Jovere v Makoto [1996] SBHC 89; HCSI-CC 138 of 1996 (14 August 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.138 of 1996

LUXTON JOVERE
PLAINTIFF

-v-

JACOB MAKOTO
1^st DEFENDANT

NORTH NEW GEORGIA TIMBER CORPORATION
2^nd DEFENDANT

High Court of Solomon Islands
(Palmer J)
Civil Case 138 of 1996

Hearing: 24th June 1996
Judgment: 14th August 1996

D. Campbell for the Plaintiff
T. Kama for the Defendants

PALMER J: On 28th December, 1995, this Court gave directions concerning the further conduct of this case for one reason or another, those matters required by the Court to be further canvassed by the parties were not brought to the attention of the Court until well into the middle of 1996. The parties have now made final submissions and this is the judgment of the Court in respect of the summons of the Defendant filed on 12th September 1995 on one hand, and the claim of the Plaintiff on the other hand.

To recap briefly, the claim of the Plaintiff can be summarised as a claim made under section 6(e) of the North New Georgia Timber Corporation Act 1979 (the “Act”), and Part 1 of the Third Schedule (paragraphs 1(1) and 3). He claims that he is not only a member of a tribe whose customary land lies within the area of the New Georgia lands, namely, LUPA LAND, but that he also has the right to live in that area in accordance with custom, and therefore is entitled to receive his share from the distribution to be made to his tribe.

The Defendants on the other hand dispute the right claimed by the Plaintiff on the narrow ground that the plaintiff’s interests are to be confined to the area of land described as from “Hepa to Barora in Lupa”, and not to be extended to the area of land described as from “Mase to Hepa in Lupa”. They argue that since the proceeds of the logs came from the logging operations carried out in the land area from “Mase to Hepa in Lupa” only, that the plaintiff was not entitled to any share in the distribution of the net profits of the Corporation.

A lot of confusion has been engendered unnecessarily by what appears on the surface, to be a division of LUPA LAND. It is important at the outset to distinguish in my respectful view, a number of separate and distinct matters. The first relates to the customary land boundaries or areas as clearly and unambiguously described in the First Schedule to the Act. The second matter relates to the appointment of directors to the Board of the Corporation under the Second Schedule to the Act. And the third distinct matter relates to the question of distribution of profits under Part I of the Third Schedule to the Act.

THE CUSTOMARY LAND BOUNDARIES OF THE NEW GEORGIA LANDS

The interpretation section of the Act defines “the New Georgia lands” as:

“means those areas of land in North New Georgia more fully described in the First Schedule”.

The First Schedule in turn describes the boundaries as follows:

“The New Georgia lands comprise the customary land areas in the northern and western parts of the island of New Georgia known as-

Dekurana

Gerasi

Koroga

Lupa

Rodana

which lands are more fully delineated in a plan of the whole lands and by a description of the Southern boundary of such lands marked “Plan of Lands and description of Southern Boundary for First Schedule to North New Georgia Timber Corporation Act 1979” to be deposited in the Office of the Commissioner of Lands and, where there is any conflict between the plan of the lands and the description of the Southern boundary, the description shall prevail for all purposes”.

Initially, Lupa Land was delineated under the original Act 1979 as “Lot 4 of LR 731”. This was subsequently amended in 1980 as described above and subsists to the present time. On this point, I have found the affidavit evidence of David Alexander Campbell filed on 15th March 1996, in particular, paragraphs 3 right through to 21, helpful. Annexure DAC 2 is significant because it accurately describes the reasons leading to the amendment, in the description of the New Georgia Lands; in particular the notable change, to the description of Lupa Land. From this we can ascertain more clearly the boundaries of Lupa Land. Annexure DAC 3 to the same affidavit of David Alexander Campbell refers to the resultant plan numbered 2188, superseded by plan no. 2189, and is the definitive plan deposited in the Office of the Commissioner of Lands. This plan showed clearly that Lupa Land is one big area of land; and has never been divided into two parts, as may have been assumed by some.

APPOINTMENT OF DIRECTORS

When we come to consider the question of appointment of directors, however, there appears on the surface to have been a division of the Lupa land area into two separate and distinct parts. Initially, under the 1979 Act as un-amended, the directors appointed were supposed to have been the representatives of Lupa Land area as a whole. Under the North New Georgia Timber Corporation (Amendment) Act, 1984, (the “1984 Amendment”) however, the persons appointed as directors to represent their respective tribes in the Corporation in respect of Lupa land were now divided into two groups, representing two areas within Lupa Land. For the customary land area from Mase to Hepa in Lupa, the directors were:

“(i) Makoto

(ii) S. Koba

(iii) Nira Viga; and

(iv) Eddie Panda”

For the customary land area from Hepa to Barora in Lupa, the directors were:

“(i) Makoto

(ii) S. Koba

(iii) E. Belae

(iv) Tinili

(v) Tingo

(vi) Kuku; and

(vii) Beta Eto.”

Again, I have found the affidavit evidence of David Alexander Campbell field on 15th March 1996, at paragraph 22 and annexure DAC4, which is the Commission of Lands Enquiry Report, illuminating.

It appears that one of the reasons which gave rise to the establishment of the Commission, related to the concern that not all the tribal chiefs and all their members having traditional rights in the New Georgia lands had been properly established and identified, and that accordingly had not been represented in the Board of Directors of the Corporation. It is clear that the recommendations of that Commission set the stage for the 1984 Amendment to be effected. Much of that Amendment, almost in its entirety, reflected the recommendations of that Commission’s Report. That included the division of Lupa land into two areas, as contained in the North New Georgia Timber Corporation (Amendment) Act 1984. It is important to bear in mind that whilst Lupa Land had been divided into two areas for purposes of identifying who all the tribal chiefs were or their representatives, to represent their tribes in the Board of Directors of the Corporation, there was no corresponding amendment to the First Schedule and the Third Schedule to the Act, to reflect such a division of Lupa Land. This can be viewed as significant, because if it had been intended otherwise, by the Legislators, to carve up Lupa Land into two distinct and separate areas for purposes of calculating and distributing the net proceeds of the Corporation in each prescribed area of land, then it would have included this in the 1984 Amendment.

This raises in turn the question, as to what was the method of distribution, of the net profits of the Corporation. What does the Act say, (if any)? Section 6, of the principle Act deals with the functions of the Corporation. One of its functions, at paragraph 6(1) (e) states:

“The principal functions of the Corporation shall be-.......

(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 money as the Board may determine are required for the Reserve Fund created in accordance with paragraph (dA), to distribute the balance of the revenue of the Corporation in the manner prescribed in Part I of the Third Schedule.”

(Emphasis added)

Part I of the Third Schedule is headed ‘Distribution of profits’.

Paragraph 1(1) of the First Part requires each tribe to provide the names of their chiefs who have been authorised to receive that tribe’s share of the profits.

Paragraph 3 then goes on to say:

“The revenue available for distribution shall be distributed to the Tribal Chiefs on behalf of the members of each tribe on whose land work is currently in progress under the terms of a felling licence granted by the Corporation and where more than one area is being worked pro rata to the value of timber logged in the areas affected by the felling licence.”

Now, the issue that has been posed before this Court, is whether, a tribe whose customary land area is located within the “Hepa to Barora area in Lupa”, is entitled to a share in the distribution of the net profits by the Corporation, from the proceeds of the logging operations, which had been confined to the customary land area between “Mase to Hepa in Lupa”. The Defendants take a narrow construction on the question of distribution, whilst the plaintiff takes a wide view. Which is correct? In my humble view, in order for the narrow construction to have any merit, there must be clear and unambiguous language to that effect. Otherwise the wide, general and accepted method of distribution of the net profits must be adopted. This brings me to consider what the accepted or normal means of distribution adopted by the Board in respect of the other customary land areas. According to the Act, in particular Part I of the Third Schedule, the question of distribution of the net profits of the Corporation in my view is intended to be done per the prescribed land areas under the First Schedule, and not by each individual land area within those prescribed areas. So, irrespective of where the logging takes place, say within Rodana land, all the recognised tribes within Rodana land, would be entitled to their tribes’ share of the net profits for distribution. With respect, the same approach should be applied to the Lupa land area. As already pointed out, whilst the 1984 Amendment sought to divide Lupa land area further into two parts for the specific purpose of enabling a fairer and more correct representation of the tribal chiefs and their members in that land area, there was no corresponding amendment to that land area for purposes of distribution of the net profits of the Corporation. This must be interpreted to mean that the 1984 Amendment was not intended to affect the prescribed method of distribution set out in the Third Schedule, Part I. I think there are good reasons for this. First, although it is not disputed, that within those five land areas there are or may be many other smaller areas of customary lands, on their own, they may not be economically viable. And so by grouping them together under one big land area, it is more likely that all the tribes in that area will be able to get a fairer share of the cake. On the other hand, it is possible that there may be a tribe with a bigger land area within that prescribed block of land, and therefore may feel that it should be receiving more of the cake than the other tribes. Whilst that may be so, the Act does not seek to make such a distinction on the issue of distribution. This simply means that all the respective tribes within that prescribed land area are entitled to an equal share of the net profits of the Corporation for their area.

The second reason which can be noted is that though there may be a number of tribes with their own distinctive customary land within that prescribed land area, it seems that those different tribes may at one stage in the past have been linked in some ways; such as having a common ancestor or some common denominator. This appears to be so in the case of the various tribes claiming a right to reside in the Lupa Land area. In the affidavit of David Alexander Campbell, filed on 15th March, 1996, at paragraph 25, he referred to the findings of the Phillip’s Commissions Report 1925, in which the learned judge, found that the claimants of Lupa Land area, inter alia, were “the Kusagi natives, or, more correctly, the Kusagi and Lupa peoples who, though formerly at feud, have more or less amalgamated and are usually called ‘the Kusagi Natives’’’, (see page 139 of that Report, at the second paragraph).

According to Judge Philip's findings, Kusagi Land stretched from Enogai to Mezo. From Masi to Mezo therefore was part of Kusagi land and belonged to Kusagi natives. In other words, Lupa land belonged to “Kusagi natives”.

This leads on to the next crucial finding of the learned Judge that the Kusagi men who “looked after” or “controlled” that Kusagi land from Masi to Mezo were ‘Matengua (or Panda), Evevelu, and Kave’. The Plaintiff places all his eggs in that one basket, as irrefutable proof of his tribe’s rights or interests in Lupa land stemming from Evevelu. On the other hand, the defendants seek to argue that the Court should look further down the years to subsequent court decisions, which have more clearly defined the areas of control of those three Kusagi men, or ‘Caretakers’.

First, it must be pointed out, that the judicial findings of the Philips Commission, have never been overturned, challenged or disputed. Over the years they have been repeatedly referred to as conclusive and authoritative findings. Whilst it may be conceded on one hand, that those three Kusagi men, may have had their specific areas of “control”, that does not detract from the common denominator that they were “Kusagi natives (men)”, and by virtue of their roles and responsibilities, were men of influence and power, and therefore must have had a right to reside in that land area; whether it be by virtue of their rights as land-owners or by some other recognised customary process. What is clear is that they had a right to reside in that land area.

The Plaintiff is a direct descendant of Evevelu. This has not been disputed. What has been disputed is his right to reside or live in the Mase to the Hepa areas in Lupa, and thereby depriving him of any right to any share in the distribution of the net profits in respect of that particular land area. It is this Court’s respectful view that the fact that later Court decisions may have confined or restricted the area of control of Evevelu, or his descendants to a smaller area within Lupa area, that does not affect the question of distribution of the net profits of the Corporation and the entitlement of the Plaintiff. It is sufficient that it has been shown plainly and clearly, without any shadow of doubt, that the Plaintiff is a direct descendant of Evevelu, and that he has an indisputable right to live in Lupa Land; whether it is in the Mase to the Hepa area, is immaterial for purposes of determining his entitlement to a share in the distribution of the net profits as stipulated by the Act.

It is interesting to make a comparison with paragraph 5 of Part I of the Third Schedule, as amended (see the 1984 Amendment).

“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 be entitled to receive a distribution in respect of each area in which such member or group of members claim to be entitled to live.”

The position prior to the 1984 Amendment was that a member or group of members were required to make an election in respect of one area only.

The 1984 Amendment seemed to have taken the matter further, by giving recognition to the fact that there may have been members or group of members of a tribe which may have been entitled to live in more than one of the prescribed areas of land. Where that is established, then they shall be entitled to receive a distribution in respect of such areas. The analogy that can be drawn with regards to the Lupa Land area is that, if a person can receive a distribution in respect of more than one area, in which he/she claims to be entitled to live, then how much more should he be entitled to receive a distribution in respect of a clear and undisputed right to live in Lupa Land, whether it be in the Mase to Hepa area or from Hepa to Barora.

I am satisfied the summons of the Defendants filed on 12th September, 1995 should be dismissed, whilst the claim of the Plaintiff that he be paid his share of the net profits due to his tribe be allowed.

Having said that, I note that in practice, what appears to have been done, (and this may have been with the consent or consensus of the Board of Directors, in ignorance of the requirements or the correct and true interpretation of the provisions of the Act), was that for purposes of distribution of the net profits obtained from those two areas in Lupa Land (that is, Mase to Hepa, and from Hepa to Barora), the Board also divided them into two parts. So, when logging was being carried out in the area from Hepa to Barora for instance, it appears that the net profits obtained from that area were never distributed to the tribes residing in the land area from Mase to Hepa, apart from those which were identified by later Court decisions to have interests also in Hepa to Barora. The effect of this Court’s decision will mean that whatever net profits were distributed for the tribes in the Hepa to Barora area should also have included all the tribes in the Mase to the Hepa area. The overall result therefore, will require some careful calculations and cross calculations of the entitlements of all those tribes having the right to live in Lupa Land, since payments were first distributed. The money restrained by orders of this Court therefore should only be paid out after the above matters have been properly determined. It is my view that the sanction of the court should further be obtained when the money is ready to be distributed.

As to the second part of the claim of the Plaintiff regarding the question of breach of statutory duty on the part of the Second Defendant, (the North New Georgia Timber Corporation), whilst it is recognised that there had been a failure on the part of the Corporation to make any direct payments to the Plaintiff and therefore may have amounted to a breach of statutory duty, it should also be borne in mind on the other hand, that the Corporation can only make such payments, as the Board of Directors shall determine under paragraph 2 of Part I of the Third Schedule. So although there had been a failure to make any payments to the Plaintiff of his share of the net profits of the Corporation in respect of Lupa Land, it must be conceded that this had been done under a misconception on the part of the Board, until the matter was raised formally by way of this claim in May of 1994. It should also be borne in mind that the Plaintiff was adequately represented on the Board of Directors by his tribal chiefs as appointed by the Minister in respect of the customary land area from Hepa to Barora, and that no issue was taken by this Plaintiff in respect of the payments made by the Corporation from 1992 up until May of 1994. It is my respectful view that while there may have been a breach of statutory duty, in the circumstances of this case, it would not be in the interest of all the parties of this case to grant an award for damages other than nominal damages. What is important and would be fair to all the parties in this case would be to have the entitlements of all the tribes in Lupa Land, in respect of the total net profits already distributed, re-calculated and adjustments made, so that the money currently injuncted by this Court can then be fairly distributed amongst all the tribes within Lupa Land.

ORDER OF THE COURT

1. Dismiss summons of the defendants filed on 12th September, 1995.

2. Judgment against the Second Defendant, in respect of Plaintiff's claim that he be paid his share of the net profits to which his tribe would have been entitled, but only after a full and complete assessment of the entitlements of all the tribes having the right to live in Lupa Land has been finalised, and adjustments made for moneys distributed.

3. Nominal damages in the sum of $100.00 awarded in favour of the Plaintiff.

4. Costs of the Plaintiff to be borne by the Second Defendant.

5. Sanction of the Court to be obtained before money currently restrained is released.

A.R.PALMER
JUDGE