Kera v Vaguni, In re Sioqo Customary Land Timber Right Appeal [2013] SBCLAC 5; CLAC No 28 of 2013 (15 October 2013)

IN THE WESTERN CUSTOMARY LAND
APPEAL COURT

CLAC No: 28 of 2013

Timber Right Appellant Jurisdiction

IN THE MATTER OF: THE FOREST RESOURCES AND
TIMBER UTILISATION ACT [CAP 40]

AND THE FOREST RESOURCES AND THE TIMBER
UTILISATION [APPEALS] REGULATION LN 22/1905

IN THE MATTER OF : SIOQO CUSTOMARY LAND
TIMBER RIGHT APPEAL

BETWEEN:

CHIEF PIO KERA CHIEF TONY KEROBOE
CHIEF NICHOLOAS VILAKA
Appellants

AND:

CHIEF LESLIE VAGUNI
IAN PITAKIA
HENRY ITAKU & OTHERS
Respondents

JUDGMENT
Introduction

1. This is a timber right filed against the decision of the Choiseul Provincial Executive (CPE) over Sioqo customary land timber rights hearing held on the 1st and 2nd of May 2013 at Taro sub – station.
2. On preliminary hearing, the Appellants party was represented by Lino SELALU as spokesperson, and Moses BILIKI who represent the respondent's party as their spokesperson.
3. All parties to this CLAC sitting were served by way of notice to attend the hearing at Gizo magistrates court on the 3rd of October 2013 without failed. In responding upon the notice, both parties appear.

Brief history of this case

4. On the 1st and 2nd of May 2013, a public hearing was convened at Taro sub-station where the Choiseul Provincial Executive (CPE) has undertaking to determine over an application made by Delta Timber Company to negotiate Timber Rights over a portion of land referred to as Singe customary land under section 7 of the Forest Resources and Timber Utilisation Act (FRTUA).
5. The CPE has determined and granted timber rights to the so called Sioqo tribe represented by Chief Leslie VAGUNI, Ian PITAKIA, Henry ITAKU and other members as the right people to grant timber right over Sioqo customary land.
6. From that determination, the objectors during the Timber Rights, filed an appeal to the CLAC (Western) in accordance to section 10(1) of the FRTUA, where "Any person who is aggrieved by the determination of the council mode under section 8(3)(b) or (c) may, within one month from the date public notice was given in the manner set out in section 9(2)(b), appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal.
7. There were 12 grounds of appeal submitted by the appellants, however, the court has minimised it after both parties gave representation. The court determined over six grounds of appeal, as the content of other grounds are the repetition of others,

Grounds of Appeal

Ground 1.

The Choiseul Provincial Executives (CPE) is erred in law and facts to grant timber rights over a portion of land where no proper consultation and agreement made amongst parties.

8. Spoke person for the Vogomo tribe (Apellants) Mr. Lino SELALU had submitted that the CPE has erred to determine that the names appears in form II are the right persons to grant timber rights over Vogomo customary land. He strongly submitted that the rightful people to grant timber right over this portion of land which the Sioqo tribe claimed to be the Slow customary land are the members Voqomo tribe.
9. Mr. SELALU reiterated in support of his claim and said, the CPE is erred to grant timber right on a portion of land where no proper consultation among the landowning members. Further to that he confirm that the Vogomo tribe have raised this contention during the timber rights at Taro substation, thus, the CPE denies our objection, determined over in favour of the respondents.
10. In response to the appellant's submission, Mr BILIKI for the Sioqo tribe contested that his tribe denies the existence of Voqomo tribe. Because of none-existence of the Vogomo tribe the respondents are not obliged to consult them.
11. Further to the claim made on behalf of the Sioqo tribe, they claimed that the portion of land in question has been through courts of law or legal institutions where all court decisions were in favour of Sioqo tribe.
12. Mr. BILIKI for the Siogo tribe further submits that the CPE is not error in law or in facts in making legal determination over the land in question. They have thoroughly examined the information available before them, then determining the right people to grant timber right over Sioqo.

Ground 2

The CPE is wrong to determine on a portion of land which both parties claimed the ownership. This is in breached of section 9 of the FRTUA, where the CPE should advice the commissioner of forest to withdraw the time right and have both claim shorted out.

13. Mr. SELALU contended that during the timber right hearing held at Taro sub-station on the 1st and 2nd of May 2013, both parties submits and claim the ownership of the portion of land which the Sioqo tribe purported to as Slow customary land, while the our tribe claims that portion of land is part of Vogomo customary land owns by the Vogomo tribe. The land was actually called Vogomo and not Sioqo, and was owned in custom by the Vogomo tribe and used by Pakikana clan of Vogomo tribe. This attributes was known by the custom leaders of our customary land. Further to that, the Appellants submits that since that they are the legitimate owner of that portion of land, Vogomo tribe are not willing to negotiate the disposal of timber rights to Delta Timber Limited.
14. In response to the appellant's contention, Mr Ronald TANAKESA submitted and says; there is no error made by the CPE as the land in question was owned by the Sioqo tribe and not Vogomo tribe. The majority of Sioqo represent the true and legitimate land owners of Siogo tribe.
15. During cross examination, both parties confirmed that the land in question was claimed by both parties on two different versions of names. For instance, the Respondent claimed the land in question is Slow customary land, while the appellants claimed that the land in question is Vogomo customary

Ground 3

The Respondents acted fraudulently in procuring the timber right hearing that resulted in the determination in their favour on 12th June 201 despite knowing very well the previous determination on the 4th October 2006.

16. This ground of appeal raised the question of law which the CLAC has no jurisdiction to determine over it.

Ground 4

The CPE determination of 12th June 2013 included portion of land which was not included as part of the Sioqo customary land displayed in the form 1 application therefore in breached of the FRTUA.

17. The Appellant argued that the CPE is erred to determine over the application which covers their portion of land which was not covered by their form 1 application. They further claimed that they raised that objection during the timber right, however, the CPE denies their claim and proceed to determine over the application.
18. Mr. Moses BILIKI submitted on behalf of the respondents and said that the map displayed during the timber right hearing excluded the portion of land that was .previously included in the form 1 application. It never included any new portion of land.

Ground 5

The Choiseul Provincial Executive erred to rely on the 1930 local court decision and determined in favour of the respondents.

19. The appellant contended that the CPE is wrong to accept the 1930 local court decision between Sioqo and Amato of Pakikana clan of Voqomo tribe. The main basis of this local court case is basically about the chieftaincy. It is submitted that Vogomo tribe is not a party to this case, therefore, the CPE should not consider as raw evidence to determine over the land that the vogomo tribe has disputed.
20. In respond to this ground of appeal, Mr BILIKI contested that the local court sitting was for the ownership of the land and not chieftaincy issue. He stated that this is another false claimed by the Appellants, and ask the court not to consider it. This issue was raise at the TRH which was witness by other objectors.
21. Both parties were given opportunity to proceed on cross examination process, which the CLAC panel asking questions to the representatives of the parties,
22. The court has the opportunity assess the whole process of the representation from both parties, and opportunity to assess the minutes of the Timber right held on the 1st and 2nd day of May 2013. After considering the evidences from both parties, the court concluded on the following findings.
    • - These are the questions that the court normally ask on timber right cases, that whether or not the provincial government is erred to grant timber right to the respondent, or
    • - - Whether or not the people who grant timber right are the right person?
    • - Whether or not the Provincial Executive is error to accept any claim of right which are not in accordance to the provisions under section 9 of FRTUA.
23. After considering the whole weight of evidence and reasoning submitted by both parties, the court is satisfied that the Choiseul Provincial is erred in law to determine and grants timber right over a land or resources that claim of right is in question.
24. The evidence reveals from both parties, are as follows:
    • - The Appellant submits that they have claim of right on some portions on the land which was claimed to be Sioqo customary land.
    • - Both tribes are the existing tribes on that part of Choiseul, and they are blood related.
    • - The respondent denies that there is no such tribe as Vogomo exist on the history of their land.
    • - Respondent relying on the 1930 local court judgment produced during timber right.
    • - Both submissions were confirmed in the Timber right minutes.
25. In cross examination process, both parties confirmed that they were related or blood related. Both parties agree in principal that there is possibility to settle this dispute on other customary means of settlement.
26. The court could not able to consider the determination of the House of Chief since it was made after the CPE determination.

Conclusion

27. Base on the above findings, this court is of the view that the appeal is granted on the bases that the land in question has claimed equally by both parties. This court is not considering who lawfully owns the land: however, the court is considering the right people to grant timber rights over this purported Sioqo customary land. When accessing the whole evidence of this appeal, the court has concluded that the CPE is erred to grant timber right over a portion of land which was lawfully claimed by parties. The element of denial of tribes and clans is very sufficient when considering who the right people to grant timber right. In this case, the court is satisfied that both the appellants and the respondents are blood related.
28. The court grant the appeal and ordered as follows:
    1. The appeal is granted,
    2. The WPE determination on 12 of June 2013 is set-aside
    3. Afresh; that both parties to proceed further on customary means of settlement, either to proceed with logging development or to pursue the ownership of the land in question.
    4. We decline to make any order as to cost.

Right of appeal is extended

Decision was verbally pronounce on the 4th day of October 2013, written judgment delivered and make available on dated 15th day of October 2013.

Signed:

1. Jeremiah KAMA	President [ag]
2. Willington LIOSO	Member
3. Allan HALL	Member
4. Tane TA'AKE	Member
5. Jim SEUIKA	Secretary/member