Hearing: 29th June 2001
Judgment: 4th July 2001
C.
Ashley for the Plaintiffs
Mrs.
M. Samuel for 1st Defendant
J.
Katahanas for 2nd Defendant
JUDGMENT
(Kabui,
J):
By Notice of Motion filed on 26th June 2001, the 1st
Defendant seeks the following –
1.
&&nsp;; Tspt tha requiremenrement for service be abridged.
2.
&nbssp; That 1st and 2nd Plaintiffs’ Action filed
herein be struck out for failing to disclose any reasonable cause of
ctionp;
3.
& p;&nssp; Isp; In the the alternative, that the Interim Order of this Court dated 7th
of June 2001 be discharged upon the grounds set forth in the Affidavit of
d Kitnd fin the 1the 19thth June 2001.
4.
&nbbsp;& &nsp; Csp; Costs for this applonation to bne by the Plaintiffs. nbsp;
5.
&&nsp; &bsp; &nbs; &nbss;&nbny further or such such orders that this Court deems fit to make.
The
Facts
The
Lupa Development Co. Limited (the 1st Plaintiff) and Golden
Harvest Co. Limited (the 2nd Plaintiff) are the Plaintiffs in
this case. They filed a Summons and a Statement of Claim against the 1st
and the 2nd Defendants on 6th June 2001. The
Defendants are Kongu Ngaloso Timber Co Limited and Omex Limited. On the
same day, the Plaintiffs also
filed an Ex parte Summons for ex parte
injunctive orders. I granted the Orders sought on 7th June
2001. The 1st Plaintiff holds a Logging Licence No. TIM 2/83
issued by the Government permitting it to fell and remove timber from its
Concession Area. By an Agreement signed on the 13th November
2000, the 2nd Plaintiff agreed to enter the 1st
Plaintiff’s Concession Area and to undertake logging operation therein
under the terms of that Agreements. The Concession
Area is one–third of
the area applied for by the 1st Plaintiff and granted by the
Marovo Area Council in 1995 leaving out two–thirds of the area. In the
meantime, the
1st Defendant was issued with Licence No. A1003
dated 10th October 2000 covering Kongu Ngaloso land stretching
from Tetekarovo point to Patusora Point. This Licence was issued by the
Government after the due completion of the timber rights acquisition
procedure stipulated in the provisions of the
Forest Resources and Timber
Utilization Act (Cap. 40). The Marovo Area Council made the determination
on 12th May 1998. This Area Council determination was appealed
by Mr Tutua on 16th June 1998 and later dismissed by the
Western Customary Land Appeal Court on 17th May 2000. There was
no appeal to the High Court. There appears to be another appeal by Mr.
Riringi of the Lupa tribe
which appears to have gone stale.
The
Plaintiffs’ Case
The
Plaintiffs' case is based upon the“BR1” attached to Bexter Robert’s
affidavit filed oled on 2nd May 2001 in Civil Case No. 21 of 1997.
This map shows the 1st Plaintiff’s Concession Area as being
from a place named Vao in the south to a line to the north which lies
south
of the Penjuku River. The western boundary lies to the west and the
eastern boundary lies east but west of Mt. Mariu. This
area within these
boundaries is the 1st Plaintiff’s Concession Area and being the
one – third allocated to it by the Marovo Area Council in 1995. Counsel
for the Plaintiffs, Mr. Ashley, argued that the terms of the exparte
order granted on 7th June 2001 were to preserve the rights of
the Plaintiff’s within the 1st Plaintiffs’ Concession Area as
understood by the Plaintiffs. He pointed out that affidavit evidence filed
by Mr.
Baxter Robert on 6th June 2001, confirmed that the Defendants
had felled 13 large trees south of the Penjuku River approximately ten
metres
from that river were within the 1st Plaintiff’s
Concession Area. <
The
Defendants' case is based upon the map attach Mr. Simeon’s affidavit
t
filed on 23rd May 2001 in Civil Case No. 21 of 2001. In his
affidavit he said the boundaries of Kongu Ngaloso land began at a place
named Patusora in the south – west and thence along a line stretching
eastwards towards Mt Mairu and thence along a
zigzag line west of Mt Mariu
northwards and thence northwards towards Tetekarovo. The map itself shows
Patusora to
Seko being shaded and an unshaded area between Seko to
Tetekarovo. What appears to be a similar map was attached to Mr. Kituru’s
affidavit filed on 19th June 2001. The map also shows a place
named Patusora to Seko being shaded and an unshaded area between Seko to
Tetekarovo.
The southern boundary of Kongu Ngaloso land begins at Patusora
and runs in an easterly direction just slightly towards Mt.
Mariu. Counsel
for the 1st Defendant, Mrs. Samuel argued that in the first
place, the Plaintiffs’ Statement of Claim did not disclose any cause of
action and should be struck out. Secondly, she argued that the facts did
show that Kongu Ngaloso land was excluded
from the 1st
Plaintiff’s Concession Area and so the Plaintiffs would have no case to
bring to Court. On that basis, she urged
me to discharge the ex parte order
dated 7th June 2001. Counsel for the 2nd Defendant,
Mr. Katahanas, said that he would leave the matter of indorsement of the
Writ of Summons in the Court’s
hands and would abide by the decision of
the Court on that issue. However, Mr. Katahanas urged upon me to consider
his argument that the Plaintiffs had not disclosed all the material
evidence at the ex parte hearing and the fact that
the 1st
Plaintiff provided no undertaking as to damages. On that basis, he said,
the same ex parte order should be discharged.
Mr. Katahanas also attacked
the terms of the ex parte order as being too wide and vague and could lead
to injustice.
He further argued that the Plaintiffs could only come to the
High Court for protective injunctions and cited Gandly Simbe v
East
Choiseul Area Council & Others
(Civil Appeal No. 8 of 1997). That is to say, no such application
had come to the Court invoking its protective jurisdiction nor was there
any evidence
showing intention to do so. He argued that the Plaintiffs
should not have come to court for such injunctive orders without
ownership
of land being sorted out first in the Local Court.
The
Court’s Finding
Forms
1, 2 and 3 preceding the granting of the Timber Licence to thpan>
1st
Plaintiff nor its Timber Licence No. TIM/2/83 were tendered in Court as
evidence. The documents would have shown the
areas by name intended to be
logged by the Applicant in the Form 1 application. Forms 2, 3 and the
Licence itself
would have also shown the same areas by name. Mr. Berry who
spoke at the Marovo Area Council timber rights hearing on 18th
October 1995 on behalf of the applicant said his Company wanted to log
1663 hectares of green forest. When questioned
further, Mr. Berry said the
total hectares would be 1663.3 of which 332.6 hectares would be logged
annually. Mr.
Kituru on behalf of the Kongu Ngaloso land then objected to
their land being included. He said that Kongu Ngaloso land commenced
from
Patusora in the south - west and stretched northwards inland to Mt Mariu
and hence northwards to Tetekarovo.
In the result, the Marovo Area Council
only accepted one - third of the area applied for in the Form 1
application.
One - third of 1663.3 hectares would have been approximately
552 hectares of land. That would have been the 1st Plaintiff’s
Concession
Area as determined by the Marovo Area Council on 18th October
1995. No boundaries have ever been stated in any document before this
Court other than Exhibit “BR1” attached
to Mr. Robert's affidavit filed on
6th June 2001 referred to above. In other words, no evidence
has been tendered to say, without Exhibit “BR1” above, that the
northern
boundary of the 1st Plaintiffs Concession Area is the Penjuku
River. Also, there is no evidence to say who drew up the boundaries in
Exhibit “BR1” and whether or not these boundaries were accepted by the
Kongu Ngaloso tribe whose representative objected
at the Marovo Area
Council hearing on 18th October 1995. That is to say, there is
no evidence to say that the one - third Concession Area accepted by the
Marovo
Area Council on 18th October 1995 is the one demarcated
by the boundaries drawn in Exhibit “BR1”. It is therefore difficult to
confirm
that the one - third Concession Area granted to the 1st
Plaintiff does correspond with the boundaries shown in Exhibit “BR1”. Had
the Kongu Ngaloso tribe agree to the boundaries
shown in “BR1”, they would
not be disputing them today.
One
thing is however clear in the evidence before the Court. At pagf the
Minutes of thof the Marovo Area Council hearing
on 18th October
1995, Mr. Kituru representing the Kongu Ngaloso tribe, clearly stated the
boundaries of Kongu Ngaloso land.
He said the boundaries commenced at
Patusora in the south - west and extending northwards to Mt Mariu and
thereafter
extending to Tetekarovo. Mr. Simeon in his affidavit file on 23rd
May 2001 in Civil Case No. 21 of 2001 also said that the boundary of Kong
Ngaloso land commenced from Tetekarovo
to Patusora although Civil Case No.
21 of 2001 was to do with Mr. Nano’s ownership of land between Patusora
and Seko
but being within Kongu Ngaloso land. In the Marovo Area Council
hearing on 12th May 1998 over the area between Patusora and
Seko, Mr.Riringi
at page 4 of the Minutes said that that area was within the 1st
Plaintiff’s Concession Area. As regards Seko to Penjuku, he held no
objection. He, however, pointed out that the
whole area from Patusora to
Penjuku was not totally clear of dispute if no mutual agreement was
reached. Indeed,
mutual agreement may have been reached for the Marovo
Area Council determination on 12th May 1998 still stands
although Mr. Simeon said in his affidavit that Mr. Riringi had appealed.
Apart from that statement,
there is no conclusive evidence on this point
in this court.
lass="Mso="MsoNormal" style="margin-left:-1.0cm">
In case of the 1st Defendant, its Licence No. A10003 (Exhibit
“AK1”)AK1”) clearly states that its licence would cover land from Tetekarovo
point to Patusora Point. The map attached (unmarked) to that affidavit
shows Patusora, Seko and Tetekarovo though
Mr. Riringi had said that
Patusora to Seko was within the 1st Plaintiff’s Concession
Area
The
Mistake
I
think there was a mistake of fact in this case. This mistake arose in
way. The one - thir third Concession Area
allocated to the 1st
Plaintiff by the Marovo Area Council in 1995 did not include Kongu Ngaloso
land deliberately excluded by the Marovo
Area Council. The excluded area
runs from Patusora in the south – west and stretching north - west inland
towards
Mt Mariu and thence northwards to Tetekarovo. The phrase “north –
west” should really be “northeast”. There must have been
a typing error.
The southern boundary of Kongu Ngaloso land is the line that runs from
Patusora eastwards towards
Mt Mariu and the same is the northern boundary
of the 1st Plaintiff’s one – third Concession Area. This ought
to be the position following the Marovo Area Council determination on
18th
October 1995. The fact however is that according to Exhibit “BR1”, the
northern boundary of the 1st Plaintiff’s Concession Area is the
Penjuku River which is well beyond Patusora in the north. This Penjuku
River as
the northern boundary of the 1st Plaintiff’s Concession Area is
wrong because it does not correspond with the boundaries
of Kongu Ngaloso
land given at the Marovo Area Council hearing on 18th October
1995 and were accepted by the Area Council to be excluded from the 1st
Plaintiff’s Concession Area. Civil Case No. 21 of 1997 arose because of
this mistake. Mr. Riringi being a member
of the Lupa tribe has land
interests in and around Guave Point and generally in the area between
Patusora and Seko.
Mr. Riringi’s land interest in and around Guave Point
arises from the land case between himself and Simeon Nano in the Marovo
Local Court in 1982 and later in the Western Customary Land Appeal Court.
Mr. Riringi won in both decisions. However,
his land interest is not
extensive as Simeon Nano of the Kongu Ngaloso tribe had disputed Mr.
Riringi’s boundaries.
This dispute became the dispute in Civil Case No. 21
of 1997. Mr. Riringi’s interest again came to the fore at the timber
rights hearing conducted by the Marovo Area Council on 12th May
1998. Mr. Riringi did not succeed but reserved his right to dispute the
Marovo Area Council’s determination.
Although Mr. Kituru in his affidavit
filed on 19th June 2001, said Mr. Riringi had appealed to the
Western Customary Land Appeal Court, there is no evidence to prove that
fact, as I have said.
The
True Boundaries
Clearly, the
1stup>st
Plaintiff’s Concession Area begins at Vao in the south and stops at
Patusora to the north. Its Licence TIM2/83 must
necessarily cover that
area only being the one - third Concession Area granted by the Marovo Area
Council on 18th October 1995. Members of the Lupa tribe must be
assumed to be the owners of the land between Vao and Patusora, as against
the members of the Kongu Ngaloso tribe subject to any exceptions that may
arise. Likewise, members of the Kongu Ngaloso
tribe are assumed to be the
owners of the land between Patusora to Tetekarovo through Seko also
subject to any exceptions
that may arise. In customary land tenure
system, individuals may own
one or more areas of land within land
owned by another tribe for reasons recognised and accepted in custom. I
say ownership is assumed because
in both cases, the determination of the
persons lawfully entitled to grant timber rights was done under the
provisions
of the Forest Resources Timber Utilization Act (Cap. 40) by the
Marovo Area Council not being a Court
(See Gandly Simbe v East
Choisuel Area Council, Eagon Resources Development Company Limited, Steven
Taki and Peter Madada
Civil Appeal No. 8 1997 at 6)
In the case of the 1st Plaintiff, there is no evidence of an
appeal to the
Western Customary Land Appeal Court. In the case of the 1st
Defendant, there is hearsay evidence of an appeal but no documentary
evidence of that appeal itself. What then is
the position regarding
ownership of land? One position is that since there is no appeal to the
Western Customary
Land Appeal Court, ownership of land remains
undetermined. The other position is that upon the expiry of the statutory
one month period, land ownership, vests automatically in the persons
lawfully entitled to grant timber rights as set
out in Forms 2 and 3.
Gandly Simbe’s case on appeal cited above appears to favour the first
position. Its practical effect in this case is that if either the
Lupa
tribe or Kongu Ngaloso tribe should wish to find out which of them owns
Lupa land or Kongu Ngaloso land as the
case may be, it has to invoke the
jurisdiction of the Chiefs first and then the Local Court and the
Customary Land
Appeal Court whichever is the case. A situation may arise
where for example, a palm oil project is being proposed for the
logged
areas and the foreign investor and the Government or the Provincial
Government wishes to find out who the
landowners are for the purposes of
negotiation and rental payment. In custom, the tribe that owns the land
also owns
the trees standing on that land. On that basis, the Area Council
determination can be taken as evidence of ownership in any
hearing before
the Chiefs or before the Local Court etc. The protective jurisdiction of
the High Court may well be
invoked also if the need arises. The effect of
the second position is that if there is no appeal within the statutory one
month period, then the assumption is that the persons who are lawfully
entitled to grant timber rights and whose
names are set out in Forms 2 and
3 are the landowners on behalf of their tribe.
This
cannot be the case because ownership in customary land cannot be
determined by defaulting in the appeal procedure
in section 10 of the
Forest Resources and Timber Utilization Act. In my view, I would prefer
the first position it
is in line with the Gandly Simbe's case on
appeal cited above. The question of ownership does not arise where there
is an appeal to the Customary Land
Appeal Court because that Court would
determine final ownership of land.
In
logging related cases, action for trespass is usually brought agains
logging operator btor by persons who believe
their land is not included in the
operator’s licence or vice versa where the logging operator sues for
trespass against
persons who often enter the logging camp and commit
unlawful act against the operator. Such cases usually arise from claims
by
third parties who are not parties to the timber rights agreement or
objectors at the timber rights hearing. In
such cases, injunctions may be
granted but if the issue to be tried is ownership of customary land, the
High Court
would have no jurisdiction to determine ownership. (See
Allardyce Lumber Company Limited v Nelson Anjo
(Civil Appeal No. 8/1996)
affirmed in Gandly Simbe’s case on appeal above. There is however
the possibility that pending the determination by the Local Court, if
ownership
is in issue, the High Court may, depending upon the
circumstances, grant an interlocutory injunction restraining entry on,
felling and removing of timber from the land being under dispute (See
Gandly Simbe’s case on appeal above at page 23). Whilst the result of
taking such a step by the High Court may appear to be harsh upon a
logging
operator, such a step can be taken if the circumstances of the case do
warrant it to be taken.
class="Mso="MsoNormal" style="margin-left:-1.0cm">
class="Mso="MsoNormal" style="margin-left:-1.0cm">
Th effect of my finding is that the 1st Plaintiff’s Concession
Area doea does not cover the areas of land north of Patusora to Seko and beyond
to Tetekarovo.
It therefore follows that the 1st Plaintiffs’
Licence No. TIM2/83 does not cover those areas of land also. The 1st
Plaintiff clearly has no cause of action. The 2nd Plaintiff
must therefore suffer the same fate in term of relying upon Licence
TIM2/83 as being a valid Licence for
the areas of land within Kongu
Ngaloso land. If there is no cause of action, there can be no basis for an
interim
injunction orders as were made on 7th June 2001. My
finding clearly shows that the Statement of Claim filed by the Plaintiffs
on 6th June 2001 has no basis in fact and in law and therefore
falls. For this reason, I need not now consider and decide the various
arguments advanced by Counsel for the 2nd Defendant, Mr.
Katahanas. The arguments advanced by Counsel for the 1st
Defendant, Mrs. Samuel were sufficient to enable me to decide this case.
The 1st Defendant’s application is granted. In the result, I
order that –
[1]
the requirement for service be abridged.
[2] &nnbsp; the
PlainPlaintiffs’ action be struck out for disclosing
;&nbssp;&nnbsp;&bsp;&nsp;&nsp; no
reasonable
cause of action.
[3]
the
interim
order dated 7th June 2001 be discharged
&nnbsp;; &nsp; &nsp; and.
classNormayle="mae="margin-rgin-left:left: -1.0cm; margin-top: 1; margin-bottom: 1">
[4]
costs be paid by the Plaintiffs. I order
that-
te>
