Keuni v Kia-Katova Area Council [2000] SBHC 88; HCSI-CC 382 of 1999 (7 April 2000)

CC 382/99 HC

IN THE HGIH COURT OF SOLOMON ISLANDS

Civil Case Number 382 of 1999

IRENE KEUNI & OTHERS

V

KIA/KATOVA AREA COUNCIL & OTHERS

High Court of Solomon Islands
(Palmer J)

Civil Case Number 382 of 1999

Hearing: 6th April 2000
Ruling: 7th April 2000

G. Suri for the Plaintiff
S. Manetoali for the first Defendant
P. Tegavota for the second Defendant
C. Ashley for the third Defendant

PALMER J.: There are two applications before this Court for determination. The first one is an application by the Third Defendants for the release of all royalties due in respect of logging operations on LR 671. The second application is made on behalf of the Second Defendant along the same lines for royalty at the rate of 10% to be released and paid into an interest bearing deposit account in the joint names of the Plaintiff and Third Defendant’s Solicitors pending trial, or that 15% inclusive of the net sale proceeds be paid into a joint Solicitors Trust Account. The Plaintiff naturally raises objection to the orders sought in those applications.

With respect the orders sought in both applications fail to take proper account of the judgment given by this Court on 26th January 2000. One of the live issues between the Plaintiff and the Third Defendants pointed out in that judgment, pertained to the question of correct representatives in custom of the Kokopi Clan. A related issue was that of distribution of royalties between them. At paragraph 19 of her affidavit filed 17th November 1999, Irene Keuni deposed that royalties had not been properly accounted for to the tribe by the Third Defendants. One of the orders sought in the Statement of Claim as amended will be to require the Third Defendants to account for all royalty payments received. It seems only proper and fair that any royalty payments received are restrained pending determination of those issues before this Court. I note it has not been shown that the Third Defendants had been and would be prejudiced by such order.

Reliance was placed on the case of Allan Kasa & Elma Kasa v. Rex Biku & Commissioner of Lands Civil Case 126 of 1999, judgment delivered on 14th January 2000, as supporting the Third Defendants application for royalties to be released. The assumption being that as persons duly identified as representing the Kokopi Clan by the Kia/Katova Area Council, this Court is obliged to order the release of those royalties to the rightful persons (in this case the Third Defendants). Unfortunately this overlooks the very thing which was highlighted by his Lordship Sir Muria C.J. in his judgment, that a trust must necessarily be implied in the case of representatives who had received money on behalf of the tribe for the benefit of the tribe. At page 9 first paragraph, his Lordship states:

“It must therefore follow, that the applicant/first defendant, as co-owners of the land with the other members of his tribe, received benefit for the use of the land. He cannot use that benefit for himself but must be used for the benefit of all those entitled to it, namely the members of the landowning tribe. He is in a fiduciary position where he is under obligation to account for all the money he received in that capacity. His position is therefore akin to that of a constructive trustee in which case the principles of such trusteeship can properly be applied in regulating the proceeds arising out of the use of the customary land in question.”

Further down the page his Lordship continued:

“The obligation not to profit from a position of trust together with the duty to account are, in my judgment, of vital importance to Solomon Islands in responding to the modern conditions under which customary land is being subjected to in our today’s money economy.”

Finally at page 10, his Lordship concluded:

‘‘Rather the Registrar was clearly concerned with the status of the first defendant as a representative who was acquiring benefit from the use of his tribe’s land and who, therefore, is under duty to account for all the benefit received in that capacity. In that regard the Registrar was right to regard him as a trustee who is in a fiduciary position and who is under obligation to account to his people for the money he had received from the Government.”

The case sought to be relied on by the Third Defendant with respect unfortunately couldn’t be more against him. Application of the Third Defendant should be dismissed.

As to the Second Defendant’s application I fail to see any basis for it. Paragraph 3 of the Orders of this Court couldn’t be any simpler. 15% of the sale proceeds must necessarily be read as the total proceeds of sale which would have been received for each shipment of logs harvested from the area of land owned by the Kokopi Clan. If net proceeds had been intended it would have been used. As to the question of royalty payments, that should at least be covered under the 15% of sale proceeds restrained by this Court. Application of the Second Defendant should also be dismissed.

ORDERS OF THE COURT:

1. DISMISS SUMMONS OF SECOND AND THIRD DEFENDANTS FILED ON 15TH MARCH AND 13TH MARCH 2000 RESPECTIVELY.

2. THE SECOND AND THIRD DEFENDANTS TO BEAR THE COSTS OF THE PLAINTIFF IN EQUAL SHARES.

ALBERT R. PALMER
THE COURT.