Dennie v Dakolae Resource Development Co Ltd [1998] SBHC 135; HCSI-CC 192 of 1998 (27 November 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 192 of 1998

JOHN DENNIE

-v-

DAKOLAE RESOURCE DEVELOPMENT CO. LIMITED. ALLARDYCE LUMBER
COMPANY LIMITED. LETOPIKO BALE. MAROVO AREA COUNCIL.
THE ATTORNEY GENERAL (for the Commissioner of Forests)

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 192 of 1998

Hearing: 12 November 1998
Judgment: 27 November 1998

S. Watt for the Plaintiff
A. Nori for the 1st Defendant
T. Kama for the 2nd Defendant

MURIA CJ: At the commencement of the hearing of the plaintiff’s application for interlocutory injunction, Mr. Nori of Counsel for first defendant, raised an objection to this Court hearing the plaintiff’s application on the ground that this Court does not have the jurisdiction to hear the application. Mr. Kama of counsel for the second defendant also supported the first defendant’s objection.

The brief background to this matter is that the first defendant applied for a timber felling licence in respect of Dakolae Land. The application for grant of timber rights was considered by the fourth defendant, Marovo Area Council, on 18 October 1995 and was approved. It determined on 23 October 1995 that the third defendant representing his tribe had the right to grant timber rights over Dakolae Land.

Subsequently, the timber rights agreement was signed between the third defendant, representing his tribe and the first defendant. The determination, the timber rights agreement (Form 4 Agreement) and the feeling licence have all now been challenged by the plaintiff in the proceedings commenced by a Writ filed on 12 October 1998.

In addition to the claims for damages sought in the Writ, the plaintiff also seeks permanent injunction to restrain the first and second defendants from entering or remaining on Vavae Land for any purpose whatsoever. A further restraining order is also sought to prevent the first and second defendants from disposing the proceeds of any timber felled and extracted from the land. The second defendant had filed a conditional appearance to the action while the first defendant had appeared in Court by Counsel who announced his client was appearing under protest, as it intended and did raise objection to the Court’s jurisdiction to deal with the matter in dispute. Subject, of course, to their right to challenge the issue of the writ or the service thereof or to their bona fide intention to challenge the jurisdiction of the Court, a conditional appearance under protest is a complete appearance to the action for all purposes. The first and second defendants have now raised their challenge to the validity of these proceedings and must be dealt with first. The Solicitor for the fourth defendant having entered an unconditional appearance must be taken to accept the jurisdiction of the Court and so cannot now raise any challenge to that jurisdiction. See The Owner of The Ship “Classique” -v- Marine Services Limited, Civ. App. Cas. NO.8 of 1992 (CA) (Judgment given on 30/6/93).

In support of his objection, Mr. Nori submitted that the present action stems from the logging operation by the first and second defendants on Dakolae Land pursuant to a licence to fell timber on the said land following the completion of the procedure under the Forest Resources and Timber Utilisation Act. The authority lawfully entitled to determine who the owners of Dakolae Land were and who were entitled to grant timber rights over Dakolae Land is the Marovo Area Council, the fourth defendant. It had done that in resect of that land. No appeal had been lodged against the Area Council’s determination. That is conclusive and cannot now be raised in this Court.

Counsel further submitted that the plaintiff in this case is asking this Court to accept that he is the owner of the Vavae Land and so this Court should issue order restraining the first and second defendants from entering that land as it is not covered by the licence. That says counsel raises a question of ownership of Vavae Land which must be established before the Court can hear him. In support of his contention, Counsel relied on the decision of this Court in Robert Ratu -v- Dakolae Resource Development Co. Ltd & ors, Civ. Cas. No. 288/97 (HC), (Judgment given on 18/2/98) which applied the Court of Appeal decisions in Allardyce Lumber Company Limited & Anor -v- Nelson Anjo, Civ. App. Cas. No.8 of 1996 (CA) (Judgment given on 15/4/97) and Mega Corporation Limited - v- Nelson Kile, Civ. App. Cas. No. 1 of 1997(CA), (Judgment given on 24/4/97). In the first mentioned case of Robert Ratu, this Court, applying the Anjo’s case, stated:

“In the case involving logging timber on customary land and the present case is one such case, the position in law must be that the question of ownership of the customary land as well as the question as who among those landowners, including disputing owners, are entitled to grant timber rights for the purpose of the FRTU Act are matters to be determined by the Area Council. A right to appeal against the Area Council’s determination lies to the CLAC whose decision on such question is final and conclusive and cannot be question in any proceedings whatsoever. No power has been given to the High Court in respect of the matters set out in section 5C (3) of the Act. Consequently, those who seek to invoke the jurisdiction of the High Court seeking remedy based on a claim under a right, including the right of ownership, over a customary land must be armed with such right or evidence thereof. A mere assertion of the right is insufficient to found a basis for invoking the coercive jurisdiction of the Court”

Thus the law, as far as who has the power to determine ownership of a customary land is concerned, is clear. For the purpose of determining ownership of a customary land in respect of which timber rights are to be granted as required by the FRTU Act, it is the Area Council. In respect of other disputes arising out of customary land, it is the Local Court. The High Court does not have that power.

In the present case, the Marovo Area Council, following an application for timber rights over Dakolae Land, determined that the third defendant and his tribe were the lawful owners and therefore entitled to grant timber rights over Dakolae Land. There is no dispute that the third defendant and his tribe own Dakolae Land in respect of which a timber felling licence had been issued. The Marovo Area Council (fourth defendant) determined that and no appeal had been lodged against that determination. That is now final and this Court does not have the power to enquire into that determination.

Next, we have the plaintiff now challenging the issue of the timber felling licence granted to the first defendant over Dakolae land. The plaintiff’s Land is outside Dakolae Land and so the licence only covers Dakolae Land. Any challenge as to the validity of that licence is therefore confined to the area of land it covers as well as to any defects in the procedure leading up to its issuance. The basis for the challenge to the licence is fraud and procedural defects. At the timber rights hearing, the record shows that only Robert Ratu raised an objection concerning the map which was said to have covered areas outside those of Dakolae Land. The question of the boundary of Dakolae Land was to be identified and resolved between Robert Ratu and the third defendant. Robert Ratu’s tribe owns Jahore Land which was the subject of a litigation in Civil Case No. 288/97 between Robert Ratu and same defendants in the present case.

In addition to challenging the validity of the licence, the plaintiff in the present case, claims that the first and second defendants had trespassed onto his land, Vavae Land. He claims that he is one of the landowners and representing his tribe which owns Vavae Land. On this basis he seeks an order restraining the defendants from entering his land.

Leaving aside for the moment his challenge as to the validity of the licence granted to the first defendant, the plaintiff will have to show by evidence his right over Vavae Land. In other words, he must demonstrate by evidence that he and his tribe own Vavae Land. Secondly, he would have to show by evidence the boundary of his land into which the alleged trespass occurred. Thirdly, he would also have to show by evidence that it was the defendants who actually entered onto the land.

On the question of the validity of the licence, that will have to be dealt with at a later stage. No doubt the plaintiff would have to demonstrate his locus standi to bring that challenged since as a matter of fact, the licence does not cover the land which he says he owns, that is, Vavae Land.

The issue in this application is concerned with the plaintiff’s right to seek injunction over a land which he claims ownership and onto which the defendants were alleged to have entered. The case for the plaintiff is premised on the suggestion that the boundary of Dakolae Land is not what was stated in the map produced at the timber rights hearing.

The plaintiff, by his application, is in effect asking the Court to determine three issues. Firstly, that the plaintiff has rights over the land called Vavae Land; secondly, to ascertain the boundary of Vavae land onto which the defendants had allegedly trespassed; and thirdly, that a trespass had in fact occurred. Unlike that of the third defendant’s right over Dakolae Land, the Court does not possess any evidence of the rights of the plaintiff over the whole or any part of Vavae Land. As it was not a subject of timber rights application, the Area Council had not dealt with this land under the FRTU Act nor had the Chiefs or Local Court determined the extent of his rights over the land. If this Court were to deal with these matters in order to ascertain whether there was a trespass or not, it would amount to this Court assuming the jurisdiction which it did not have.

Mr. Watt argued that despite the provisions f s.231, Land and Titles Act and s.5J of FRTU Act, the High Court has jurisdiction to deal with question of ownership of customary land. I do not agree section. Counsel relied on s.77 of the Constitution. That section confers unlimited original jurisdiction to deal with civil proceedings. However, the Constitution also provides that there are jurisdiction and powers which the Court may exercise as conferred on it by Parliament. So that in so far as ownership of customary land is concerned, Parliament did not confer the power on this Court to deal with such matter, and created different mechanisms of dealing with that issue. It confers jurisdiction on Chiefs, Local Court and Customary Land Appeal Court and Area Council. This Court of course, retains its appellate powers and other review processes over such bodies. These powers are however restricted.

It remains to be the law that in the light of the decisions of the Court of Appeal and this Court, any question purported to deal with ownership or boundary of customary are matters not within the powers of this Court to deal with. As such, any claim for remedy which necessarily involves the ascertainment of such matters, cannot be dealt with unless the person seeking the remedy first have such matters dealt with by the appropriate bodies. Once he is armed with such determination or evidence thereof, he can then be in a position to invoke the jurisdiction of this Court. But until that is done, this Court cannot hear him as it has no jurisdiction to do so.

In the present case, the application by the plaintiff for restraining order against the first and second defendant cannot be heard. I rule that in the present circumstances, I have no power to deal with the plaintiffs application.

Costs to the defendants.

Rule accordingly.

(GJB Muria)
CHIEF JUSTICE