Kioto v Watts [1997] SBHC 99; HCSI-CC 111 of 1996 (7 February 1997)

CC 111.96 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil case No. 111 of 1996

BILLY BOY KIOTO

-v-

PRESLEY WATTS, SILAS MILIKADA
(Both Trading as Ofagio Company)

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 111 of 1996

Hearing: 6 February 1997
Judgment: 7 February 1997

A. Nori for the Plaintiff
A. Radclyffe for the Defendants

MURIA CJ: The defendants come to this Court seeking an order that the injunction granted by this Court (Awich, Commissioner as he then was) on 3 May 1996 be discharged on the ground that the Chiefs have on 23 October 1996 ruled that the plaintiff has no interest in custom in MBulo Land. The effect of the discharge, if granted, is to enable the defendants to carry out their proposed logging operation on MBulo Land.

It is ideal, I feel, that we look briefly at the facts of this case. The defendants applied for a Licence to fell trees and to extract timber on MBulo Island, Peava and Biche. Following the usual process for obtaining a logging Licence, the defendants were issued Licence No. TIM 2/70 which is restricted to Peava and Biche Lands only. It appears that some operation had taken place on MBulo Island. The operation on MBulo Island has however been stopped pursuant to direction from the Commissioner of Forests.

The ownership of MBulo Island has been in issue and it is that leads to these proceedings. There was a Chiefs hearing arranged for 16 May1996 to determine who in custom has rights in MBulo Island. That meeting did not take place since only three Chiefs were present.

The plaintiff, defendants and others however also turned up for that meeting.

A subsequent meeting was arranged for 23 October 1996 at which the plaintiff did not attend. At that meeting nine (9) Chiefs were present. At the conclusion of their meeting the Chiefs determined that only the defendants have ownership right in MBulo Island and that the plaintiff has no right in MBulo Island.

The plaintiff commenced proceedings in this Court by way of Writ Claiming, inter alia, that he has customary land rights on MBulo Island. The Writ was filed on 15 April 1996 and was not issued out until 25 April 1996. One of the Order sought under that writ is an injunction restraining the defendants from entering onto, felling, extracting and removing timber from MBulo Island.

It would appear from the materials before the Court that the defendants had been operating on MBulo Island well before March 1996. That operation however, as I have said had been stopped by the Commissioner of Forests, as evidenced by his letter of 18 March 1996.

Following the issue of the Writ the plaintiff by his summons filed on 15 April 1996 had sought interim injunction restraining the defendants from felling and selling timber from MBulo Island. On 2 May 1996 the matter came before Awich, Commissioner, as he then was, on an inter parte hearing and on 3 may 1996, Commissioner Awich granted the interim injunction. The terms of the order are set in the judgment but the one with which we are interested in the present application is that contained in paragraph (1) which says:

“1. Injunction is imposed restraining the defendants and or their servants or agent from carrying on logging operations on MBulo only, not including Peava and Biche. The injunction is to last until the actual licence, which I understand is about to issue, has issued or further order of the court.”

In support of his application Mr. Radclyffe argued that as the Chiefs clearly decided on 23 October 1996 that only the defendants have ownership rights in custom in MBulo Island, the plaintiff therefore has no basis to make any claim of right of ownership in MBulo Island. As such Counsel argued, this Court should discharge the injunction and allow the defendants to carry out their operation on MBulo Island.

Not surprisingly, Mr. Nori countered that argument and argued that Chiefs decision does not remove the triable issue before this Court in this case namely, who owns MBulo Island? Counsel further argued that the plaintiff claims right of ownership in custom over MBulo Island and that apart from claiming that right in this Court, he also takes the usual step under the Local Courts Act of bringing the matter before the Local Court as he is not happy with the Chiefs decision.

I must say that I find Mr. Radclyffe’s argument attractive and one that I wish I would have embraced as it is clearly one which cut corners if I may used that expression. It certainly in my view a course that would make the Court’s day shorter if at all it can be done. But attractive though the argument is, it is one which I would not readily accede to. There are several reasons which I can think of as to why Mr. Radclyffe’s argument cannot succeed. I think I need only dwell on two of those reasons.

Firstly, the provisions of the Local Courts Act, as amended, cannot be ignored. The requirements of the law as set out in section 8D of the Local Courts Act must be observed. By virtue of that provision, a dissatisfied party to a customary land dispute heard by the Chiefs, still has the right to go to the Local Court to have his rights in a customary land dealt with, so long as he meets the requirements set out in subsection(1) of section 8D, namely:

“(a). the parties to the dispute had referred the dispute to the chiefs;

(b). all traditional means of solving the dispute have been exhausted; and

(c). no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute”

The parties in this case clearly referred the dispute to the Chiefs, they have exhausted traditional means of solving the matter namely, the hearing before the Chiefs and that the decision is not wholly acceptable to both parties, certainly not to the plaintiff. There has been instructions given by the plaintiff to his solicitor to assist him facilitate Local Court hearing to challenge the Chiefs’ decision. Those are the steps laid down by law to be followed in cases of this nature and the plaintiff has or is about to invoke that legal process to have his rights which he claims in MBulo Island ascertained. For this court to accept the defendants’ contention is to accept the Chiefs’ decision to the exclusion of any right of challenge to such decision even though the right to challenge such decision is sanctioned by law. It would simply mean that the statutory right of the plaintiff under section 8D of the Local Courts Act is subject to the Chiefs decision. This certainly cannot be and the law as Parliament lays down does not allow that to be so.

A person who is not happy with the decision of the Chiefs has the right to take the matter further to the Local Court. That is a statutory right and he cannot be prevented from doing so unless there is justification for statutory right.

Secondly, Mr. Radclyffe’s contention would, if accepted, also mean that the plaintiff’s action is virtually decided against him without any opportunity to substantiate his claims. In other words, the chiefs’ decision is to be accepted as conclusive and that the claims by the plaintiff in his main action ought to be dismissed even before the plaintiff is heard or makes use of any of the legal avenues available to him to challenge the Chiefs decision. If this is to be so, it would be a very unsatisfactory state of affairs of our justice system.

There is the argument that the plaintiff may not be telling the truth about having notice of the Chiefs’ hearing. Whether that is so or not, I think it adds nothing to the view that I already have of this matter. Unless there is something to compel this Court to deprive the plaintiff of his statutory right to challenge the Chiefs’ decision, the question of attendance or non attendance at a Chiefs’ hearing is subservient to that statutory right.

I appreciate that from a commercial point of view this adds strains, but as I have said before commercial convenience must not over-ride the need to ascertain true ownership of a customary land. This is what the court has said in Nelson Kile -v- Mega Corporation Ltd and Others, Civil Case No. 229 of 1996:

“It must be made plain that a definitive determination of ownership of a customary land is vital in any development undertaken or proposed to be undertaken on a customary land. I appreciate that some financial loss and other expenses are incurred as a consequence in the process of settling the ownership issue. But determination of customary rights or ownership of a land cannot be overridden for economic reasons as pointed out in Beti and Others -v- Allardyce and Others (CA) Civil Appeal Case NO.5 of 1992.”

For all those reasons the application to discharge the injunction granted by this Court on 3 May 1996 is refused. That injunction order remains in the same terms.

No doubt the parties would like the ownership of land issue resolved as soon as possible. In particular, the defendants no doubt want the matter resolved quickly so that they may be in the process of obtaining a Licence to enable them operate on MBulo Island. When that happened and the licence is issued, the injunction granted on 3 May 1996 shall cease to have effect.

The court is also mindful of the need to have this issue of land ownership in custom resolved as soon as possible. In order to assist the parties in this regard, the Court hereby directs the plaintiff to institute proceedings as he indicated in the Local court within 30 days from today to have the question of ownership of MBulo Island dealt with by the Local Court. It is further directed that the Local Court shall hear the matter within 30 days from the last day required to institute the proceedings as directed.

No order for costs.

Order: Application refused.

(GJB Muria)
CHIEF JUSTICE