Kisa v Attorney-General [1997] SBHC 1; HC-CC 156 of 1993 (3 January 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 156 of 1993

WILLIAM KISA

-v-

ATTORNEY GENERAL & OTHERS

>Before: Palmer J

Hearing: 17th December, 1996 - Ruling: 3rd January, 1997

Counsel: T Kama for the Applicant / Second Defendant; P.vota for the Third to Sixth Defendants; P. Lavery for for the Respondent/Plaintiff

PALMER J:

This is an interlocutory application by summons filed on 14 October, 1996 for orders inter alia:

"1. That the undertaking given by the Second Defendant dated the 22nd day of June 1993 be varied to exclude land areas of Hiriro land from Koloseleai River to Vasara River and from Soafefele River to Ndou River.

2. The Second Defendant be allowed to commence its logging operation within Hiriro land from Koloseleai to Vasara River and from Soafefele River to Ndou River."

Three affidavits have been filed in support; the first two consist of two joint affidavits by George Agava Zama and John Kari Aqorau filed on 19 November and 27 November, 1996, and the other by Fred P. Seda filed on 11 December, 1996.

There appear to be two grounds advanced in support of the application of the Second Defendant. One is an assertion by the Second Defendant that the claim of the Plaintiff did not include the areas referred to in the summons from Koloseleai to Vasara River and from Soafefele River to Ndou River. The other relates to a letter of consent from the Plaintiff dated 19th July, 1996, and exhibited to the second joint affidavit of George Aqava Zama and John Kari Aqorau as "HH2", that even if the Plaintiff's claim covers the whole of Hiriro land, he had agreed by that letter to allow the Second Defendant to enter and commence logging in the areas of land mentioned in his letter. The application of the Second Defendant is supported by the Third to Sixth Defendants.

Background facts.

The Statement of Claim of the Plaintiff (William Kisa), as amended, states inter alia, that he is one of the customary land-owners of Hiriro land, on Rendova Island, but denies that the third and fourth defendants, (George A. Zama and John Kari) were land-owners of the said land. This is despite the fact that the Rendova Area Council in its determination had identified both defendants in particular the third defendant, as one of the persons lawfully entitled from the Hiriro Tribe, to grant timber rights over Hiriro land.

The timber rights hearing in respect of Hiriro land inter alia, had been held at Hopongo Village, Rendova Island, between 11th - 14th April 1989. A copy of the minutes of the Rendova Area Council is annexed to the affidavit of James Remobatu filed on 27th May, 1993 and marked "A". At page 4 of the said minutes of the Rendova Area Council, a list of names of Applicants purporting to represent the Hiriro Tribe had been recorded. This comprised eleven names; including the names of the Plaintiff and the third and fourth defendants. At page 5, paragraph 4.2(g), it was recorded that there were no objectors from Hiriro Tribe. At pages 8, 9, and top of page 10, the Area Council heard statements from those persons as to their lineage in respect of Hiriro tribe. At page 18, of the same minutes, paragraph 8.7(b), the Area Council determined that out of the eleven applicants, the following six persons were the persons lawfully entitled to grant timber rights on behalf of the Hiriro tribe:

1. George Hite of Baniata

2. William Kisa of Hopongo (Plaintiff)

3. George Agava Zama of Hopongo (third defendant)

4. Aaron Kerovo of Lokuru

5. Philemon Gumi of Baniata and

6 King Zavo of Egholo.

Subsequently, a timber rights agreement was entered into between the land-owners and the Second Defendant dated 10th January, 1990. A copy of the said Agreement is annexed to the same affidavit of James Remobatu and marked "B". That agreement had been signed inter alia, on behalf of the Hiriro tribe, by the third defendant alone; excluding the other five representatives, the plaintiff included. The other four representatives, George Hite, Aaron Kerovo, Philemon Gumi and King Zavo however, do not take issue with having been excluded; not the Plaintiff He claims that as one of the persons identified to represent the Hiriro tribe, he should have been consulted before the Agreement had been signed. His omission, whether deliberate or not, he argues is fatal to the validity of the Agreement. Subsequently, the licence issued in respect of Hiriro land was invalid, and that thereby the Second Defendant had trespassed on the said land and converted the timber extracted causing loss and damage to him.

I note it is not in dispute that the area of Hiriro land as identified by the Rendova Area Council stretches from Piko River, to Mt. Tiroana, to Hazoari River, then to Hiriro Hill, on to Dou and back to Piko; excluding registered land adjacent to the coast.

The issues to be considered.

One of the obvious crucial issues which will have to be determined by the court in the main trial is whether the omission of the Plaintiff from the negotiations of the timber rights agreement and its execution, fatal to the validity of the Agreement dated 10th January, 1990. I am not required however to determine this question here. The issue before me is whether the terms of the Undertaking given by the Second Defendant dated 22nd June, 1993, can be varied in the terms sought in the summons filed on 14 October, 1996, pending determination of the main issues in this case.

In deciding this point, one of the crucial matters to be considered obviously is whether damages will be an adequate remedy, in the circumstances of this case, where the Second Defendant's Undertaking is varied so as to allow it to enter parts of Hiriro land to commence logging operations. In seeking to arrive at a just solution, it is important to bear in mind what the claim of the plaintiff is. It is that he claims a right, as one of the six persons determined by the Rendova Area Council, lawfully entitled to grant timber rights, to be consulted in the negotiations of a Timber Rights Agreement with the Second Defendant. and in its execution. As a result of that omission, whether deliberate or not, he claims that the Agreement entered into on 10th January, 1990 and the Licence issued subsequently were invalid.

The crucial question for this court to consider at this stage is whether, the breaches of the said right to be consulted and the right to participate in the execution of the said Agreement, adequately compensatable in damages or not. It is not the question whether the Agreement and the Licence are valid or not which attracts the question whether damages would be an adequate remedy or not. Those are consequential determinations. Until the rights of the plaintiff are ruled upon, it cannot be denied that the Second Defendant has a valid licence to fell, extract and export logs from the said land. If the licence should be found at the end of the trial to be invalid, then the plaintiffs remedy in my respectful view can be adequately compensated for in damages. This was also the view held by his Lordship Sir John Muria C.J. in Rolland Masa & Others -v- Kololeana Development Company Limited & Others (ibid) at page 18. It should be borne in mind that the facts of this case is different to some extent from the usual type of claim which comes to this court for restraining orders. In such claims the plaintiff usually is an "objector", that is, unwilling to negotiate for the disposal of his timber rights right from the beginning, and claiming competing rights of ownership over the land in dispute. This case is different in that the facts as portrayed in the minutes of the Rendova Area Council dated 11th-14th April, 1989 showed that the plaintiff was not only determined as one of the land-owners lawfully entitled to grant timber rights over Hiriro land, but that he was also willing to negotiate for the disposal of his timber rights to the Second Defendant).

It should also be noted that the determination of the Rendova Area Council was to the effect that he was identified as one of the persons representing the Hiriro Tribe, lawfully entitled to grant timber rights over Hiriro land and the right to negotiate with the Second Defendant. There was no determination by the Rendova Area Council that his rights may have existed or be related to any specific land area in Hiriro land. The most that can be concluded at this stage, in the absence of anything to the contrary, is that he shared joint timber rights with other five land-owners. Any breaches therefore of such joint rights at this stage in my respectful view can be adequately compensated for by damages. Further, I note that there is nothing to suggest that the second defendant would not be in a position to meet the quantum of those damages if the plaintiff should win his case at the end of the day.

The plaintiffs claim however is also based on a right of ownership over the said land contrary to that of the third and fourth defendants. It is not clear what the position is regarding the other three land-owners. What is relevant to note in respect of the claim of ownership is that whilst this was made clear right from the beginning in the Statement of Claim of the Plaintiff, the denial of the third and fourth defendants as land-owners came about only after an amendment had been sought and obtained by order of the court at a later date. It is also pertinent to note that the Plaintiff had not sought to challenge the determination of the Rendova Area Council by way of appeal to the Customary Land Appeal Court (CLAC). If ownership had been in issue, especially that the rights of the Third and Fourth defendants had been disputed, then one would have expected the Plaintiff to take up the matter immediately as an appeal with the CLAC within the period allowed for appeals. This was not done. Further, it is plain that issues of land dispute are governed by the Local Court (Amendment) Act of 1985. There is no evidence to suggest that this process had been commenced by the Plaintiff. Further, it is important to bear in mind that the dispute pertaining to land ownership is not so much that the Plaintiff does not wish to negotiate with the Second Defendant for the disposal of his timber rights but that as a land-owner he should have been included in any negotiations and entitled to take an active part in the eventual signing of any timber rights agreement. It is not the case of a land-owner that is anti-logging or totally opposed to the Second Defendant carrying out logging operations on the said land, otherwise, he would have said so in the Area Council hearing at Hopongo Village, Rendova Island held from 11th 14th April, 1989. The question of adequacy of damages even on the issue of ownership claims by the Plaintiff with respect, must be answered in the affirmative.

This brings me next to consider the effect of the letter of consent referred to in the joint affidavit of George Agava Zama and John Kari Aqorau filed on 27 November, 1996 and the significance this court should place on it. The letter is marked exhibit "HH2" in the joint affidavit of George Agava Zama and John Kari Aqorau filed on 27 November, 1996. It is addressed to the Registrar of High Court and copied to the Solicitor of the plaintiff, Patrick Lavery. It reads in full as follows:

" I, William Kisa, hereby agree with the followings:

1. That the undertaking given by KTC Company Limited dated the 22nd June 1993 be varied to exclude an area of Hiriro Land from Koloseleai River to Vasara River.

2. That KTC be allowed to commence its logging activities with Hiriro land from Koloseleai River to Vasara River.

3. That all trees logged shall be exported or milled that the royalties shall be paid into Hiriro Landowners Trust Board's account at the National Bank of Solomon Islands (yet to be opened).

4. That the royalties shall be paid into Hiriro Landowners Trust Board's account at the National Bank of Solomon Islands. (yet to be opened)

5. The management of royalties will be decided by the trustees of the Board as stipulated in the Hiriro landowners Trust Board.

6. That, I William Kisa be included as a signatory for Hiriro Landowners Trust Board Account yet to be opened at the National Bank of Solomon Islands."

The letter is dated 17th July, 1996, and signed by the Plaintiff before a Commissioner of Oath, Fred Peter Seda. Mr Seda has sworn an affidavit filed on 11th December, 1996, deposing to the fact inter alia, that not only did the plaintiff indicate to him that he understood the terms of the letter but that he also freely and voluntarily signed the letter in his presence.

There doesn't appear to be any copy of such letter ever received by the Registrar of High Court. It is not clear whether any copy was ever sent in the first place. The original of that letter therefore is not in evidence before this court. Despite the absence of the original, there has been little challenge made as to the authenticity of the photo-stat copy of the said letter submitted to this court in the joint affidavit of George Agava Zama and John Kari Aqorau. No affidavit in reply. has been filed by the plaintiff and no oral evidence given in the court hearing on 17 December, 1996. This silence by the plaintiff with respect cannot go unnoticed. On one hand I appreciate that it does not necessarily mean agreement. On the other hand, the terms of the said letter are fairly consistent with the primary claim of the plaintiff that whilst he had been willing to negotiate for the disposal of his timber rights, his grievance lie in the fact that he had not been consulted in the actual negotiating process and being omitted in the signing of the said document. It would appear (I may be wrong), that the main concern of the plaintiff is in being excluded from taking any active part in the distribution of the royalties due and may be the rate of royalty payable. Whilst the letter of consent appears to address those issues, in particular on the issue of membership of any Trust Board to be set up, I fail to see any justifiable reason for excluding the plaintiff from any Trust Board that may be set up. In fact, the six persons identified by the Rendova Area Council in my respectful view should be automatic members of any such Trust Board.

It seems to me that the set up of a Land-owners Trust Board (which should consist of the six land-owners and any others included by the Tribe) to administer the distribution of royalties, would go a long way in addressing some of the outstanding issues in this case. This is a matter for the parties to address seriously and act upon where appropriate. It is not necessary at this stage however for the Court to make any directions to that effect.

Taking all the above factors into account, I am satisfied the following orders can be made.

ORDERS OF THE COURT:

1. Order that the Undertaking given by the Second Defendant (Kalena Timber Co. Ltd) be varied to exclude the area of Hiriro Land from Koloseleai River to Vasara River, provided that a further Undertaking for damages be filed by the Second Defendant.
2. There subsisting a timber rights agreement and licence in respect of the said area, the Second Defendant may commence logging operations within the said area stretching from Koloseleai to Vasara River.
3. Order that the royalties due in respect of the said land he paid into the same Solicitors Trust Account (opened pursuant to the Undertaking of the 22nd June 1993) and interest bearing until further orders of this court.
4. Costs in the cause.

ALBERT R. PALMER
The Court.