Kongungaloso Timber Co Ltd v Andrew [2000] SBHC 59; HC-CC 277 of 2000 (21 December 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 277 of 2000

KONGU NGALOSO TIMBER CO. LIMITED AND OTHER

v

VAEKESA ANDREW AND OTHERS

High Court of Solomon Islands
(Kabui, J)

Date of Hearing: 20th December, 2000
Date of Ruling: 21st December, 2000

Mr A. Nori for the Plaintiff
Defendants not present

RULING

(KABUI, J): This is an ex parte application by the Plaintiff filed on 18^th December 2000, seeking the following orders against the Defendants –

1. An interim injunction restraining the Defendants, their tribal members of Lupa tribe, relatives, associates and agents from entering the First Plaintiff’s Concession area until trial or further orders;
   
2. A punitive clause be attached to the order for interim injunction; and
   
3. Costs to be in the cause.
   

This application is said to be urgent and for that reason the Defendants had not been served with the copy of the Ex parte Summons. The Writ of Summons however had been served on the Defendants. I noticed however that the Writ of Summons and the Ex parte Summons were filed on the same day, 18^th December 2000, and at the same time being 10:30 am in the morning. I do not know why the Writ of Summons was served and not the Ex parte Summons. If it was an oversight, it was not explained in Court. However, Mr. Nori, Counsel for the Plaintiff, was obviously prepared to mitigate by saying that if the Court should grant an interim injunction in favour of the Plaintiff, it should only be for 28 days after which the inter partes hearing must take place. I am not very sure why this application is being treated as urgent but having heard Mr. Nori, Counsel for the Plaintiff, I take it that it is urgent because of the likelihood of the Defendants repeating their unlawful conduct at any time and there is nothing to prevent them doing so. For this reason, I decided not to adjourn the hearing in order for the Plaintiff to serve the Defendants with the Ex parte Summons. But I must say it again that it is good practice and a fair one at that for the Plaintiff to serve the Defendant with notice of such hearing. It is the rule rather than being the exception. There is a tendency in this jurisdiction for some lawyers to disregard this rule for personal convenience.

The Brief Facts

The 1^st Plaintiff is Kongu Ngaloso Timber Company Limited. It holds a Timber Rights Licence No. A10003, issued on 9^th October 2000 by the Government under the provisions of the Forest Resources and Timber Utilization Act (Cap. 40). The 2^nd Plaintiff is Omex Limited, the contractor under an agreement signed on 26^th January 2000 with the 1^st Plaintiff. The 1^st Plaintiff’s licence covers an area of land on Gatokae island commencing from Tetekaro to Patusora being Exhibit "EKG2” in Mr. Ghemu’s affidavit filed on 18^th December 2000. The log pond and the logging camp are located at a place called Seko on the eastern side of the land covered by the 1^st Plaintiff’s Licence. On 7^th November 2000, the Defendants entered the logging camp and threatened the employees and staff of the 2^nd Plaintiff. Guns were used. In the course of their unlawful conduct, the Defendants did remove fuel and a radio. The Defendants are members of the Lupa tribe residing on Gatokae island who oppose logging operation by the 2^nd Plaintiff.

The Law of Trespass on Customary Land

In Nathan Kere v Paul Karana (Civil Case No. 258/2000), at page 3, I said,

“In this jurisdiction, trespass actions with regards to land both registered and customary land are often treated and accepted as “run of the mill” stuff. That is, trespass to land including customary land is a wrong against possession and not title though title can be a ground for an action for trespass also. This is an interesting point of law in terms of trespass to customary land.”

After discussing the different categories of cases in which trespass is claimed, I said at pages 3 - 4,

“But in these cases the ground for the action for trespass must necessarily be the title or ownership of customary land though possession is obviously subsumed by the existence of title or ownership. This is the difference between action for trespass under the common law and for trespass against customary land. The common law places emphasis upon “possession” whilst customary law places emphasis upon “title” or “ownership”. Whilst the common law places emphasis upon “possession” as the basis for an action for trespass, customary law attributes no significance at all to it in terms of title or ownership apart from it being the hallmark of title or ownership where it is not transitory in nature. This is a fundamental difference. Trespass in customary law is a wrong against title or ownership. That is what matters for possession can at times be transitory. Title or ownership can never be. Either there is title or ownership or nothing. Possession is not the hallmark of conclusive title or ownership although it can be to confirm title or ownership. It only has evential value. There is no such thing as ownership without possession in customary law, although there can be cases of possession without ownership where persons without any “blood connection” may occupy customary land which they do not own in custom for some reason. They can either be licensees, refugees or distant relatives such as in-laws etc. However, such persons normally cannot sue for trespass against strangers under the rules of the English common law as they are not owners of the land unless the action for trespass is mounted through the owner of that land in custom.”

In concluding on this point, I said at page 4,

“This is the point in this discussion. The basis of trespass in the English common law is understandable because in England, the Crown is the overall landlord. Those who hold land interests lesser than that of the Crown are tenants only. As tenants, they are in lawful possession of their land and can sue for trespass to protect their interest in that land. Not so in Solomon Islands where the tribe or clan owns the land and everyone else is a stranger at large who is not a member of the tribe or clan. One may wonder why this is so in Solomon Islands or for that matter in Melanesia. The reason, I venture to say, is that in our societies in the past and even now do not have the concept of landlord and tenant because there is no reason to do so. Those who till the land are entitled to do so through their “blood connection” with the land. Outsiders were few in numbers and even so, outsiders do not pay rent even if they are allowed to till the land for food, for anyone who lives in a place anywhere is entitled to feed himself and his family from the land accordingly to his ability. Possession alone has never been the basis for land claims. Possession is only the hallmark of ownership until ownership is dislodged or confirmed by the Chiefs or a Court of law.”

This Case

The triable issue in this case is obviously the ownership of Kongungaloso Land on Gatokae island although the Forest Resources Timber Utilization Act would say otherwise as confirmed by Gandly Simbe v East Choiseul Council, Eagon Resources Development Company Limited, Steven Taki and Peter Madada (Civil Appeal No. 8/97). At page 6 of their judgment, the Court of Appeal said

“It remains true to say that, in making a determination for the limited purposes of s.5C(3), it is no part of the function of an area council to decide questions of ownership of customary land in a way that is either binding or final in effect. It is one of the features of the statutory procedure under Part IIA that an area council is a tribunal, and not a court of record, or indeed a court of any kind whether of customary or common law. It has long been recognised that its determination gives rise to no guarantee that the contracting customary owners are the true owners. See Hyundai v. A-G (1993) HC-CC 79/93, at pp. 8-10 (72-74), citing with approval the remarks in the High Court of Commissioner Crome in Fugui v Solmac Construction Co. Ltd. (1982) SILR 100, 107. If a binding determination is desired it must be obtained from a local court under s.8 of the Local Courts Act as amended by the Local Courts (Amendment) Act 1985 inserting s.8C, 8D and 8F; or on an appeal, instituted under s. 5E(1) of the Forest Resources Timber and Utilisation Act by a person who is aggrieved by a determination of the area council under s.5C(3)(b) of that Act, to a customary land appeal court having jurisdiction for the area in which the customary land is situated. In contrast to an area council determination, the order or decision of a customary land appeal court on an appeal pursuant to s.%E(1) is “final and conclusive” see s.5E(2). Such an order or decision has been said to create an estoppel by judgment as between the parties: Beti v Allardyce Lumber Co. Ltd. (1992) CAC 5/92, at p.9; and, since by s.5E(2) it is “not (to) be questioned in any proceedings whatsoever”, an order or decision of that kind has been held to be immune from review by certiorari in the High Court: Talasasa v Biku (1988) CAC 2/1987, at p 8-10.”

The effect of what the Court of Appeal is saying here is that the determination by an Area Council does not decide the question of ownership of customary land. The Area Council only has the duty of identifying those persons who are entitled to grant timber rights and whether they represent all the persons lawfully able to do so. It is only a tribunal and not a Court of law which can make binding decisions for the parties before it. A binding decision can only be obtained under the provisions of the Local Courts Act or though an appeal to the Customary Land Appeal Court in pursuance of section 5E(1) (as it then was) of the Forest Resources and Timber Utilization Act. In this case, it is assumed that the Defendants had not appealed to the Customary Land Appeal Court under section 10(1) of the Forest Resources Timber Utilization Act. It is also not known whether or not they were the dissenting voices or absentees during the Area Council hearing. The Defendants may well be any of these persons. No one knows. The ownership of Kongungaloso Land has not been, it seems, conclusively decided either by the Chiefs, the Local Court or the Customary Land Appeal Court. There is no evidence before me on this point. That is to say, if it has been decided, there is no evidence of that decision before me. Clearly, the High Court has no jurisdiction to decide the ownership of customary land. This is now well known in this jurisdiction. In the case of the 2^nd Plaintiff, the position is different in that its right to occupy the Kongungaloso Land is by Licence issued by the Government with the agreement of the 1^st Plaintiff. The status of a Licence was stated by Commissioner Crome in Fugui and Another v Solmac Construction Company Limited & Others (Civil Cases Nos. 44 & 45/82) at pages 106-107 in these terms

“All a licence amounts to, it seems, is a defence to a prosecution under S. 4(1) and the possibility that the true customary owners of timber rights and any persons by whose consent the exploitation of those rights can be sold or dealt in, have been traced as a result of the lengthy procedures under the Act. No guarantee is given that the contracting customary owners are the true owners.”

The second triable issue is therefore whether or not the Timber Rights Agreement under which the 2^nd Plaintiff entered into Kongungaloso Land is valid. The Defendants’ unlawful conduct could well be trespass if the Timber Rights Agreement was valid for clearly the 2^nd Plaintiff is in possession of Kongungaloso Land under a licence from the Government with the agreement of the 1^st Plaintiff. The next question is in whose favour does the balance of convenience lie in this case. The 1^st Plaintiff as well the 2^nd Plaintiff are bound to suffer much damage or loss in terms of the suspension of logging operation thus causing delay in reaping the benefits of the Timber Rights Agreement signed between the 1s^t Plaintiff and the 2^nd Plaintiff. The 1^st Plaintiff and the 2^nd Plaintiff through Mr. Nori, their Counsel, have undertaken to meet any damages the Defendants may incur as a result of granting an interim injunction in its favour. On balance, the 1^st Plaintiff and the 2^nd Plaintiff would stand to lose more money if I refuse an interim injunction in favour of the Defendants. On this basis, I would grant an interim injunction in the terms asked for in the Ex parte Summons. The interim injunction order will remain in force for 28 days after which the inter partes hearing must take place. There will be costs in the cause.

F.O. Kabui
Judge