Kolly v Bako [2002] SBHC 123; HC-CC 287 of 2002 (27 December 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 287 of 2002

DERECK KOLLY & JAMES MANEFORU (REPRESENTING THE DESCENDANTS OF ELIZABETH MOU IN THE POSAMOGO TRIBE) & MARTIN KODO

V.

BEN BAKO, JACOB MERIDI & FRANCIS SESI (TRADING AS BUGOTU LUMBER COMPANY) & SUCCESS COMPANY LIMITED

High Court of Solomon Islands
(Palmer J.)

Hearing: 24th December 2002
Judgment: 27th December 2002

No appearance for the Plaintiffs
G. Suri for the Defendants

Palmer J. The first and second Plaintiffs filed Writ and Statement of Claim in this action on 20^th November 2002. They claim interests as customary owners over Kasera land, Garanga land and Tagathaga land. The first Plaintiffs, Dereck Kolly (“Kolly”) and James Maneforu claim interest in custom on behalf of the descendants of Elizabeth Mou of the Posamogo tribe over Kasera land and Garanga land. The second Plaintiff claims ownership rights over Tagathaga land.

Both plaintiffs claim that the second Defendant had wrongfully entered into Tagathaga land, Garanga land and part of Kasera land. They also say that trees had been extracted from their lands and environmental damage caused. They say no permission had been granted to either defendants to enter, fell and extract logs or to construct roads on their customary lands. The crucial issue raised in the Statement of Claim of the Plaintiffs is that of ownership in custom of over those three land areas.

They claim inter alia, permanent injunctions against the Defendants, an account of all logs felled in those customary lands, an order for the proceeds of sale of logs to be paid to the plaintiffs, damages for trespass and conversion and interests.

On the same date, 20^th November 2002, the Plaintiffs filed an ex parte summons inter alia for interim restraining orders against the first and second defendants. This was heard and granted on the same day resulting in the operations of the first and second defendants to be suspended pending the inter partes hearing. The matter was adjourned for twenty one days for the inter partes hearing to be convened. This was fixed for 24^th December 2002 at 9.30 a.m. Unfortunately, the plaintiffs nor their counsels appeared in court. The matter was thus heard in their absence. I then reserved judgment.

The plaintiffs have filed three affidavits in support of their application for interim orders; two by Dereck Kolly filed on 20^th November 2002 and 23^rd December 2002 and that of Martin Kodo filed 20^th November 2002.

The claim of the first Plaintiffs

1. Kasera Land. The first plaintiffs’ claim interest over Kasera land as customary owners. They rely on a decision of the Gao Council of Chiefs dated 31^st October 1995 between two parties, Nelson Silingi of Thogokama clan of the one part and Robert Paoni and James Maneforu of the Posamogo tribe of the other part. The land in dispute was described as the Taporo, Kasera to Beaboto land. Kolly has filed a sketch map marked as exhibit “DK 1” attached to his affidavit filed on 20^th November 2002, which attempt to show the boundary of this land. Unfortunately, it has not been sufficiently marked so as to identify its area or boundary on the sketch map. No legend either has been provided which would assist in identifying roughly the area of Kasera land claimed by the Plaintiffs.

In the second affidavit of Dereck Kolly filed 23^rd December 2002, he claims at paragragh 2 of his affidavit that “Kasera land is inside the licensed area and part of it is included in the Log Plan”. He denies as correct the area-shaded red by Francis Sesi in “exhibit FS 1” attached to his affidavit filed 13^th December 2002. Unfortunately his second affidavit does not take the description of Kasera land further.

In contrast, Francis Sesi (“Sesi”) one of the first defendants denies that Kasera land is within the concession area (see Exhibit “FS1” annexed to the first affidavit of Francis Sesi filed 13^th December 2002 – Kasera land is shaded red).

The first point to note about the claims of the first plaintiffs over Kasera land is that despite claiming that it is within the concession area, they have failed to mark clearly on their sketch map the boundaries of Kasera land which they rely on. All they have done is to say that it is within the concession area but have failed to mark this out clearly on the sketch map relied on by the Defendants (see Exhibit “FS1”). Parties who make claims over their lands should mark clearly on them the boundaries of their land that they rely on. They cannot assume that the court knows what they are talking about by simply mentioning names of their customary land and boundaries. I have always found it very helpful if parties take the time to mark out clearly on a sketch map the boundaries of their respective lands and to superimpose what they know of the boundaries of the other party.

Secondly, whilst the first plaintiffs do have a decision of the Gao Council of Chiefs in their favour, the boundaries of the land in dispute has not been delineated on the sketch maps so as to assist me in the decision making process.

Thirdly, there is no evidence to show that the other party (Nelson Silingi) in that case, was of the same line or tribe as the first defendants in this case and therefore are bound by that decision. In other words, there is no evidence to suggest that a land dispute has been reported under the Local Courts Act (Cap. 19) as between the first plaintiffs and the first defendants. The first plaintiffs have failed to prove that there is a binding decision in their favour.

Whilst this court recognizes there may be a dispute over the boundaries of Kasera land in custom, this court does not have jurisdiction to determine such dispute (see section 254 of the Land and Titles Act [Cap. 133] as recognized in Gandly Simbe v. East Choiseul Area Council & Others Civil Appeal Case No. 8 of 1997).

The only power which this court has and which I believe the first plaintiffs is relying on is the power to impose injunctions for the purpose of assisting the local courts and customary land appeal courts in settling such disputes. For that power to be activated however on the basis of customary ownership there must at least be an arguably sufficient interest shown which would entitle the first plaintiffs to impugn the timber rights agreement.

With respect, the first plaintiffs have failed to show that they do have an arguable sufficient interest over Kasera land. There is no evidence to suggest that the process under the Local Courts Act has even been commenced. They do not have any binding court decision as against the first defendants. To that extent, this court has no jurisdiction and is unable to exercise its power to grant injunctions for the purpose of aiding the local courts and the customary land appeal courts in settling such disputes. The first plaintiffs have failed to establish that there is a triable issue before this court which would enliven the powers of the court to consider granting relief by way of injunctions pending the determination of the issues of land ownership before the local court and customary land appeal courts. The interim injunction imposed therefore over Kasera land should be discharged.

2. Garanga Land. The first plaintiffs also claim to have an interest over Garanga land as customary landowners. They rely on a letter dated 5^th November 1997 in which they claim that the process under the Local Courts Act had been commenced. They say that at least two custom chief hearings had been convened but that the first defendants had not turned up to attend to the hearings. The area of Garanga land claimed by them is shaded blue in Exhibit “DK1” of the first affidavit of Dereck Kolly filed 20^th November 2002.

In contrast, Sesi denies the ownership rights of the first plaintiffs. He also deposes in his affidavit filed 13^th December 2002 that the true boundary of Garanga land is that shaded yellow in Exhibit “FS1” annexed to his affidavit as opposed to the area claimed by Kolly in Exhibit “DK1”.

There is some suggestion in the letter dated 5^th November 1997 annexed as “DK3” that a custom dispute may have been commenced before the Tatolui Magotu House of Chiefs by the first plaintiffs and that a decision in their favour had been given. It is however now some five years later and yet to date the first plaintiffs have produced no decision in their favour. I note the first plaintiffs have said they will produce a copy of that decision. Onus is on them to do so before this hearing. They have not done so. In the face of the denials of Sesi of any such hearings and decision, I cannot be satisfied at this point of time that there is a decision in their favour as against the first defendants over Garanga land. This meant the first plaintiffs have failed to establish on the balance of probability that they have an arguably sufficient interest.

I repeat this court does not have jurisdiction to deal with customary land disputes. Unless it can be shown to my satisfaction on the balance of probability that a binding decision in favour of the plaintiffs as against the first defendants exists, this court cannot invoke its inherent jurisdiction to grant injunctions as an aid to the local courts and customary land appeal courts in the process of settlement of customary land disputes.

The first Plaintiffs have again failed to establish that there is a triable issue for determination before this court. I am also satisfied the interim orders raised should be discharged forthwith.

3. Tagathaga land. The second plaintiff relies on a decision of the Maringe House of Chiefs dated 10^th February 1999 (Exhibit “MK1” annexed to the affidavit of Martin Kodo field 20^th November 2002) in his favour as against the first defendants. The dispute was between Reubens Family v. Martin Kodo and Mathias Kokili Tano. Reubens claim was based on the ownership claims of Francis Sesi and Kikolo Thavinago over Tagathaga land. Reuben claimed to have purchased the land for $10,486 from Sesi in 1991.

Martin Kodo’s claim on the other hand was based on a purchase he made from a woman named Rachel Rasi in 1957. The Maringe House of Chiefs held that the earlier purchase was valid as opposed to the latter purchase. They also said in their decision that the true landowner was Rachel Rasi and not Sesi.

In contrast Sesi claims that the boundaries of Tagathaga land is much smaller than that claimed by Kolly. He says the area is that shaded purple in Exhibit “FS1”. He also points out that there is no binding decision as against him. Further he submits that there is a binding decision of the Gao Bugotu Local Court in his favour as against Rachel Rasi over Garanga land(?). It is not clear to me the relevance of that case and on what ground he seeks to rely on it as both lands are quite separate and different.

On the evidence before me, I am satisfied there is a chiefs decision over Tagathaga land and which directly affects the claims of ownership of the first defendants. If the parties are unhappy about that decision then an appeal should be made to the Isabel Local Court. I am satisfied the second plaintiff has shown that he has an arguable sufficient interest as a customary landowner over Tagathaga land and which would entitle him to challenge the validity of the timber rights agreement of the Defendants and thereby the rights granted therewith to enter and fell timber in Tagathaga land.

I note there is no direct challenge to the validity of the timber rights agreement of the Defendants though as observed by learned Counsel Mr. Suri for the Defendants, there is an indirect challenge through the claims for trespass and conversion. In order to succeed for any claims of trespass and conversion the validity of the timber rights agreement would firstly have to be impugned.

Triable issue

I am satisfied that by showing that he has an arguably sufficient interest as a customary landowner over Tagathaga land, the second plaintiff has established that there is a triable issue regarding his claims for trespass and conversion. If he succeeds at the end of the day in the land courts, the timber rights agreement of the defendants will collapse and with it any rights associated with entry and the right to fell and remove trees acquired under the timber rights agreement.

Whether damages adequate?

If the second plaintiff wins his case at the end of the day and no injunction is imposed will damages be adequate? I think the answer is obvious. Not only will the rights of the second plaintiff to harvest his trees have been destroyed but also it is obvious that any environmental damage caused will be irreparable.

On the other hand, it is also obvious that the second plaintiff will not be able to meet the cost of any damages of the defendants should the first defendants win their land case against the second plaintiffs.

On the issue of the balance of convenience it is my respectful view that the proper course of action to take at this point of time is to preserve the status quo.

As to the question of strength of the claims of the parties in custom, a decision in his favour in the chiefs does tip the scale on his side for the imposition of an injunction.

In the circumstances, I am satisfied the orders imposed by this court on 6^th December 2002 should be varied by having only the orders that are applicable to Kasera land and Garanga land discharged forthwith. The restraining orders over Tagathaga land should continue until further orders of this court.

ORDERS OF THE COURT:

1. Order that the orders of this Court issued on 6^th December 2002 be varied by having the restraining orders imposed in respect of Kasera land and Garanga land discharged forthwith.
   
2. Order that the restraining orders over Tagathaga land to continue until further orders of this court.
   
3. The Plaintiffs are to have their costs against the Defendants.
   

The Court.