Kongungaloso Development Company Ltd v Lupa Development Company Ltd [2003] SBHC 80; HC-CC 301 of 2003 (28 November 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 301 of 2003

KONGUNGALOSO DEVELOPMENT COMPANY LIMITED
AND ROTATE ENTERPRISES

-V-

LUPA DEVELOPMENT COMPANY LIMITED,
SAMLINSAM COMPANY LIMITED
AND ANDREW VAEKESA Anors (representing the Lupa tribe)

Honiara: Brown PJ

Date of Hearing: 28^th November 2003
Date of Judgment: 28^th November 2003

REASONS FOR DECISION

Ex parte Summons for Injunction

This application is one seeking on an exparte basis, injunctive orders stopping the various defendants from logging or any associated works on land between “Tetekarovo Point to Patusora Point”, Gatokae Island, Western Province. As well the plaintiff wants machinery of the 1^st or 2^nd defendants on the plaintiffs logging concession land removed and lastly, that logs felled on such land by the 1^st and 2^nd defendants not be sold until further order.

The Statement of Claim - recitals

This ex-parte summons arises out of the plaintiffs statement of claim which recites the 1^st plaintiff’s logging licence A10003 dated 9 October 2000 to “cut, fell and take away timber from Kongungaloso land, Gatokae Island, Marovo Lagoon, Western Province. The Kongungaloso land is from Tetekarovo Point to Patusora Point and is the area coloured green on the attached map”.

The 2^nd plaintiff is the 1^st plaintiff’s logging contractor.

The 1^st defendant is a local company claiming to have rights to carry out logging within land claimed by the plaintiffs as within their licence area. The 2^nd defendant is the 1^st defendant’s foreign contract logger and the 3^rd defendants are members of and representative the Lupa Tribe (Lupa), residing at Penjuku Village, Gatokae Island.

Lupa are collectively supporting the 1^st and 2^nd defendants in their attempt to log and carry away timber from the 1^st plaintiffs’ licence area. By letter dated 24 October 2003, the Commissioner of Forest Resources approved the 1^st plaintiffs logging plan and by further letter dated 27 October 2003, the Commissioner authorized the plaintiff to land its machinery within its concession area to clear its log pond and camp sites.

On about 12 November, Lupa came onto the plaintiffs felling area on block 6 near their logging camp at Penjuku and stopped work of the plaintiffs by physical threats of violence. Again on the 14 November, Lupa stopped the plaintiffs work by threat while armed and on the 18 November the threats were repeated by Lupa, although those on the plaintiff’s concession area were not armed on this 3^rd occasion.

The Statement of Claim - pleadings

On the 18 October, without consent of the Kongungaloso landowners, the 1^st and 2^nd defendants trespassed onto the plaintiff’s concession by landing logging machinery at Gusala and started felling and extracting logs. Because of the defendants interference and threats, the plaintiffs have been unable to log.

The plaintiff pleads that the defendant does not have any logging licence covering any land from Tetekaroo Point to Patusora. Further, any engagement of the logging contractor, the 2^nd defendant by the 1^st defendant has not been approved by the Foreign Investment Board, consequently the 2^nd defendants landing of machinery at Gusala is illegal.

Pleadings also allege that the 1^st defendant is in breach of a restraining order issued by this court in CC21/97 and has by its breach committed a contempt.

Evidence in support

The affidavit of Jerry Tekopo a chief of Kongungaloso tribe and a director of the 1^st plaintiff was read for the plaintiffs. He annexed a copy of the felling licence for land as described in the statement of claim.

The map forming part of the affidavit (KL2) appears to be a photocopy of part of a map of the area showing contour lines, the seashore, some place and river names and a dark dotted line running (in a dog leg via the slopes of Mr. Mariu) from the words “Patusor” to Tetekarovo” handwritten, on the sea coast line. There has been no attempt to identify the map as that map referred to “as coloured green” on the map attached to the felling licence of the Kongungaloso Timber Company Limited (KTCL). This company is referred to in the affidavit of Jerry Tekopo as “a local private company set up by the Kongungaloso landowners for the purpose of acquiring our own logging licence and land called Kongangaloso”.

This company, KTCL is not a party to these proceedings, and I am not prepared to make presumptions that KTCL is a wholly owned subsidiary of Kongangaloso Development Company Limited (the 1^st plaintiff). It may be that both companies’ interests are joint, but that is not pleaded.

Mr. Tegavota pointed to the unreported decision of my brother Judge Kabui PJ in CC110/2001 as evidence of a re judicata in relation to this land and these parties, for in those proceedings Lupa Development Co. Ltd sued KTCL for, I take it, trespass to felling licence area, on concession area about Vao on Gatokae Island. His Honour heard conflicting evidence of the boundaries of the Vao concession for the defendant in that case (KTCL) cross summoned to allege that the plaintiff was trespassing on its concession area, Kongungaloso land. In the judgment Kabui PJ said at 4.

No boundaries have ever been stated in any document before this court other than exhibit “BR1” attached to Mr. Robert’s affidavit filed on 6 June 2001 referred to above. In other words, no evidence has been tendered to say without exhibit “BR1” that the northern boundary of the 1^st plaintiff’s concession area (Lupa Development Co. Ltd) 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 Kongungaloso tribe whose representatives objected at the Marovo Area Council hearing on 18^th 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 18^th 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 1^st plaintiff does correspond with the boundaries shown in exhibit “BR1”. Had the Kongungaloso tribe agreed to the boundaries shown in “BR1”, they would not be disputing them today.”

So the defendants’ concession may be contiguous with KTCL’s concession, but where does the border abut?

At 9 of his decision, Kabui, J stated that the effect of his finding was that Lupa Development Company Limited’s concession area “does not cover the areas of land north of Patusora to Seko and beyond to Tetekarovo.” At 7 of his findings he says –

“Clearly the 1^st plaintiffs (LDCL) concession area begins at Vao in South and stops at Patusora to the north. Its licence TIM 2/83 must necessarily cover that area only being the one-third concession area granted by the Marovo Area Council on the 18^th October 1995.”

Now on a perusal of the map referred to above, the Penjuku river marked on the map appears to enter the sea at a village and school RHU shown on the map. This village, Penjuku is north of the place “Patusora” handwritten on the map, from where the dotted line representing the boundary commences to trace a line inland towards Mt Marui, from where it dog legs north to the coast at “Tetekarovo”, handwritten on the map.

Now in favour of LDCL, my brother judge’s case, he had earlier made ex parte injunctive orders which in the event of the inter party hearing on the 4^th July 2001 he discharged. In fact he found the plaintiff, LDCL, had no cause of action and struck out the proceedings.

He did not make a finding or judgment for KTCL, so his comments about land boundaries and entitlements, on the megre material before him, was obiter dicta.

On the face of the material before Kabui PJ, (not withstanding that he had reservations about boundaries and maps) it would seem that place names running north were Vao, Patusora (the LDCL concession area northern boundary) Penjuku then northwards around the coastline to Tetekarovo.

Mr Tegavota places the defendants logging machines landed at Gusala. Now Gusala does not figure on the map of the plaintiff although Mr Tegavota points to a second map annexed to the affidavit of Jerry Tekopo. That map (KL8) is part of the plaintiff’s logging plan showing where the plaintiff’s camp is situated and operating area blocks 6 and 7.

The map (KL8) is a different scale map (possibly an enlargement of KL2) showing Penjuku School RHU and the river running easterly towards Mt Mariu. Again there is a drawn broken line (to the south of Penjuku) representing, I presume the concession boundary. On the southern side of Penjuku is the word, on the map, in italics NGGAUVE.

Now Mr Tegavota points to yet another case which appears to have affected land described as Kongungaloso. That action was brought by one Simeon Nano, in his representative capacity for the Kongu Ngaloso tribe. The plaintiff’s representative, here, Jerry Tekopo, does not attempt to explain Simeon Nano’s relationship to his tribe, but I am prepared to make the connection between the two tribes, for their similarity of spelling and pronounciation; and the adoption by Jerry Tekopo of the benefit of the judgment; all point to joint interest.

So Simeon Nano’s action was heard by Lungole-Awich PJ who on the 16^th June 1997, ordered the continuation of his earlier injunctive order stopping the defendant Lupa Development Company Limited (LDCL) and Silvania Products (SI) Limited (the logging contractor) from “constructing road or conducting which is commonly referred to as logging in the land area described as Guave, Gusala, Botuana, Guhina, Choku Meka, Punala, Sosore, Imusu and the land mass contiguous to them.” (CC21/97).

The injunction was to continue until the boundary in dispute had been determined or until further order of the Court.

The apparent conflicting claims to Guave

Mr Tegavota says that Gusala (referred specifically to by Awich PJ in his order) is that place on map KL8, adjacent to the marked ‘plaintiffs logging camp, to the south of Penjuku School RHU and shown as “Place where defendants landed.” The map does not specifically name Gusala, although the word NGGAUVE appears.

What is of particular interest, however, is Awich PJ’s statement of the dispute, for he said at 2 –

“There is certainly real dispute to be resolved in this case, even if the point of dispute is a limited one. The members of the first defendant do not deny that the plaintiff has customary right over the whole large land known as Kongu Ngaloso; they only contend that Guave piece of land within Kongu Ngaloso now belongs to the first defendant’s members. It became theirs by customary gift, lukutu, and that has been upheld by the judgment of the Customary Land Appeal Court dated 8.5.1995. They also contend that there are other land areas around Guave which were included in the gift. The real issue in my view is that of identity on the ground of Guave and the other areas mentioned in the Customary Land Appeal Court judgment.”

Now that Customary Land Appeal Court decision of the 8^th May 1995 was not that of the findings of the Marovo Area Council in 1995 (18^th October 1995) which minutes were referred to more recently by Kabui PJ (CC110/01) at 5 where he said –

“One thing is however clear in the evidence before the Court. At page 4 of the Minutes of the Marovo Area Council hearing on 18^th 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 filed on 23^rd May 2001 in Civil Case No. 21 of 2001 also said that the boundary of Kongu 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 12^th May 1998 over the area between Patusora and Seko, Mr Riringi at page 4 of the Minutes said that that area was within the 1^st Plaintiff’s Concession Area. As regards to 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 12^th 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.”

So that land area Patusora to Penjuku was not totally clear of dispute if no mutual agreement was reached.

What is clear, to my mind, are two things:-

Gusala is contiguous with or within the area known as Guave (or NGGAUVE on the map).

Gusala was specifically included in the area of land subject to the injunction granted and continued in force by Awich PJ on the 16^th June 1997. But CC21/97 was instituted by Simeon Nano (described by Awich PJ “in a representative capacity, representing Kongu Ngaloso tribe” (cc21/97 at 1))

The multiplicity of complainants

Since the plaintiff, here, Kongungaloso Development Company Limited, whose director is Jerry Kekopo, is not the plaintiff party in CC21/97, and since no reliance by KTCL can be placed on the reasoning in CC110/01 (the case was struck, there was no trial and findings on the issues) I cannot join, as it were, the supposed joint interests of Simeon Nano, KTCL, (who are not named parties in these proceedings) and somehow use some colour of right to advantage the plaintiff in these proceedings, especially when the defendants have no notice.

In the absence of specific detail of any particular Customary Land Appeal Court decision since that date, 16 June 1997 specifically determining the land boundaries of any land excluded (by way of affirmative finding of Lukutu) from Kongungaloso land and the particular tribal beneficiaries of such exclusion, it is again clear the 1^st defendant Lupa Development Company Limited is prima facie in breach of the injunctive orders given on the 16^th June 1997.

The members of Lupa are accessories to the breach. Whether their actions are contumacious remain to be seen.

Inappropriate to grant ex parte orders

In these circumstances it is not appropriate to order yet another injunction against Lupa Development Company Limited. Rather, on the material before me, it may be appropriate to consider leave for a writ of attachment to issue under O.47 of the High Court Rules, were Simeon Nano, in his representative capacity, aggrieved. Because of the serious consequences which may flow from the hearing of the application for the writ, these proceedings cannot be used.

From reading Awich PJ’s reasons (CC21/97 at 2 – see above) there is clearly a Customary Land Appeal Court decision dated 8^th May 1995 which supports the Lupa claim to Guave. The extent of that land or its boundaries, are unclear from the material before me. To issue ex parte, injunctive orders is not available to the plaintiff in these circumstances.

Order

I refuse to make orders in terms of paras 1, 2, 3, 4 and 5 consequently the ex parte summons is dismissed.

BROWN PJ