Gandley Simbe v East Choiseul Area Council [1997] SBHC 67; HC-CC 033 of 1997 (17 July 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 33 of 1997

GANDLY SIMBE

-V-

EAST CHOISEUL AREA COUNCIL & OTRS.

High Court of Solomon Islands
(Palmer J.)

Hearing: 20th May, 1997
Judgment: 17th July, 1997

P. Lavery for the Plaintiff
J. Sullivan for the Second to Fourth Defendants

PALMER J.: This is an inter partes hearing to determine whether the interim orders issued ex parte by this Court dated 7th February, 1997 should be continued or not.

The first issue this Court has to consider is whether there are serious questions to be tried. In brief, Mr Lavery for the Plaintiff submits, that there are a number of serious issues for the consideration of this Court.

The first issue arises from the assertion that the Plaintiff’s tribe, the DALI TRIBE, is the customary landowner of OLOGHO LAND (this is referred to as the Dali Tribe motherland), and thereby the persons lawfully entitled to grant timber rights over the said land. That land stretches from Loanga river to Lalaguti stream and extends inland along the Oaka river as indicated in the map marked Exhibit "1" attached to the affidavit of Gandly Simbe filed on 7th February, 1997. The boundary of that land is outlined in orange in the exhibit. The areas of land which are the subject of this case is those areas of land described as Nola Land, and Vure Land (this is part of the area of Volekana I Land). In the exhibit marked "GS3" annexed to the affidavit of Gandly Simbe filed on 7th February, 1997 Vure Land is outlined in purple and Nola land in orange stripes.

The assertions of ownership in respect of part of Volekana I land (Vure Land) and Nola land included customary notions of "lua bani" (land given through intermarriage with women from Dali Tribe) and "itingini" (the right to take back such land where the rights of the original landowners had been denied by the recipients of "lua bani").

Other documentary evidence had also been filed with the aim of challenging the rights of ownership of the third and fourth defendants.

Unfortunately, the recent rulings of the Court of Appeal in the case of Allardyce Lumber Company Limited and Dovele Development Company Limited v. Nelson Anjo CAC No. 8 of 1996 ("Anjo’s Case") and Mega Corporation Limited v. Nelson Kile CAC No. 1 of 1997 ("Kile’s Case"), make very clear that issues of ownership should not be raised in this Court as this Court does not have jurisdiction to deal with such issues for purposes of a licence under the Forest Resources and Timber Utilization (Amendment) Act, 1990 ("FRTUA Act"). At page 10 of Anjo’s Case, the Court of Appeal stated:

"In the Court below, appellants sought to dispute the question of ownership of this land. With respect the appellants were not entitled to raise this issue. The High Court has no jurisdiction to deal with questions of ownership of customary land for purposes of a licence under the Act. It follows from this that the question of ownership cannot be raised on appeal before us."

The same view was expressed by the Court in Kile’s Case at page 3:

"The question of ownership of the Sareai land will not be determined in this action, in which only the propriety of the issue of the felling licence is questioned."

The approach therefore which this Court normally takes in accepting "claims" of ownership or rights of ownership, as serious issues should now be re-evaluated, corrected and made to conform with the Court of Appeal’s recent rulings.

The effect in essence is that because this Court does not have jurisdiction to deal with issues of ownership, they should not be considered when dealing with the question of whether an interlocutory injunction should be granted or not. In reality those so-called claims of ownership before this Court are nothing more than mere assertions and cannot amount to serious issues before the Court. This would appear to include the situation where a land dispute case had been commenced under the Local Court (Amendment) Act, 1985. In such a case, whilst it may be argued that a serious question to ownership of land exists as between the competing landowners before those courts, for purposes of the FRTUA Act, they are but mere assertions of ownership and therefore should not unduly affect the way this Court should perform its balancing exercise on whether an injunction should continue or not. In Kile’s Case, the Court of Appeal recognised that a case had been commenced under the Local Court (Amendment) Act, 1985 and so set aside a certain percentage of the log sale proceeds in the event the Respondent should win his case at the end of the day. The same Court however declined to uphold the interlocutory injunction that had been granted by this Court. In the facts of this case, there is no evidence to suggest that a land dispute case had been commenced under the Local Court (Amendment) Act, 1985.

I am not satisfied therefore that the submission on the rights of ownership of the Plaintiff can be regarded as giving rise to any serious questions before this Court, other than mere assertions.

The second issue raised is that the East Choiseul Area Council ("ECAC") had acted ultra vires its powers in the meeting held at Vure Village between 31st May, and 6th June, 1995 when it went ahead and considered the matters set out in section 5C(3)(a) and (b) of the FRTUA Act in respect of Volekana I Land and Nola Land. He argues that this Court had set down the law in Hyundai Timber Company Limited and Others v. The Attorney-General and Others CC No. 79 of 1993 ("Hyundai’s Case") judgment delivered on 11th November, 1993; that where it is clear to the Area Council that a dispute exists as to ownership of land, then it must reject the application and advise the parties to sort out their dispute in accordance with the provisions of the Local Court (Amendment) Act, 1985. Otherwise, it would be acting ultra vires its powers as stipulated in the said Act. Mr Lavery submits that this is the current law in application and must be complied with. He says it should have been clear to the ECAC, that a dispute existed over ownership of both areas of land and rejected the application.

The third and fourth Defendants, on the other hand, submit that the ECAC did not act ultra vires its powers and that its determinations were proper and valid in law and cannot be impeached save on appeal. Where the Plaintiff has failed to lodge any appeal within the prescribed period, then basically that is the end of the matter. In other words there is no serious issue before this Court to consider on this point.

The issue for this Court to consider therefore is whether there is a serious question to be tried on the submission of ultra vires. In line with this submission, I have been asked to re-visit Hyundai’s Case in the light of the recent Court of Appeal’s judgments in Anjo’s Case and Kile’s Case.

Mr Sullivan, of Counsel for the Defendants, submits that the approach adopted in Hyundai’s Case cannot now stand in the light of those recent pronouncements on how the Courts should approach questions of interlocutory injunctions in logging cases. It is important therefore to get the correct vibrations from those recent judgments and adopt the correct approach.

The question whether the approach adopted in Hyundai’s Case still good law must now be re-evaluated. Having considered those recent judgments, what is being implied in my respectful view is as follows. For purposes of acquiring timber rights and issue of a licence, the Area Councils are mandated by the Forest Resources and Timber Utilization (Amendment) Act, 1990, inter alia, to enquire into and determine who among the landowners (including disputing owners), are the persons lawfully entitled to grant timber rights. The fact that issues of land ownership are being raised before the Area Council is no bar to the performance of the statutory functions of the Area Council as stipulated in section 5C(3)(a) and (b) of the Act. Whether it is clear to the Area Council that a dispute exists as to ownership of land and subsequently the trees, is immaterial to the exercise of its statutory functions. It is still obliged under paragraph 5C(3)(a) to determine whether the landowners are willing to negotiate for the disposal of their timber rights or not. If there are other landowners who claim opposing rights of ownership over the timber rights, then these should be noted, but this does not bar the Area Council from going on to consider the matters also stipulated in paragraph 5C(3)(b). Where there are landowners with opposing claims of ownership over timber rights, then the Area Council is required to hear their claims and to make a determination whether they or the persons proposing to grant timber rights are the persons lawfully entitled to grant such rights. Once a valid determination has been made, the only course open is by way of appeal under section 5E of the FRTUA Act.

In many ways, the functions of the Area Council are similar to the functions of an Acquisition Officer under Part V of the Land and Titles Act; where the Acquisition Officer is required to hold a public hearing (a "sit down") and hear the claims of any claimants as opposed to the persons who purport to be the owners or representatives of such owners, and then determine the identity of the persons who have the right to sell or lease the said land.

The question raised earlier therefore, whether the approach adopted in Hyundai’s Case still good law, in my respectful view must now be answered in the negative. That is that, Area Councils are required under the FRTUA Act to determine the questions raised in paragraphs 5C(3)(a) and (b), irrespective of whether it is apparent that a dispute exists on the question of land ownership and rights of ownership over land where the trees are situated. In those circumstances, it is the Area Council and on appeal, the Customary Land Appeal Court, that has been mandated under the FRTUA Act to determine who out of those various landowners claiming ownership rights are the persons lawfully entitled to grant such rights. The law stated in Hyundai’s Case therefore should no longer be followed.

But even if I am wrong on this, I am not satisfied in the circumstances of this case, that it was open to the ECAC to find that a dispute existed in respect of Volekana I land, and thereby to reject the application. In order to see this more clearly, it is pertinent to consider the minutes of the ECAC meeting in some detail.

According to the affidavit of Mason Pabulu (Secretary to the East Choiseul Area Council) filed on 2nd April, 1997, at paragraphs 4 and 5, the timber rights hearing for Volekana I land was held on 1st June, 1996. There is no dispute that the East Choiseul Area Council was validly constituted.

According to the minutes of the ECAC, a copy of which is annexed to the affidavit of Mason Pabulu filed on 2nd April, 1997 and marked as "MP1", the landowners who were present in the hearing were the third Defendant, representing Volekana Tribe, Nathan Sika representing Sakoboe Tribe and Galotaba (Derald Galo’s father - one of the members of the Plaintiff’s tribe).

What transpired in that hearing is crucial. The first landowner given opportunity to speak was the third Defendant. I think it can be taken judicial notice of, that he (on behalf of his tribe) was willing to negotiate with the Second Defendant for the disposal of their timber rights.

His evidence or submission before the Council was very brief. He identified the boundaries of their land as starting from Puta River to Kuso and then to Tungunu Koroto. He then gave a brief explanation as to how the Sakoboe tribe had been given permission by his tribe to settle on the said land. The implication being that they (Volekana Tribe) were the original landowners.

The second person to speak was Nathan Sika on behalf of the Sakoboe tribe. He confirmed that his tribe had resided on the land for the past 47 years under the authority of the Volekana Tribe and that they did not object to the proposed logging activities to be carried out on the said land.

The third person given opportunity to speak was Galotaba, but only after it was discovered that the writer of the letter objecting to the timber rights hearing, Derald Galo, was not present to speak on his objection. Galotaba is the father of Derald Galo and portrayed himself as a true and authorised representative of the Dali Tribe and entitled to speak on the objection before the Council. Whether he was so mandated by the tribe or Derald Galo is not clear, but what he says as recorded is crucial to the determination of the ECAC in respect of Volekana I land. He states:

"I can recall my son’s objection to this application, however it was from his conscious (sic) and not from me. Therefore this matter has now been resolved by our tribe and any objection by my son is hereby revoked."

In the affidavit of Mason Pabulu filed on 2nd April, 1997, at paragraph 7, he states that the ECAC had the benefit of two chiefs, Dalisaru and Mathusela Mavokana, well versed in custom, to advise on customary matters. According to Choiseul custom, a son cannot overrule his father. A father however can overrule his son’s objection, as has happened in this case. He states that the ECAC considered the revocation by Galotaba in custom as conclusive.

The third defendant in his affidavit filed on 27th March, 1997 at paragraph 4 also confirms the revocation and its relevance in Choiseul custom.

The scenario before the ECAC therefore was as follows. Whilst they had a letter of objection in their possession, and were aware that a dispute existed as to the ownership claims of the third defendant at the beginning of the hearing, the subsequent revocation of that objection by Galotaba (the father of the objector), was held by them to be valid in custom and thereby removed any traces of any dispute or opposing claims. The ECAC thus were entitled to rule in favour of the claims of the third defendant as was contained in their determination of 1st June, 1995 (see Exhibit marked "MP2" annexed to the affidavit of Mason Pabulu filed on 2nd April, 1997).

In the circumstances, the only course open to the Plaintiff where he disagrees with that determination, is to appeal against the finding of the ECAC.

This brings me to the next question whether an appeal had been lodged within the prescribed period. The answer is no. There is no evidence of any appeal having been lodged with the Customary Land Appeal Court (Western) under section 5E(1) of the FRTUA Act, 1990.

The Plaintiff nevertheless has sought to produce affidavit evidence which seeks to suggest that letters of appeal had indeed been dispatched. Unfortunately, the most that can be concluded from the affidavit evidence and oral evidence of Penrose Ponisi was to the effect that letters of appeal had been delivered by him to Mason Pabulu with the specific request that these be forwarded to the Magistrate (Western). Mason Pabulu on the other was not available to give oral evidence on the matter. In his affidavit evidence filed on 2nd April, 1997, he denied receiving any such documents. Whatever or wherever the truth lies, the simple fact of the matter is that no appeal had been lodged with the Magistrate (Western) within the prescribed period. No serious question accordingly arises on the submission of ultra vires.

There has been some suggestion that when the Plaintiff’s group did arrive later at the Area Council meeting, they did raise their objections to the whole of Ologho land when talking about Oloko Land and that thereby, their objections should have been noted in respect of Volekana I land and Nola land. Whatever the reasons of the ECAC not to consider those objections in respect of the other land areas, the proper course open to the Plaintiff in any event was to appeal the determination of the ECAC and to raise issues of ownership before the Customary Land Appeal Court which had jurisdiction to deal with those questions. This they fail to do and cannot now raise those issues before this Court.

The ECAC accordingly was lawfully entitled to proceed with the application pursuant to section 5C(4) and (5) and 5D(2).

The same issues raised above apply in the case of Nola Land. There was no objection raised by the Plaintiff and his tribe at the time this land was heard by the ECAC on 1st June, 1995, although the Plaintiff claims in his submissions that his objections to Ologho Land in fact included Nola Land. Even if those objections had been raised but not considered by the ECAC, the course open to the Plaintiff is to appeal. Again, he had failed to do that, and therefore cannot now raise those issues before this Court.

The third serious issue raised by the Plaintiff relates to the validity of the logging agreement executed between the Second Defendant and the landowners, in so far as it contained no less than 29 alterations, amendments, or deletions from the Standard Logging Agreement for customary land (form 4), as prescribed by the Forest and Timber (Prescribed Forms)(Amendment) Regulations 1985 (the "Regulations").

Having made some brief comparisons with the prescribed form as set out in the Regulations, I am satisfied this gives rise to a serious issue.

This brings me to consider the next question; that of adequacy of damages. If the Plaintiff succeeds at the end of the day, would damages be an adequate remedy. In my respectful view the answer must be yes. However, bearing in mind the fact that even at this stage the ownership claims of the Plaintiff are nothing more than mere assertions, the prospects of him succeeding with any claims for damages is very low. In those circumstances, the injunction currently in force should be discharged.

On the question of an undertaking for damages, none has been provided. That must be weighed in the circumstances of this particular case against the Plaintiff.

The balance of convenience also weighs heavily in favour of the discharge of the interim injunction.

And finally on the strength of the parties case, whilst the prospects of success on the validity of the logging agreement cannot be said to be weak or not real, those are matters which can be directly addressed and corrected by the parties and the document re-executed at the end of the day. In any event, it would not be a sufficient ground for allowing the injunction to continue.

ORDERS OF THE COURT:

1. Direct that the order of this Court dated 7th February, 1997 be discharged in its entirety forthwith.
   

2. Costs of this application to be borne by the Plaintiff.

THE COURT.