Kuiti v Saga [2006] SBHC 44; HCSI-CC 359 of 2006 (15 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 359 of 2006

LAY SEKE KUITI AND PESETI

-v-

SONI SAGA, TUI KAVUSU & OMEX LIMITED

Date of Hearing: 15 September 2006

Date of Ruling: 15 September 2006

Ms M. Bird for the Plaintiffs
Mrs. J. Tongarutu for the 1st & 2nd Defendants
Mr.T. Kama for the 3rd Defendant

RULING
on claim for late service of summons seeking restraining order when originating process pleads customary rights outside the High Court’s jurisdiction

Brown PJ: This is a summons seeking orders stopping the logger Omex Limited from paying royalty money to the 2nd defendant. Mr Kama is amendable to order in those terms pending final hearing. Of course, the money may well remain with Omex.

The royalties flow from logging carried out it seems in accordance with a logging agreement following a Timber Rights Hearing where Kelo Lianga and Soni Saga with others were named as those entitled to grant Timber Rights. This appears from the plaintiffs Statement of Claim.

As a consequence of the timber logging licence, the logger has been paying at the direction of Soni Saga particular royalties attributable to timber felled in blocks, 16 & 20. The plaintiff who claim as a landowner, contests the right of the 1st defendant Soni Saga to direct payment and especially denies the right of the 2nd defendant Tui Kavusu to benefit at all.

The plaintiff says the 2nd defendant is not a member of the Veala Tribe and he should not receive any form of royalty payments. The pleading raised questions of custom.

Since the money has been directed to be paid by those found to be able to grant timber rights, it follows that the responsibility for the distribution of royalty moneys rests with these people as trustees in custom for the money.

If, there is an alleged breach of customary trust arising out of landholding rights, the jurisdiction to adjudicate lies with the chiefs not the High court. (Oliver Jino’s case-. Court of Appeal 12th April 2006; Local Courts Act, s.12).

It does not help the plaintiff to claim some inherent powers of this court, when injunctive orders are discretionary and must spring from jurisdiction to adjudicate to hear particular cases which have by statutory provision been left to custom. There is no jurisdiction to adjudicate upon entitlement under custom, entitlements which the particular trustees must stand responsible for. If the chiefs find they have breached their, if I may say fiduciary duties, then they lay themselves open to a claim for damage to reimburse the proper people who have missed out.

But this court cannot presume to interfere in custom, not can it accept the implied argument by Ms. Bird that the trustees if found to be in breech would not stand to meet any damage claim.

In the circumstances I am not satisfied the cause of action can support the orders sought. It relates to custom.

The summons accordingly is dismissed. The statement of claim is also dismissed.

I order that costs follow the event.

The plaintiff shall pay both defendants costs.

THE COURT