Velomama v Vandako [2006] SBHC 96; HCSI-CC 165 of 2004 (29 November 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 165 of 2004

MOSES VELOMAMA AND ISAAC KAMAKOLO

-v-

ELIAH VANDAKO, EDWARD VELOMAMA, LEVI PAPATORA(Junior),
JACQUILINE MOSES, JOHN WICKLEY BOSEVOLOMO, JOHN MOTU,
GREGORY MATUBANGARA, JONATHAN TAREQE, BENJAMIN KAMEKA,
DENDICT GEDE, EMU VULEMAMA, MANASEH VELOMAMA,
DENGAKOLO VADAKO, MOSES ZELEVEKE, EDDIE POLOSO, ROBERT KIPLIN,
KOTARU VADAKO, RENEL ALEBOLE, VENEVANA ALEBOLE,
GROVER MODOBACHO and CHILLION QOQOROBANA

(Mwanesalua, J.)

Civil Case No: 165 of 2004

Hearing: 30 October 2006
Judgment: 29 November 2006

M. Pitakaka for the Applicants
M. Tagini for the Respondents

JUDGMENT

Mwanesalua, J: The Respondents in this case are Eliah Vandako, Edward Velomama, Levi Papatora(Junior), Jacquiline Moses, John Wickley Bosevolomo, John Motu, Gregory Matubangara, Jonathan Tareqe, Benjamin Kameka, Dendict Gede, Emu Vulemama, Manaseh Velomama, Dengakolo Vadako, Moses Zeleveke, Eddie Poloso, Robert Kiplin, Kotaru Vadako, Renel Alebole, Venevana Alebole, Grover Modobacho and Chllion Qoqorobana. Each of them have been charged for contempt of court in respect of the order of this court dated 19 October 2005 ("the 2005 Orders").

The 2005 orders were in these terms:

"1. Declare that the Plaintiffs and the members of the Tarekacho tribe are the owners of Tarekacho Land inclusive of its portion called Karakonelavata Land and that the 1st and 2nd Defendants are bound by court decision of 23 October 1954.

2. Declare that the 1st and 2nd Defendants have no right in custom and law to interfere with the logging operation on Tarekacho Land inclusive of Karakonelavata Land by the Plaintiffs and the company to cut, fell and take away timber.

3. The 1st and 2nd Defendants by themselves, their agents, friends and the members of their tribe are permanently restrained from trespassing into Tarekacho Land or any part thereof and interfering with the logging operation on that Land without the lawful authority of the Plaintiffs.

4. Costs in this application to be paid by the Defendants."

The Plaintiffs assert that the Respondents were guilty of contempt of court in that they trespassed and interfered with the logging operation within Tarekacho Land in breach of order 3 of the 2005 orders. The Respondents did not deny that they interfered with the logging operation. However, they said they interfered with the Logging Operation because it took place within Pokaliqo land owned by their tribe.

Tarekacho tribe has customary land in North Choiseul. This land is called Tarekacho Land. Pokaliqo tribe also has customary land in North Choiseul called Pokaliqo Land. These Customary Lands share a common boundary. These two tribes went to court on 23 October 1954 over ownership of Karakonelavata Land. The court decided in favour of the Tarekacho tribe for the ownership of Karakonelavata Land. That land is part and partial of Tarekacho Land.

The court decided that Karakonelavata Land "commences in the bush at a point known as Daokoso, thence to a point known as Taresogo, thence to Jazala, thence to Suaka, thence to Ovoloboro, Chiromache, Soramacharo, thence along the left bank of Kisakisa river to the coast, thence westwards along the coast to the mouth of Lokavara river, thence back along the right bank of the Lokavara river to Daokoso, the whole being situated in the Tavula sub-district of Choiseul..."

Isaac Koramakolo is one of the Plaintiffs in this case. He deposed that on an unknown date in November 2005, Egon Company resumed its logging operation on Tarekacho Land after this court made the 2005 orders.

On or about 31 November 2005, he was at block 20 of Tarekacho Land. On that day, among others, he identified thirteen members of the Pokaliqo land tribe came into block 20 and ordered the employees of Egon Company to stop their logging operation. They threatened to burn the logging machines if work continued. They then seized one stihl ‘070’ chainsaw and one dry cell battery of a D6 Bulldozer.

These items were owned by Egon Company. The members of the Pokaliqo tribe who interfered with the logging operation by seizing the items on that day were Eliah Vandako, Edward Velomama, Levi Papatora(Jr), Jacquiline Moses, John Wickley Bosevolomo, John Motu, Gregory Mataubangara, Jonathan Tareqe, Benjamin Kameka, Benedict Gede, Emu Vulemama, Manaseh Velomama and Dengakolo Vadako.

The Plaintiffs assert that the Respondents were guilty of contempt of court because they were in breach of order 3 of the 2005 orders as they trespassed and interfered with the logging operation carried on in block 20 of Tarekacho Land. They produced a map containing their delineated boundary of Tarekacho Land. The boundary delineated in black ink edged yellow. Within that boundary, to the north, they put an "X" edged black and red. They said point "X" was the position where the Respondents trespassed and seized the stihl chainsaws.

On their part, the Respondents did not deny that there they interfered with the logging operation. However, they claimed that they merely intervened by seizing the chainsaws used in the logging operation because it occurred in Pokaliqo land which is owned by their tribe. They also produced their map with a sketch plan of Pokaliqo land and marked the position where they alleged that they interfered with the logging operation by seizing the chainsaws.

The Plaintiff charged the Respondents with contempt of court. They say that the Respondents breached order 3 of the 2005 orders.

The procedure for applications for attachment for contempt of court is set out in order 61, rule 21 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules. This Rule states –

"21(1) The procedure in applications for attachment for contempt of court in the cases to which this Rule applies shall be the same as in applications for an order of mandamus and Rules 2, 4, 5 and 6 of this order shall apply accordingly to applications for attachment, so far as they are applicable:

Provided that the issue of the writ of attachment shall not be ordered by a judge in Chambers, and the notice of motion shall be personally served unless the court dispenses with such service.

(2) This Rule applies to cases where the contempt is committed -

(a) in connection with proceedings to which this order relates;

(b) in connection with any proceedings in court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the Court;

(c) in connection with proceedings in an inferior Court."

There is no evidence before me to show that leave was granted to the Plaintiffs to commence contempt of court proceedings against the Respondents. They did not comply with the procedure provided in Order 61, rule 21 of the High Court Rules as set out above.
The advocate for the Respondent did not point out to the Court that the Plaintiffs did follow the procedure in the High Court rules in taking contempt of Court proceedings against his clients. Contempt of Court proceeding can only be made after leave is grant by the court. No such leave was granted in this case. The result is that the Plaintiffs’ Notice of Motion filed on 1 September 2006 is struck out for abuse of the process of the Court. The parties will pay their own costs. I order accordingly.

Francis Mwanesalua
Puisne Judge