Veno v Jino [2004] SBHC 10; HC-CC 152 of 2003 (9 January 2004)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 152 of 2003

STEPHEN VENO AND GORDON YOUNG

v.

OLIVER JINO, RAEVIN REVO, YALU REVO, ALBERT LEGERE,
ANDREW LANDA MURRAY, SETH PIRUKU AND WIUTILYN VIULU
AND ORION LIMITED, WESTERN PROVINCIAL EXECUTIVE
AND COMMISSIONER OF FORESTS

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 10^th December 2003
Judgment: 9^th January 2004

T. Kama for the Applicants/Plaintiffs
P. Tegavota for the 1^st and 2^nd Respondents/1^st and 2^nd Defendants
No appearance for the 3^rd and 4^th Respondents

Palmer CJ.: The Applicants (“Plaintiffs”) apply for interlocutory injunction to restrain primarily the first and second Respondents (hereinafter referred to as “the Defendants”) from commencing and carrying out any logging operations over Havahava customary land, located at Vangunu Island, Western Province.

They claim to be members of the Luma and Kavele clans respectively which they say in turn comprises the Veala tribe which owns Havahava customary land. They say that they consented with Albert Legere, John Legere, Michael Honda, Stanley Sidiki and Andrew Landa Murrary (“Proposed Landowners”) to invite Omex Limited (“Omex”) to conduct logging operations on Havahava land. Following that invitation, a Form I application for approval for negotiation to acquire timber rights was lodged by Omex with the Commissioner of Forests (“Commissioner”) and approved. On or about 25^th August 2002 a timber rights hearing was convened by the Western Provincial Executive (“WPE”) to determine inter alia, the persons lawfully entitled to grant timber rights over Havahava land. On or about 18^th September 2002, a Form II Certificate was issued which listed the Proposed Landowners as the persons lawfully entitled to grant timber rights over Havahava land. This determination however was appealed against by Raevin Revo, Yalu Revo and Seth Piriku (“Objectors”) on behalf of other landowners who disagreed with that determination.

On or about 17^th April 2003 the Proposed Landowners and Objectors came together and consented to a judgment for the Western Customary Land Appeal Court (“WCLAC”) to endorse. That consent judgement identified the following persons as the persons representing all the persons lawfully entitled to grant timber rights over Havahava land: Raevin Revo, Yalu Revo, Seth Piruku, Andrew Landa Murray, Oliver Jino and Wiutilyn Viulu (hereinafter referred to as “the Landowners”).

Prior to 17^th April 2003, on 26^th March 2003, the Proposed Landowners and Objectors together wrote a letter to Omex declining to continue with any further negotiations of timber rights with it. This was followed by a similar letter of 17^th April 2003.

Thereafter, the Landowners entered into negotiations with another logging company, Orion Limited (“Orion”) for purposes of conducting logging operations in Havahava land. On or about 22^nd April 2003, the Landowners lodged submission with the Commissioner for purposes of entering into negotiations with Orion to conduct logging operations in Havahava land. On 23^rd and 28^th April 2003 they held meetings with the Commissioner to discuss their views and intentions following which his consent and assurances were obtained for negotiations and for a timber rights agreement to be entered into with Orion. The timber rights agreement was signed on 29^th April 2003 and a licence issued in favour of Orion on 9^th May identified as TN 10215.

The Defendants now wish to commence logging operations but the Plaintiffs object alleging irregularities in the way the timber rights agreement and licence have been approved and issued.

Triable Issues

A number of triable customary issues have been identified between the parties. These include, disputes over clan and tribal membership. Both parties do not deny that the Veala tribe is the owner in custom over Havahava land. They disagree however over their various claims of membership of Veala tribe by virtue of their clans.

The first Defendants apart from Seth Piruku say that they are members of the Sukiviko clan whilst Seth Piruku is a member of the Duolo clan which form part of the Veala tribe. The Plaintiffs however deny that the Sukiviko clan is part of the Veala tribe; they say it is part of the Sugili tribe, which does not own Havahava land. Unfortunately there is some inconsistency already in this assertion as on one hand, the Plaintiffs had not objected to the determination of the WPE on 18^th September 2002 that the Proposed Landowners had right to grant timber rights over Havahava land whilst before this court, they are now saying that they do not have any land rights over the said land!

The first Defendants dispute the claim by the Plaintiffs that the Luma and Kavele clans are part of the Veala tribe. Rather they say that the Luma clan is part of the Sugili tribe and the Kavele clan part of the Kadiki tribe; separate tribes altogether and do not have land rights over Havahava land.

Despite the existence of these triable issues in custom, they cannot ground an action in this Court as they are matters reserved for our traditional chiefs and the Local Courts to deal with (see the Local Court Act and the Land and Titles Act sections 254 and 255 giving exclusive jurisdiction to the Local Court and the Chiefs).

Legal issues

There are other issues raised by the Plaintiffs which they say are serious and which this court must take cognizance of. The Plaintiffs say that the procedures set out in Part III of the Forest Resources and Timber Utilisation Act [Cap. 40] (“the Act”) had not been complied with in particular references to the convening of a timber rights hearing for purposes of identifying the persons entitled to grant timber rights. Section 7(1) of the Act stipulates that any person wishing to carry out any logging operation in the country should make application in the prescribed form and manner to the Commissioner for his consent to negotiate with the appropriate Government, Provincial Executive and owners of such customary land. The Plaintiffs say this had not been complied with and therefore they had not been given opportunity to object to the application of Orion and the claim of the Landowners as the persons deemed to be lawfully entitled to grant timber rights over Havahava land. The timber rights agreement entered into on 29^th April 2003 and the licence issued therefore were defective and ought to be set aside.

This issue raises the effect of the letters of termination or withdrawal from negotiations with Omex sent by the Landowners on 26^th March 2003 and 17^th April 2003. What is the effect of those letters of termination? Are the Landowners entitled to withdraw their rights to negotiate with Omex and to decline to sign any timber rights agreement with Omex? Does Omex have any rights to insist on the Landowners signing the agreement with them? Respectfully, this issue must be answered in favour of the Landowners. They are not bound to enter into a timber rights agreement with the Applicant if they should decide otherwise. As owners of their forest resources they are entitled to enter into negotiations with and to sign a timber rights agreement with such company of their choosing. Until a timber rights agreement had been signed and sealed, they are not bound to continue negotiations with Omex on one hand and on the other hand, to invite another logging company to negotiate with them.

Effect of determination of the WPE and Consent Judgement of WCLAC.

The combined effect of the determinations of the WPE and the Consent Judgment of the WCLAC is important to appreciate as it has direct bearing on the questions whether there are serious issues for determination before this court and the locus standi of the Plaintiffs. What it meant is that with regards to questions of timber rights ownership over Havahava customary land, it had been finally determined as between the disputing landowners (see Gandly Simbe v. East Choiseul Area Council and Others^[1], Talasasa v. Talasasa^[2] and Paia v. Talasasa^[3] approved in Beti v. Allardyce Lumber Co. Ltd^[4]). It would be superfluous therefore for issues pertaining to ownership of timber rights over Havahava land to be re-determined. All that would be needed, where a fresh application to acquire timber rights is lodged, is for the approval of the Commissioner and the WPE to be obtained in respect of such fresh application.

Application of Orion.

Having terminated negotiations with Omex, the Landowners invited Orion to negotiate with them for the acquisition of timber rights for purposes of conducting logging operations in Havahava land. According to the evidence adduced and submissions of the Defendants such requirements of the Act to be complied with had been fulfilled before the timber rights agreement and licence were issued (see affidavit of the Commissioner filed 15^th August 2003 at paragraphs 3-6). In the circumstances the maxim “omnia presumuntur rite esse acta” must apply to the facts of this case. Until such irregularities are established, the Defendants have right to commence with their proposed logging operations.

Locus standi of the Plaintiff

Insofar as the customary issues enumerated in this judgment are beyond the jurisdiction of this Court, that the proper forum for dealing with such matters is before the Chiefs and the Local Courts, this Court nevertheless has power to grant relief by way of injunctions as an aid to the exercise by a local court or customary land appeal court in its jurisdiction to decide such disputes. Such injunctive relief is designed to facilitate the determination of ownership issues in the local court or the customary land appeal court.

I note a customary land dispute in respect of Havahava land had been reported before the Marovo Council of Chiefs and that a judgment in favour of the first Defendants had been obtained. The effect of that decision and the fact that the Plaintiffs had not referred any dispute in custom to the Local Court under section 12(3) of the Local Court Act is fatal to any standing that they might now wish to assert before this court (see comments of Brown J. regarding the status of Chief’s decisions in Eddie Muna and Smiley Muna v. Holland Billey and Toben Muna and Attorney General as representative of the Commissioner of Lands^[5]). His Lordship pointed out in the above case that Schedule 3(1) of the Constitution recognizes the existence of customary law as “part of the law of the Solomon Islands”. His Lordship held that insofar as the Chiefs are the repository of customary truths or law, any decision made by them in the absence of a referral to the Local Court must be accorded the same status as law in our jurisdiction. In this instance therefore, where the decision had gone in favour of the first Defendants and a fortiori where no referral had been made under the Local Act by the Plaintiffs, that must be accepted as the law until it is overturned by a local court. His Lordship also pointed out that the fact that a referral was made by the winning party themselves, in this instance, by the first Defendants to the Local Court, cannot prejudice their right in law to a valid Chief’s decision. The first Defendant’s in this case were not the aggrieved party and therefore were not obliged to file with the Clerk of the Local Court an “unaccepted settlement” Form 1. The fact they may have lodged an application with the local court for further hearing of the dispute cannot affect the standing and validity of the Chief’s decision in their favour. His Lordship held that in such instances, it can be presumed that no dispute has been referred in accordance with section 12(3) of the Local Court Act.

The effect of his Lordship’s ruling in the above case [Eddie Muna and Smiley Muna v. Holland Billey and Toben Muna and Attorney General (ibid)] meant that the power of this court to grant relief by way of an injunction as an aid to the exercise of the local court in settling disputes cannot be activated; this court simply has no jurisdiction.

Insofar as the issue of standing to challenge the validity of the timber rights and licence of Orion is concerned therefore, there is overwhelming evidence that the Plaintiffs lack standing to usurp that timber agreement and licence. They were neither parties to the agreement and were never identified as being part of the persons lawfully entitled to grant timber rights over Havahava land. Until their customary claims or rights over Havahava land have been supported or endorsed by the local court or customary land appeal court, their claims at this point of time must remain as mere assertions insufficient to ground injunctory relief sought in this application. They may come back to court if armed with a decision in their favour.

Decision

The application for interlocutory relief must be denied.

Orders of the Court:

1. Refuse application for injunction.
2. Award costs against the Plaintiffs.
   

The Court.

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^[1] CASI-CAC 8/97
^[2] (1988) CAC 2/1987 at 4-5
^[3] (1980/81) SILR 93
^[4] (1992) CAC 5/92 at 9
^[5] HCSI-CC 284 of 2001, 11^th December 2003 at 4 - 8