Seijama v Luna [1981] SBHC 4; [1980-1981] SILR 25 (20 February 1981)

[1980] SILR 25

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 70 of 1980

SEIJAMA

v

LUNA

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 70 of 1980

20^th February 1981

North New Georgia Timber Corporation Act 1979 - distribution of profits - entitlement - "Tribal Leaders" - persons "having the right to live in the area" - claims to entitlement.

Facts:

The Plaintiff had succeeded in establishing custom rights to Heta Heta land. This land was within an area known as Dekurana and designated for as an area for distribution of profits under the North New Georgia Timber Corporation Act 1979 (‘the Act’). The defendant was appointed as sole tribal leader for Dekurana and was reluctant to accept the Plaintiff's claims to more than an individual distribution of profits. The Plaintiff sought a declaration that he was entitled to half the profits to be distributed in relation to the Heta Heta land and other ancillary relief. The Plaintiff claimed to sue as tribal leader of the Heta Heta people.

Held:

1. As the Act refers to profits being distributed to those having a right to live in an area of which Dekurana was one, the Plaintiff and his line were entitled to share in the distribution of profits if they did not opt to take a distribution from another area.

2. As Heta Heta was not an "area" for the purposes of the Act the tribal leaders of that land were not entitled to a direct distribution from the corporation. A tribal leader of Heta Heta could become a "Tribal Leader" for Dekurana area under Part I of the Third Schedule if the Board of Directors was so informed.

3. While the court accepted that there was a Heta Heta tribe and the Plaintiff was entitled to represent it, claims to participation in the Dekurana distribution had been dealt with on an individual basis and those who wished to establish a right to live in Dekurana and thus receive a share must do so on an individual basis.

4. The court had no power to order that the Plaintiff should be in any committee formed to advise the Defendant on the distribution as this was not a body created by statute but a custom body.

For the Plaintiff: A. Radclyffe
For the Defendant: F. Waleilia

Daly C.J. By action commenced by Writ of Summons the Plaintiff BOAZ SEIJAMA sues as a representative claiming for a determination of his rights under section 8(1)(c)(ii) of the Constitution, payment of certain monies to him and an injunction to restrain future breaches of trust. The Defendant NAISI LUNA joins issue with the Plaintiff on a number of the factual assertions which the Plaintiff makes in his statement of claim and denies that the Plaintiff is entitled to monies from him or an injunction.

The action is concerned with the practical results flowing from the enactment of the North New Georgia Timber Corporation Act 1979 (No.9 of 1979). It will be necessary in the course of this judgment to consider in detail some of the provisions of that Act. However before doing so I must consider earlier litigation between the parties.

This litigation concerned HETA HETA land in North New Georgia. On Jan 17th 1978 the Marovo Local Court heard a case between the present plaintiff and defendant in which the ownership of HETA HETA land was disputed. The Plaintiff claimed that HETA HETA was a separate land which he and his line owned by direct descent. The Defendant claimed that HETA HETA was merely an area in DEKURANA land which therefore fell within the land which he and the DEKURANA people owned. The Defendant claimed as Chief of DEKURANA, a post which had been held previously by both his father and grandfather.

The Local Court decided that the Plaintiff was "entitled to this Heta Heta land" and to "the true ownership of this land of Heta Heta". During his evidence the Plaintiff had described what he called the "families true of Heta Heta".

The Defendant appealed to the Western Customary Land Appeal Court ("the CLAC"). On 23rd of November 1978 the court gave judgment. The relevant parts of that judgment are worth quoting:

The Customary Land Appeal Court has studied the Local Court record, the appeal petition, and all the evidence put before this hearing, and has come to the following conclusions. Firstly, the court accepts that Komehe was indeed Chief of Dekurana land, from Niva to Barora rivers, and was succeeded by his son Luna and then Naisi. Secondly, this court accepts that a place known Heta Heta exists, and that Pome had properties there, and that Boaz Seijama is his descendant although there is no evidence of any direct chiefly succession. However, the court finds that the actual boundaries of Heta Heta, as claimed by Mr Seijama, are not proven, and that the Local Court decision was based on evidence of many tabu places and graves when in fact only 2 or 3 were visited and seen.

The Court further finds that the genealogies of Dekurana, Temarae and Rodubakoto are all interconnected, and that Naisi and Boaz are related. Furthermore, Rodubakoto and Temarae are both within the alleged boundaries of Heta Heta and cannot be separated from it. This Court fails to see how the Local Court can award exclusive rights over this land to Mr Seijama on the available evidence when it is clear that both Naisi and Boaz have some rights to this area between Malumalu and Niva rivers, referred to as Heta Heta".

It should be noted that the CLAC expressed some uncertainty about the actual boundaries of the land as claimed by the Plaintiff.

However, when one turns to the decree that, if read by itself, appears to express the boundaries with certainty when it says:-

"The court therefore decrees that Mr Naisi Luna and Mr Boaz Seijama, representing their respective lines, have equal rights to the land between Malumalu and Niva rivers, and the trees thereon."

However in view of the finding in the judgment that the boundaries as claimed by the Plaintiff were "not proven" and the reference earlier in the decree "to the land between Malumalu and Niva Rivers referred to as Heta Heta" it would seem at least arguable that the CLAC were not in fact saying that all the area between the two rivers was Heta Heta Land but that there was a land in that area known as Heta Heta of uncertain boundaries. Indeed the Plaintiff himself in his evidence (see page 19 of the record) only claimed that the land went as far as the LAE River and not to the NIVA.

There was a further appeal to the High Court. The High Court found no merit in the appeal and dismissed it. The High Court decreed:-

"That the above-named Appellant, Naisi Luna, and the above named Respondent, Boaz Seijama, and the members of their respective lines, have equal beneficial interest in that area of land lying between the Malumalu and Niva Rivers in North New Georgia and to economic trees on the said area of land."

It will also be observed, although the then Chief Justice heard no evidence on the point, that this decree appears to accept that the land in question extends from the Malumalu River to the Niva River without qualifying it as being that part of that area known as Heta Heta land. However what is undoubtedly clear is that all three courts were giving to the Plaintiff and his line rights in relation to the area between Malumalu River and Niva River. In the context of these judgements and decrees it must be accepted, that, whatever the meaning of ‘beneficial interests’ and ‘rights to the land’, these decisions give the Plaintiff and his line the right to live in that area.

Whilst this litigation was pursuing its course through the courts the North New Georgia Timber Corporation Act 1979 (‘the Act’) was proceeding through the National Parliament. It came into force on 3rd September 1979. The Act established by section 3 a corporation known as the North New Georgia Timber Corporation (‘the Corporation’). By section 4 "all the timber standing on the New Georgia lands" together with the right to grant certain licences was vested in the Corporation for the period of 30 years. Section 5 makes provision for compensation for the acquisition of such rights as follows:-

"5. In accordance with the provisions of section 8(1)(c) of the Constitution, the compensation payable for the acquisition of the ownership of all the rights over the timber standing on the New Georgia lands shall be the right of all persons having the right to live within the area of the New Georgia lands to receive a proportion of the annual profits of the Corporation and to participate in the affairs of the Corporation as a member thereof in accordance with the provisions of this Act and of the custom prevailing in the area;

Provided that any person claiming to have an interest in the timber and in the felling and extraction of the same may apply to the High Court for determination of his rights under Section 8(1)(c)(ii) of the Constitution".

In section 6 (which sets out the functions of the Corporation) the following provision is found (section 6(1)(e)):-

"(e) after meeting the running expenses of the Corporation and after setting aside such moneys as members may determine in accordance with paragraph (d) and such moneys as the Board may determine are required for the Reserve Fund created in accordance with paragraph (d A) to distribute the balance of the revenue of the Corporation in the manner prescribed in Part I of the Third Schedule."

Part I of the Third Schedule is headed "Distribution of Profits" Paragraph 1 reads:

"(1) Each tribe whose customary land is within the area of the New Georgia lands shall inform the Board of Directors of the names of the leaders of that tribe who have been authorised to receive that tribe’s share of the net profits of the Corporation for distribution amongst those members of that tribe having the right to live in the area in accordance with custom.

(2) Such leaders shall in this Part of this Schedule be referred to as "the Tribal Leaders"".

It will be noted that there is no restriction on the number of tribes and that the words "Tribal Leaders" are given a meaning for Part I of the Third Schedule only. However in the Fourth Schedule there is a reference to "each of the five tribes within the area of New Georgia lands". This figure "five" may be an implied reference to the five "customary land areas" into which the New Georgia lands are divided by the First Schedule but there is no express cross-reference. The areas referred to in the First Schedule are DEKURANA, GERASI, KOROGA, LUPA and RODONA. The Dekurana area shown on the plan drawn for the purposes of the Act includes all the land between the Malumalu and the Niva rivers, and therefore must include the land in dispute in the earlier litigation.

It may perhaps be argued that the Second Schedule, which deals with appointment of directors of the Corporation, also carries the implication that there are only five tribes within the New Georgia Lands. But on a closer examination that argument is not sustainable; that Schedule refers to "ten persons two of them shall have been nominated by the tribal leaders of each of the five areas comprised in the New Georgia lands...." (Para 1(a)) and "ten persons nominated by the tribal leaders of that area ...." (Para 3). It will be noted that the plural "leaders" is used in each case and that reference is made to the "area" which can be taken without any difficulty to cross refer to the areas set out in the First Schedule. So this Schedule would equally be open to the interpretation that a number of tribal leaders representing a number of tribes in each area should nominate two directors.

The difficulty is that by restricting the definition of "Tribal Leaders" to take effect only in relation to Part I of the Third Schedule and giving the words in that Schedule initial capital letters there must be an implication that the words "tribe leaders" when used elsewhere without capital letters have a different meaning. What that meaning could be is not a matter which I have to decide as this case is concerned with the distribution of profits rather than the appointment of directors and general meetings. Therefore I confine myself to the words used in Part I of the Third Schedule.

Even in that Part the matter is not wholly free from difficulty. Paragraph 3 is clear at the outset men it provides that "revenue available for distribution shall be distributed to the Tribal Leaders on behalf of the members of each tribe on whose land work is currently in progress" (my emphasis). This is consistent with the concept of their being an unrestricted number of tribes. But the paragraph goes on to provide that where more than one area is being worked the distribution is to "pro rata to the value of the timber logged in the areas ...." (Again my emphasis) which would seem to imply that distribution is not by tribe but by area. Paragraph 4 refers to distribution "to the persons entitled to live in the area in respect of which ... Tribal Leaders have been appointed" and paragraph 5 has a clear reference to the division of the lands into five areas. It provides as follows:-

"5. Where a member or group of members claim to be entitled to live in more than one of the areas named in the First Schedule then such member or group of members shall elect to receive a distribution in respect of one area only".

Thus, while there is no express restriction on the number of tribes who can nominate Tribal Leaders in accordance with paragraph 1, that paragraph and paragraphs 3, 4 and parties particularly paragraph 5 carry the strong implication that distribution by the Tribal Leaders is to take place on the basis of areas to which reference is made in the First Schedule rather than tribes. Therefore the distribution by the Corporation would be to the Tribal Leaders (if more than one) of an area as a group who would then, as a group, distribute in accordance with Part 1. However it does not follow from this that Parliament has decided that there is only one tribe (pace paragraph 2 of the 4th Schedule) who can nominate the Tribal Leaders for any area for the purposes of Part 1 of the Third Schedule. It would, my judgment, need clear words restricting the words "Each tribe whose customary land is within the area of the New Georgia Lands" used in paragraph 1 of that Part to reach that conclusion. In the absence of such words of restriction, I give the words used their natural meaning and hold that if there is more than one tribe in one of the five areas named then each of those tribes has power to inform the Board of Directors of the names of their leader or leaders.

One other matter of importance has become apparent from the quotations which I have made from section 5 and Part 1 of the Third Schedule. That is that the Act is consistent throughout in its references to distribution of profits to those having a right to live, or an entitlement to live, in an area. If the words in Para. 1 (1) of Part I of the Third Schedule "in accordance with custom" are intended to qualify the words "having the right to live in the area" there would be an inconsistency the terms of section 5 so perhaps the better course would be to regard those words, despite the word order, as qualifying the words "for distribution". This would mean that the distribution should be in accordance with custom. Such an interpretation would be consistent with that part of section 5 which prescribes that participation in the affairs of the Corporation is to be "in accordance with the provisions of.... (the Act) and of the custom prevailing in the area."

Having taken a preliminary look at the terms of the Act I now return to the facts of this case. In 1979 on an unspecified date a meeting was held in Gizo to decide who were the tribal chiefs in North New Georgia. As I understand it Mrs Frank JAMAKANA announced the consensus of the meeting when he said that the Defendant was tribal chief of the DEKURANA area. Indeed it is not disputed by anyone that the Defendant, whose father and grandfather had both been chiefs of DEKURANA, was indeed the overall chief of the area duly chosen in accordance with custom. Thus the Defendant became the sole Tribal Leader for the DEKURANA area.

When the Corporation become effective distributions were made of profits to the Tribal Leaders. In respect of the DEKURANA $12040 was handed to the Defendant in June 1980 and $6000 was handed to him in December 1980. In order to decide how the money would be distributed the Defendant formed a committee of ten men. All these men, he said in evidence, were men living in DEKURANA. Some men were chosen by the Defendant and some, to use the words of Mr. TIVARU a witness for the Defendant, "were chosen by the tribes".

The Plaintiff lives at present in Honiara. His home village is in BUKOBUKO which is outside the DEKURANA area as designated by the Act. The village is, in fact, in the GERASI area.

The committee in DEKURANA decided to give each family with children $130; married people with no children or a family with a parent dead were given $100; unmarried people received $80; boys and girls $50 each. The Plaintiff did not receive any money directly from that distribution.

In December the distribution took a different form. Each adult was given $27; $5 was given to school children and $2 to children not attending school. Again no direct payment was made to the Plaintiff from that distribution.

In relation to each distribution other members of the Plaintiff’s family also received no direct payment. All these relatives live outside the DEKURANA area.

I use the word "direct" in this context as it is apparent that at some stage the Defendant and his committee decided to allot some money to the Plaintiff. The Plaintiff’s evidence, which was supported as to date by a letter which he wrote, is that after he had commenced legal action he received information that Mr Frank Jamakana, the acting Chairman of the Corporation, was holding $500 for him. On 3rd November, 1980 the Plaintiff declined this sum. Subsequently the committee allotted the Plaintiff $100 in the December distribution. In evidence the Defendant and his witnesses claimed that these sums were for the Plaintiff himself and for him to distribute to his family. The $100 too was not accepted by the Plaintiff. These refusals to accept money were on the basis that there was no explanation of how these figures were reached; that they bore no resemblance to the other distributions; and that as a proportion of the total amounts distributed, these sums were not adequate to meet the claims of Plaintiff and his line by virtue of their rights in Heta Heta land.

Thus the respective positions of the parties became fixed. The Plaintiff maintains that as Heta Heta land falls within the DEKURANA area of the New Georgia lands as defined in the First Schedule to the Act he is entitled to a proper share in the distribution made in relation to DEKURANA in accordance with Part I of the Third Schedule. Although the Plaintiff does also have a right to live in GERASI he has elected in accordance with Paragraph 5 of that Part to receive a distribution in relation to DEKURANA land. So fax there is really no dispute although it is with great reluctance that the Defendant and his committee came to recognise the inevitable as they did when they decided to allocate a total of $600 to the Plaintiff. I should stress that I am at present speaking of the rights of the Plaintiff personally although in the evidence there is some indication that the Defendant and the committee accept also the rights of the immediate family of the Plaintiff.

But the Plaintiff seeks to go further in his claim and it is in relation to these further claims that both parties take a firm stand. It will be recalled that the Plaintiff sues as a representative. His case is that first, there is a tribe the members of which have a right to live in DEKURANA. This tribe known as the Heta Heta tribe. Second, that he, the Plaintiff, is the tribal leader of that tribe. These facts if accepted have, says the Plaintiff, a number of results. One is that the Plaintiff becomes entitled to sue as representative on behalf of the tribe and this court may give judgment on both the Plaintiff’s personal claim and the claim of the members of the tribe that each such member is entitled to share in the DEKURANA distribution. Another is that the Plaintiff is entitled to be regarded as a "Tribal Leader" for DEKURANA for the purposes of Part I of the Third Schedule and to have an actual distribution made to him. Further even if he is not entitled to be regarded as "Tribal Leader" the plaintiff asks that he be given the right to be a member of the committee which advises upon the distribution in the DEKURANA area. All these claims present difficulties. Each is opposed by the Defendant and, indeed, by the members of the committee who were called to give evidence.

The basis of this opposition is the nub of this case. What it amounts to is that the Defendant is reluctant to accept the decision of the courts in relation to Heta Heta land. The Plaintiff says that on a number of occasions he has approached the Defendant and his committee to reach a solution but he has always been met with stonewalling tactics; usually a reference to the committee is made of any request followed by the inevitable answer ‘no’. That this is indeed the case is supported by not only the way in which finally the $600 was tendered to the Plaintiff is without explanation but also the evidence which was given in this court. The witnesses for the Defendant endeavoured throughout to hide behind the committee’s decisions and attempted to decline to give their views on Heta Heta land. If pressed they attempted to restrict the decisions of the courts and indeed, in some cases, to refuse to accept them. The Defendant and his witnesses also appeared to be saying that only those who actually lived in DEKURANA were entitled to participate in the distribution and to receive part of the profits of the Corporation allocated to the DEKURANA area.

I must start my consideration of the issues by stating two matters plainly. The first is that once courts of competent jurisdiction have given judgment then that judgment must be accepted and applied. In this case the Local Court and Customary Land Appeal Court both with experience of custom decided that the Plaintiff and his line had an interest in Heta Heta land. The Defendant, however much he disagrees, must accept those judgments. So must the committee. The second is that the Act provided that it is those who have a right to live in an area who are entitled to share in a distribution of profits. There is no restriction to persons actually living in the area. This is recognised in, for example, GERASI area where those who live outside the area but who have a right to live in GERASI, subject to the right of election if appropriate, receive a share in the distribution for that area.

To return to the Plaintiff’s larger claims. I consider each in turn.

(a) That the Plaintiff is entitled to sue as a Representative.

The law provides for such representation as is here claimed in Order 17 rule 8 of the High Court (Civil Procedure) Rules 1964 as follows:-

"Any person entitled in accordance with custom to represent any community, line or group of natives, may sue and be sued on behalf of or as representing such community, line or group."

It is, in my judgment, clear that the Plaintiff is entitled in custom to represent his line. He did so in the Local Court and Customary Land Appeal Court without objection and, as we have seen he was named as the representative of his line in the judgments. The Plaintiff claims to represent some six hundred people. It may or may not be that these six hundred could all be described as within his line; on the evidence this remains unclear. The Plaintiff described them as "Heta Heta people" or "Heta Heta tribe". This brings me to the second claim.

(b) That there is HETA HETA tribe.

This is a matter in relation to which one must bear in mind the background of the land litigation. Expressly that litigation found that there was a land known as Heta Heta; a line which had rights to that land; and that the Plaintiff was entitled to represent that line. On reading the evidence in both the Local Court and CLAC one finds a number of references to ‘tribes’. Indeed the Defendant himself said "to tribes lived there" (in Heta Heta land) in the Local Court although in the CLAC he claimed that he had not said some of the things which were written down. In this court the evidence for the Plaintiff was that there was a Heta Heta tribe. The evidence for the Defendant was a denial that such a tribe existed. However Renta TIVARU, a witness for the Defendant, although at first denying that there was Heta Heta tribe, in his cross examination came, not only to accept that such a tribe existed, but also that he was a member of it. I must say that I was not impressed by the way the witnesses for the defendant gave evidence. Some are the same who gave evidence in the earlier litigation and were repeating what had not been accepted before. I am satisfied looking at all the evidence and the records of the earlier courts that there is a Heta Heta tribe. How one decides who is in that tribe I shall consider later in this judgment.

(c) That the Plaintiff is Tribal Leader of the HETA HETA tribe

The plaintiff accepts that the overall chief of the DEKURANA area (including Heta Heta) is the Defendant. The Plaintiff however claims to be a tribal leader. He makes no claim to being a chief. On the facts I would find this a difficult matter to decide. Again it is in dispute between the parties. But in the circumstances of this case I do not consider it is a matter which I must decide. There is no claim on the pleadings for a declaration that the Plaintiff a Tribal Leader for the purposes of Part I of the Third Schedule and even if there were I have not heard evidence which could lead me to grant such a declaration. Paragraph 1(1) requires each tribe to "inform the Board of Directors of the names of the leaders of that tribe who have been authorised to receive the tribe’s share of the net profits....". There is no formality prescribed for that "informing" but until it takes place there is no "Tribal Leader" for the purposes of Para.1(1) of Part I of the Third Schedule. Whether or not the Plaintiff is leader of the Heta Heta tribe, no steps have been taken to inform the Board that he is. Should the Heta Heta tribe wish to do so they would be no doubt well advised to have a formal and traditional customary meeting at which the Plaintiff is recognised as leader and agreement reached to so inform the Board. I therefore decline to reach any conclusion as to whether the Plaintiff is a tribal leader of the Heta Heta tribe. That is for a customary meeting of the members of that tribe. Thereafter if the tribe inform the Board of Directors of the Corporation that the Plaintiff is a tribal leader he may become a Tribal Leader for the purposes of Part I of the Third Schedule.

(d) That the Plaintiff has a right to be a member of the DEKURANA distribution committee

Again this is a claim that does not appear in the pleadings in this form. Indeed it is difficult to see how it could do so as the committee is not created under any statutory provision. On the interpretation of paragraph 1(1) of Part I of the First Schedule which I have reached, it is necessary for the distribution to be "in accordance with custom". I assume, although I have heard no evidence on the point, that the formation of a body of advisers to assist the Tribal Leader, that is the Defendant, is in accordance with custom. I note that some of the members of the committee are selected "by the tribes". Thus it would seem to me that it would be to the advantage of everyone if the Plaintiff, who on any view represents a line with substantial interests in DEKURANA area, was invited to participate and did participate in the committee. It is time the Defendant and his colleagues accepted that constant refusal to recognise the Plaintiff and his position can only create a situation of conflict which is not in the interests of anyone. I do not consider that I can make an order that the Plaintiff be admitted to this non-statutory body; I must however indicate that it is my view that such admission should take place.

I said earlier in this judgment and in argument that there seems to me to be a practical difficulty in deciding exactly who is entitled to reside in Heta Heta land. The earlier judgments refer to the Plaintiff and his line. I am not prepared without more to accept that I must include in that description the "roughly six hundred" people of whom the Plaintiff spoke in his evidence. Those who are in the direct line of the Plaintiff have a right to live in Heta Heta land and hence in DEKURANA area; they are therefore entitled to share in the DEKURANA distribution if they have not elected under paragraph 5 of Part I of the Third Schedule to receive a distribution else here. From the evidence it is clear that some members of the line have elected to receive a distribution from GERASI area. Thus at present the matter is being dealt with on an individual basis. That being so it is for the individual to make application to the DEKURANA Tribal Leader (the Defendant) to receive a distribution in respect of DEKURANA. If that individual is in the line of the Plaintiff it follows from the earlier litigation that he has a right to live in DEKURANA and is therefore entitled in law to participate in that distribution. The individual must, of course, also elect to take part only in that distribution. If the individual is not in the line of the Plaintiff but claims that he is a member of the Heta Heta tribe then he too must make application in the same way. If the Tribal Leader and his committee decide that the applicant does not have a right to live in DEKURANA then the applicant may apply to the Local Court for a determination of his right to do so in the first instance. It would, of course, be open to the applicant to apply direct to this court pursuant to the proviso to section 5 of the Act but as this would be a custom matter involving the tracing of ancestry I should be inclined to refer the matter to the Local Court sitting as assessors in any event. I should add that, in my judgment, it is for the individual or for a person acting on behalf of named individuals to make his or their claims known to those responsible for the distribution at the earliest opportunity. It would be impossible for anyone to deal properly with the distribution of fixed sums of money if claims are advanced on behalf of a large body of unspecified persons who may or may not have elected to share in distributions elsewhere or if claims are made after the distribution has taken place.

One other matter arises from the pleadings about which I should say something. In paragraph 4 of the Amended Statement of Claim there is an allegation of breach of trust; in paragraph 6 (iii) there is a prayer for an injunction to restrain breach of trust. I have heard no argument on whether the equitable principles applying to trusts and trustees are applicable in the circumstances of this case or indeed whether the word ‘trust’ in its technical sense is at all applicable. I therefore prefer to regard the obligation imposed upon Tribal Leaders by the Act to be to distribute the money received in accordance with the express provision of Part I of the Third Schedule. It may be that on another occasion I shall have to consider the point concerning trusts. I should however make it clear that a distribution not in accordance with the Act may make the distributor personally liable to repay the money wrongfully distributed.

I return now to the prayers in the Amended Statement of Claim:

(i) Determination of rights of the Plaintiff in accordance with section 8(1)(c)(iii) of the Constitution.

(a) I have determined that the Plaintiff as a person with a right to live in DEKURANA area has a right, in the absence of an election by him to receive a distribution in respect of another area, to receive a distribution in respect of DEKURANA area.

(b) Insofar as the Plaintiff sues as representative of line, I make the same determination in respect of persons shown to belong to that line.

(c) Insofar as the Plaintiff claims to sue as representative of the tribe of Heta Heta, I find:-

(1) that the tribe of Heta Heta exists;

(2) that whether or not the Plaintiff is a leader of that tribe he is not, at present, entitled to be regarded as a Tribal Leader for the purposes of Part I of the Third Schedule to the Act.

(3) that members of the Heta Heta tribe insofar as they are not members of the line of the Plaintiff must make their individual claim of a right to live in DEKURANA area either to the Tribal Leader of DEKURANA (the Defendant) and his committee or to the courts and, if successful, elect to take a distribution only in respect of DEKURANA area. They would then be entitled to receive a distribution in relation to DEKURANA area.

(d) I make no finding on the Plaintiff claim to be a member of the committee for advising the Defendant on distribution in DEKURANA area but would strongly urge that this be accepted.

(ii) Payment of one half of the Royalty monies payable in respect of Heta Heta

The use of the word "royalty" here is misconceived. The distribution is in relation to profits of the Corporation. Equally the claim for one half of the monies payable in respect of Heta Heta land is inappropriate. As the Plaintiff is not a Tribal Leader he is not entitled to receive any distribution direct from the Corporation. Even were the Plaintiff a Tribal Leader he would in conjunction with the other Tribal Leaders receive all the profits distributed for the DEKURANA area and would then have to distribute them to those having a right to live in that area. He would not be entitled to receive from the Corporation the half of the amount attributable to Heta Heta land as Heta Heta land is not an ‘area’ for the purposes of Part I of the Third Schedule. As the distribution by the Defendant was done on an individual basis, which has not been attacked, then the Plaintiff is entitled to his individual share in that distribution at the appropriate rate. Equally members of his line who had elected to receive a distribution in respect of DEKURANA would have been entitled to receive their individual share in the distribution. There is no indication in the evidence that the Plaintiff is authorised to receive that money on their behalf or that to pass the money receivable by them to the Plaintiff would be in accordance with custom. As the Plaintiff sues as representative of his line, the only course open to me is to order, in relation to the past distributions, an enquiry as to who in that line was entitled to receive a distribution and the amount due upon that distribution. Unless settlement is reached I shall order that this enquiry be conducted by a Magistrate sitting as a referee of the High Court pursuant to Division III of Order 38 of the High Court (Civil Procedure) Rules, 1964.

(iii) An injunction to restrain the Defendant from further breaches of trust.

I have already indicated my view on the use of the word ‘trust’. I do not consider this case is an appropriate one for an injunction. I have, I hope, made clear in my judgment who is entitled to receive a share of the distribution in respect of DEKURANA area. Failure to distribute to those persons would be breach of a duty imposed by the Act and may lead to further court action.

(iv) and (v) relate to costs and further relief on which I shall hear counsel.

Determination and Orders accordingly.