Pa'asi v Hero'au [2006] SBHC 86; HCSI-CC 479 of 2004 (30 June 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 479 of 2004

JOSEPH PA’ASI, STEPHEN TAHUNIMAKE, JOHN MAKAANA,
ROMEO TO’ISUTA, WILLIE POIRARO, JOHN MAHANE AND FRANCIS HASI’AU
(Plaintiffs)

-v-

JOHN HERO’AU (First Defendant),
MICHAEL ORITAIMAE, JOHN HEROAU, JOHN KEREMA’I, MORAMAI PAINA,
KO’UAROSI, JOACHIM PAROISU’U AND FRANCIS ANIRATANA
(Trading as Arasihanua Land Trust) (Second Defendants),
JOY ITAIA (Trading as Oceania Trading Company) (Third Defendant)
AND COMMISSIONER OF FOREST RESOURCES (Fourth Defendant)

(Mwanesalua, J.)

Hearing: 4th November 2004, 3rd February,
4th and 6th April and 24th May 2005
Ruling: 30th June 2006

James Apaniai for Plaintiffs
Andrew Nori for the First, Second and Third Defendants

RULING

Mwanesalua, J: The Plaintiffs filed a Writ of Summons with a Statement of Claim on 20th October 2004 against the Defendants seeking declarations that the Second Defendants have no valid timber rights agreement in relation to Hanuaraua Customary Land; that the Second Defendants’ timber licence No. A10307 issued on 11th December 2003 is invalid and null and void in respect of Hanuaraua Customary Land and permanent injunction restraining the Second Defendants, their servants and agents from entering or remaining in, Hanuaraua Customary Land and/or constructing any roads therein and/or felling or removing any trees from within Hanuaraua Customary Land or otherwise from carrying out any logging activities within Hanuaraua Customary Land.

On 1st November 2004, the Plaintiffs amended their Statement of claim referred above, by extending the scope of their reliefs by seeking a declaration that any timber rights agreement signed by the First Defendant with the Second Defendants in respect of Hanuaraua Customary Land without the approval of the Plaintiffs is null and void, and a permanent injunction restraining the Second and Third Defendants, their servants and agents, from entering or remaining in, Hanuaraua Customary Land and/or constructing any roads therein and/or felling or removing any trees from within the Hanuaraua Customary Land or otherwise from carrying out any logging activities within Hanuaraua Customary Land.

On 12th November 2004, the Plaintiffs again amended their writ of summons and statement of claim filed on 20th October 2004 by Consent Order, by deleting "ALBERT ALICK NORI AND ANDREW HANAIPEO NORI (Trading as Arasihanua Land Trust)" and replacing them with "MICHAEL ORITAIMAE, JOHN HERO’AU, JOHN KERETA’I, MORAMAI PAINA, KO’UAROSI, JOACHIM RAROISU’U, SOLOMON NAOTORO AND FRANCIS ANIRATANA (Trading as Arasihanua Land Trust.")

On 7th December 2004, the Plaintiffs further mended their Writ of Summons and Statement of Claim as amended by the Consent Order dated 12th November 2004, referred to above, by the inclusion of Michael Oritaimai, John Hero’au, John Kereta’i, Moramai Paina, Ko’uarosi, Joachim Raroisu’u, Solomon Naotoro and Francis Aniratana (Trading as Arasihanua Land Trust) as the Second Defendants in the action; and by amending the Statement of Claim filed on 20th October 2004 referred to above.

In their amended Statement of Claim of 7th December 2004 referred to above, the Plaintiffs claim the following reliefs against the Defendants:

"16...............

[1] A declaration that the purported inclusion of Hanuarana tribe as a member of the Arasihanua Land Trust incorporated through the execution of the Deed by the First Defendant is null and void.

[1A] A declaration that no valid timber rights agreement exists between the members of the Hanuaraua tribe in respect of Hanuaraua Customary Land entitling the Second Defendants, their servants and agents, to carry out logging operations within Hanuaraua Customary Land.

[2] A declaration that Second Defendants’ timber licence No. A10307 issued on 11th December 2003 is invalid and null and void in respect of Hanuaraua Customary Land.

[3] Permanent injunction restraining the Second and Third Defendants, their servants and agents, from entering or remaining in, Hanuaraua Customary Land and/or constructing any roads therein and/or feeling or removing any trees from within the Hanuaraua Customary Land or otherwise from carrying out any logging activities within Hanuaraua Customary Land; and

[4] That the First, Second, Third and Fourth Defendants pay the Plaintiffs’ costs."

When the Plaintiffs filed their Writ of Summons and Statement of Claim on 20th October 2004, they also filed a summons on the same day seeking orders, inter alia, that the Second and Third Defendants, by themselves, their servants and agents, be restrained from entering and/or remaining on or within Hanuaraua Customary Land and/or constructing any roads within Hanuaraua Customary Land, or any part hereof until trial or further order of the court.

Hanuaraua Customary Land is located in ward 25, West Are’Are, Malaita Province. This land is comprised of five parcels of Land called Iramou, Wa’anamori, Perahau, Ohano and Naonihanua. Five Plaintiffs in this suit are Romeo Toisuta, John Mahane, Francis Hasi’au, Joseph Pa’asi and Stephen Tahunimake. Romeo Toisuta comes from the Iramou sub-clan which has possession of Iramou parcel. John Mahane comes from the Wa’anamori sub-clan which has possession of Wa’anamori parcel. Joseph Pa’asi is Francis Hasi’au’s brother. Francis Hasi’au, Joseph Pa’asi and Stephen Tahunimake all come from the Perahau sub-clan which has possession of Perahau Land. Romeo Toisuta, John Mahane and Francis Hasi’au are members of the Hanuaraua tribe which owns Hanuaraua Customary Land.

In 2002, the Second Defendants decided to engage in the Logging industry. On or about 3rd February 2003, it lodged an application in Form I[1] to the Commissioner of Forest Resources for permission to negotiate timber rights with tribes which own Customary Lands situated between Si’ua river and Waisisi river in West Are’Are.

On 24th July 2003, the Malaita Provincial Executive ("the Executive"), held a timber rights hearing at Waisisi with the Second Defendants and the tribes which own Hahoramuhua, Hanuapusu, Hanuaraua, Huro, Ohoraha, Siararaitoro Surairu and Taraiohu Customary Lands[2]. These lands are situated between Si’ua river and Waisisi river in West Are’Are. The Executive identified the tribal representatives who were entitled to grant timber rights over Hahoramuhua, Hanuapusu, Hanuaraua, Huro, Ohoraha, Siararaitoro, Surairu and Taraiohu Customary Lands. The Executive published its Form 2 determination on the persons who were lawfully able and entitled to grant timber rights to the Second Defendants over Hahoramuhua, Hanuapusu, Huro, Ohoraha, Siararaitoro and Taraiohu on the same day, 24th July 2003[3].

The Second Defendants and the tribes which own Hahoramuhua, Hanuapsu, Huro, Ohoraha, Siararaitoro, Siarairu and Taraiohu Customary Lands signed a Standard Logging Agreement ("the agreement") over these Lands on 9th July 2003. This Agreement was subsequently dated 29th October 2003[4].

On 11th November 2003, the Malaita Provincial Secretary issued a Certificate (Form 3) to the Commissioner of Forest Resources certifying that the agreement was entered into in accordance with Sections 7 to 11 of the Forest Resources and Timber Utilisation Act (Cap.40) ("the Act"). John Hero’au’s (First Defendant) name was also included in the Certificate as the person who granted timber rights over Hanuaraua Customary Land to the Second Defendants through the Agreement. That Certification was wrong to the extent that Chief John Hero’au did not sign the Agreement (Exh. "AAN7"). Acting upon this Certificate, the Fourth Defendant issued Felling Licence No. A10307 ("the Timber Licence") to the Second Defendants on 11th December 2003.

The Second Defendants engaged the Third Defendant as the Contractor to fell trees and remove logs for sale from Hanuapusu, Hanuaraua, Huro, Ohoraha, Surairu and Taraiohu Customary Lands under the authority of the timber Licence. The Third Defendant landed its fuel, logging equipment and machinery at Waisisi harbour, on 4th August 2003.

Three Plaintiffs in this suit are Romeo Toisuta, John Mahane and Francis Hasi’au. They deposed that the Second Defendants and the Third Defendants entered and constructed roads on Iramou parcel on 28th February 2005. Logging has likewise been carried out on Wa’anamori parcel which forms part of Hanuaraua Customary Land[5].

The Executive did not make any determination regarding the nature and extent of the timber rights to be granted to the Second Defendants in respect of Hanuaraua Customary Land on 24th July 2003. According to Plaintiffs Rome Toisuta, John Mahane and Francis Hasi’au, this was so because they and certain members of their sub-clans of Iramou, Wa’anamori and Perahau objected to the proposed logging by the Second Defendants being conducted on Hanuaraua Customary Land. The Hanuaraua tribe was not a party to the Agreement purported to be made on 29th October 2003 and executed at Waisisi on 9th July 2003. That Agreement was merely signed between the Second Defendants and the representatives of Hanuapusu, Huro, Ohoraha, Siararaitoro, Surairu and Taraiohu tribes. The timber licence issued to the Second Defendants on 11th December 2003 will remain valid until 11th December 2008.

The timber licence covers Hanuapusu, Hanuaraua, Huro, Ohoraha, Siararaitoro, Suraitu and Taraiohu Customary Lands. However, the Hanuaraua Tribe which owns Hanuaraua Customary Land was not a party to the Agreement as the First Defendant did not execute the agreement.

Mr. Alick Savo is a defence witness in this case. He deposed that in Are’Are land tenure system, land rights and land-use authority vest with the Sub-clans. This would entitle the Plaintiffs John Mahane a member of the Wa’anamori sub-clan to have rights in Wa’anamori land, Romeo Toisuta a member of the Iramou Sub-clan to have land rights in Iramou land, and Francis Hasi’au, Joseph Pa’asi and Stephen Tahunimake to have rights in Perahau land. These three parcels of land are part and parcel of the Hanuaraua Customary Land which the timber licence covers as well. The Plaintiffs have sufficient interest in Wa’anamori, Iramou and Perahau lands which are part of Hanuaraua Customary Land. These interests would entitle the Plaintiffs to come to court for injunction[6].

There is evidence that the Plaintiffs had referred disputes regarding, inter alia, the transfer of all rights to timber and forest resources in Hanuarua Customary Land to Arasihanua Land Trust ("ALT") by the First Defendant and the membership of the Hanuaraua tribe by Joseph Pa’asi and Stephen Tahunimake to the Arahanimane Council of Chiefs ("the Council"). The Council is yet to hear and make its determinations on the disputes. This court would have jurisdiction in such circumstances, to grant relief by injunction to enable the Council to determine the disputes[7].

There are also serious questions of law which this court has jurisdiction to determine. These issues relate to whether the agreement and the timber licence are valid in respect of Hanuaraua Customary Land.

I find that there are serious issue to be tried. The Plaintiffs’ action is not previous or vexatious. There is real prospect that the Plaintiffs will succeed in their claim for permanent injunction at the trial.

The Plaintiffs do not support logging on Hanuaraua Customary Land. They are interested in producing sawn timber for sale. On 25th March 2004, the Fourth Defendant issued a Licence to the Plaintiffs to operate a mill. That Licence "covers Hanuaraua Araha Customary Land."

The balance of convenience in this application lies in favour of the Plaintiffs. The Plaintiffs are simple village people. They wanted to preserve the trees on Hanuaraua Customary Land so that they can mill them in a sustainable manner. They do not require to give any undertaking to pay damages[8].

There is need to maintain the status co in this matter. The status co is to prevent all parties from dealing with Hanuaraua Customary Land in any manner until the substantive action is tried and determined. The Plaintiffs application is therefore granted in terms of paragraphs (2), (3), (4), (5) and (6) of the Plaintiffs’ summons filed on 20th October 2004. I order accordingly.

F. Mwanesalua
Puisne Judge

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^[1] Exhibt “JP1” annexed to affidavit of Joseph Fa’asi and Stephen Tahunimake filed on 21^st October 2004.
^[2] Exhibit “AAN 4” annexed to affidavit of Albert Alick Nori filed on 29^th November 2004.
^[3] Exhibt “AAN 5” annexed to the affidavit of Albert Alick Nori filed on 29^th November 2003
^[4] Exhibit “AAN 7” annexed to the affidavit of Albert Alick Nori filed on 29^th November 2004
^[5] Paragraph 6 of Alick Savo’s affidavit filed on 15^th April 2005.
^[6] Obed Alemaena & Luke Eta-v-Bulacan Integraed Wood Industries(SI)
Limited & Attorney-General CCNo. 155 of 2002.
^[7] Gandly Simbe-v-East Council Area Council and Others – Apeal case No. 8 of 1997; John Osiramo-v-Mezech Aeounia – Civil Case No. 020 of 2000; Vaedalya Tutua & Others-v-Kongu Ngaloso Timber Company and Omex Ltd – Civil Case No. 063 of 2001; Obed Alemaena & Luke Eta-v-Bulacan Integrated Wood Industries(SI) Limited & Attorney-General – Civil Case No. 155 of 2002.
^[8] Steward Tatahu-v-Elison Lifuasi and Alban Leaga – Civil Case No. 146 of 1996.