Kuiti v Amoi [2005] SBHC 88; HCSI-CC 268 of 2005 (9 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 268 of 2005

PESETI KUITI
(Representing his Kuvotu Tribe)

-v-

CHACHABULE AMOI

Hearing: 9^th June 2005
Ruling: 9^h August 2005

A. Radclyffe for the Plaintiff
C. Ashley for the Defendant

RULING

Mwanesalua, J: By Summons filed on 23^rd May 2005, the Plaintiff seeks the following Orders -

1. That the Defendant, his servants and agents vacate Gulagulasa Land immediately and be restrained from felling and extracting trees on Gulagulasa Land, Marovo Lagoon, Western Province.

2. That the Defendant, his servants and agents vacate Gulagulasa Land immediately and be restrained from re-entering the same;

3. That the Defendant provide an account, within 14 days, of all trees felled and extracted on Gulagulasa Land by species, volume and value;

4. That the net proceeds of sale of any timber extracted from Gulagulasa Land be paid into an interest bearing account in the joint names of the parties’ solicitors;

5. Such further or other orders as the court thinks fit;

6. That the Defendant pay costs of this application.

The Background

The Plaintiff lives at Nineveh Village, Marovo, Western Province. He is a member of the Kuvotu Tribe. On 24^th September 2004, he lodged an application to the Commissioner of Forest Resources on behalf of his tribe for a milling licence. On 29^th September 2004, the Commissioner issued Licence No. A204104 to Omeioh Milling Project of the Plaintiff’s tribe, to install and operate a mill on Gulagulasa Land, in Marovo, Western Province.

The Defendant lives at Michi Village, Marovo, Western Province. He is a member of the Tobakokorapa Tribe. On 28^th October 2004, he lodged an application to the Commissioner for a Milling Licence. On 8^th November 2004, the Commissioner issued Licence No. A204126 to the Defendant to install and operate a mill on Tobakokorapa Land. His family has been living on the Land for more than 60 years. He says that Gulagulasa Land is situated within the boundaries of Tobakokorapa Land.

The Plaintiff says that Tobakokorapa Land and Gulagulasa Land are situated far apart and they do not share a common boundary. That since November 2004, the Defendant, his servants and agents have entered upon Gulagulasa Land without the consent of the Kuvotu Tribe. They have felled and extracted timber for sale without licence. Their logging operation continues in defiance of his request for them to cease their operation. The Defendant refers to the land as Kiuba Land.

The Plaintiff reported the Defendant’s logging operation on the Land to the Forestry Office at Seghe Sub-station in the Western Province. Following that report, a team of forestry officers inspected the land on 9^th May 2005. They confirmed in their report that 111 trees of various species and volumes have been felled and extracted from the Land.

The Case for the Plaintiff

That The Defendant has been felling and extracting trees for sale from Gulagulasa Land unlawfully as he has been doing so without Licence and consent from members of the Kuvotu Tribe who own the Land.

The Case for the Defendant

That there are no serious triable issues before the High Court as the Court lacks jurisdiction to determine the custom disputes which persist between the parties regarding the correct name of Gulagulasa Land, the ownership of Gulagulasa Land and the boundaries of Gulagulasa and Tobakokorapa Customary Lands.

The Decision of the Court

The Plaintiff filed an action against the Defendant on 23^rd May 2005. He claims damages for trespass to Gulagulasa Land and conversion of trees felled thereon by the Defendant. The Plaintiff also seeks an injunction to restrain the Defendant, his servants and agents from felling trees on the land and an order that they vacate the Land immediately. Also, filed on that same day was a summons set out above, seeking inter alia, restraining orders from the court in similar terms as the claim for an injunction in the statement of claim. The Plaintiff’s statement of claim raises the issue of ownership of Gulagulasa Land. There was no evidence to show that the Kuvotu Tribe has a final decree on the ownership of Gulagulasa Land as against the Tobakokorapa Tribe. The High Court does not have jurisdiction to determine the ownership of Customary Land. (See Gandly Simbe v. East Choiseul Council, Eagon Resources Dev. Company Ltd., Steven Saki and Peter Mada, Civil Appeal No. 8 of 1997). It is a matter for the Chiefs, the Local Court and the Customary Land Appeal Court in their respective jurisdictions.

The Plaintiff’s present application for orders raised issues of custom as well. These issues relate to the correct name of Gulagulasa Land plus the boundaries of Gulagulasa Land and Tobakokorapa Land. The High Court also does not have jurisdiction to determine the correct names and boundaries of customary lands. They are matters for the Chiefs, the Local Court and the Customary Land Appeal Court (See Wiuthyn Viulu and Others v. Kavusu and others, Civil Case No. 015/2002, Ruling dated 7.10.2003 and Ghem Vaghi Mada and Others v. Viuru Forest Enterprises and Others, Civil Case No. 207/2004).

The High Court only has an aiding jurisdiction in the Resolution of Customary Land disputes. Acting under this aiding jurisdiction the High Court could assist the Chiefs by granting injuctive orders to maintain the status co between the parties for the meantime, if the dispute was reported to the Chiefs and the dispute is pending before that forum (see John Osiramo v. Mesech Alonnia, Civil Case No. 020/2000, Nathan Kere v. Paul Karana, Civil Case No. 258/2002, Joe Rodi Totorea and Others v. Tairata Intergrated Forest Development Company Limited and Another, Civil Case No. 204/2000, Harold Hilly v. Letipiko Balesi and Others and Attorney-General, Civil Case No. 224/2000, Eddie Muna and Another v. Holand and Another and Attorney-General, Civil Case No. 284/2001 and Ghemu Vaghi Mada and Others v. Viuru Forest Enterprises and Others cited above). There is no evidence to show that the Plaintiff has reported the disputes on the correct name of Gulagulasa Land, the ownership of Gulagulasa Land and the boundaries of Gulagulasa Land and Tobakokorapa Land to the Chiefs for determination. On that basis I do not have power to make the orders sought. I do not think that I should then go on to make the orders on the basis that the Defendant had no licence to fell and remove timber for sale from Gulagulasa Land. The proper cause of action in such a case would lie in criminal prosecutions under Sections 4 and 17 of the Forest Resources and Timber Utilisation Act [Cap. 40]. I dismiss the application. The Plaintiff is to pay the Defendant’s costs in this application.

THE COURT