whose the rightful land owner the Appellant refused and indicated that he did not dispute the ownership of land and the trustee but disputed the Administering of the Provincial Executive.

From submissions provided by the Respondent, he had indicated that the Appellant did not attend the timber right hearing. The Appellant confirmed that he did not attend the timber right hearing because he was attending to some business in Honiara. The Respondant further stated that he did not have any submission to make in reply because all the points of appeal were directed to the Provincial Executive.

Apparently the Appellant had been very focusing in objecting to a logging operation in Rennell. His reasons were mainly confine to the effects a Logging operation may bring. He also mentioned that there is only one stream line of water underground on Rennell which the lake is also part of it. Claiming the water is drying up and it will be difficult to get firewood.

If a person was not present at a timber right hearing but appeal against it, does it make any sense? The court may allow that provided there were attempts made to postpone the determination and the parties failed to postpone. Or members representing the Appellant had been present to voice any objection during the hearing. In this case there was none.

From evidence collected, the Appellant knew there was a meeting/timber right hearing on the 25th April 2007 at Lavagu, East Rennell, he did not write a letter to inform the provincial executive and the Respondents in this case, to seek for a possibility of postponing the timber rights determination. Not only that but if he was serious he could have made an attempt to send someone to represent him during the meeting.

It can be evident that there is no one appeals against the determination besides the Appellant. The appellant is not a spokesman neither part of a group of appellant. He was the sole appellant in this case.

In questioning, court found the Appellant did not oppose the land owners but he opposed the way the Provincial Executive handle the timber rights. Not only that, but court had found that the Appellant had objected to any logging operations in the whole Rennell.

This court had found that the appellant had made some good appeal points in his submissions. The Respondent on the other also made good submissions. However the Appellant did not have any objection to oppose the Respondents in this matter indicated there was no disagreement with the respondents as the persons lawfully able and entitled to grant timber rights.

Decision

This Court therefore found the determination made on the 25th of April 2007 by the Rennell and Bellona Executive is up held. The persons proposing to grant the timber rights, and represent all the persons are lawfully entitled to grant such rights.

The Court now makes the following Orders:

1. That the appeal made to this Court by Appellant be dismissed.
2. That the determination made by the Rennell and Bellona is up held.
3. Parties to bear their own cost

Right of appeal within 3 months from the date the decision is received.

Moses Puloka	President
Flickson Samanit	Clerk

Dated: 14th March 2008