Chinogo v Kalahaki Company Ltd [2007] SBHC 11; HCSI-CC 29 & 47 of 2007 (16 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Cases No. 29 and 47 of 2007

FRANCIS CHINOGO, CORNELIUS VULU MARCELINO VOTU,
ANTONIO KELIVELE, VIVIAN BEKU, CORNELIA TAKUVI, SUSAN TSARO, MERESIANA PARASODO

-v-

KALAHAKI COMPANY LTD & STEPHEN MATEVAKI,
THERESA AU AND KOLOGNGA KARASIO

Brown J.

Date of Hearing: 16 March 2007
Date of Ruling: 16 March 2007

G. K. Suri and B. Etomea for the Plaintiffs (in cc. 47/2007)
A. Nori for the 1st defendant
C. Levo for the 2nd defendants

RULING

Summons for injunction to stop access to customary land for logging purposes and to prevent disbursement of moneys from sale of logs

Brown, J: The summons that I’m faced with is that of the plaintiffs in cc. 47 of 2007 by Francis Chinogo and others, who seek by way of injunction to restrain Kalakaki Timber company and those other persons named from using Laovudi customary land (which stretches from Pupuku stream down to the sea to the north) whether for access to other land or to fell timber. As well they claim logs cut or harvested on that part of Laovudi land. If logs have been exported the plaintiffs seek an order preventing the company and the 2nd defendants from using the proceeds of sale of such logs pending further court order.

It is plain on the material relied upon by the plaintiff that the Lakuili clan has been divided into sub clause with conflicting interests. As a consequence of the similarity of interest in lands and claims by the same tribal and clan groups and company involved in proceedings cc. 29/2007, these two matters have been heard together by consent of the parties.

Mr. Atomae for the plaintiffs has explained that a Chiefs decision given on the 12 February 2007 supports his clients claim.

Both Mr. Nori and Mr. Levo dispute the veracity of that purported Chief’s finding, for that it cannot supercede the earlier CLAC decision affecting the particular parcel of customary land, nor can it affect ownership of registered land abutting the customary land. I find that I need not enter upon that argument, for the following reasons.

What the company says in its defence is that it has an agreement with two groups. As a consequence the company has crossed Laovudi and Tasivuvu customary land to access timber in another customary land block about which there is no argument. The plaintiff argues that the company had no right to enter the named customary land blocks, whether for access or to fell trees to facilitate access for that the plaintiffs claim ownership to such land because of the Chief’s decision. The company denies any such trespass, since it entered upon such lands to access the hinterland blocks under agreement with the landowners, relying as it did, on the fact that the parcel of land closer to the sea coast was registered land owned by one Joseph Perole who was also the owner in custom to adjacent customary land and the next contiguous block owned by the Lakuili tribe of Tamboko had, by its customary custodians, also agreed to allow the company ingress and egress across such land to facilitate the logging of an adjacent licence block.

The first agreement is that given by Mr. Joseph Perole. Mr. Nori has pointed to documents filed which show Mr. Perole has registered land closer to the sea where the companies log pond has been built.

Mr. Perole also has evidence of customary ownership of adjoining land by virtue of a CLAC decision which deals with a land parcel running from the Pupuku River, northwards.

The second group, represented by the 2nd defendant Steven Matae’kavi claim to represent the Lakuili clan in relation to land described as Laovudi and Tasivuvu land. The second agreement, then by the company related to this other land parcels for that the company apparently satisfied itself that it could deals with 2 ladies who by custom represented Lakuili Clan interest in that customary land and the company executed an access agreement over these land blocks for valuable consideration with those two ladies Mensensa Botho and Mary Ramo. Mr. Nori points to the material in the affidavit of Bernard Garo which gave meaning to the womans right to sign the access agreement on behalf of the customary landowners.

As I said earlier, the Lakuili clan has obviously fallen into disparate parts and Mr. Atomae was anxious to rely on the Chief’s decision to show that was so.

The Chief’s decision found that land Laovudi sub divided into 2 blocks – Pupuku going inland belongs to Lakuili of Tamboko headed by Steven Matakai, so the basis of the plaintiff’s claim for injunctions even were I to accept the Chief’s decision is unfounded for the two woman’s interest are clearly described in the access agreement and there is no apparent dispute with that part of the Chief’s decision.

The latter part of the Chief’s decision, dealing with land from Pupuku to the sea is a decision contrary to existing law for the CLAC decision about the customary land and the registered land are in favour of Joseph Peroni. There must be sufficient doubt created by these conflicting claims for this court to refuse to make the injunctive orders sought.

This is not a question relating to logging licences. There can be no argument about the balance of convenience; for it is plain the right to grant access signed by the 2 ladies is based on customary law. The CLAC decision has not been shown to have been overturned on appeal and must stand in the plaintiff’s favour, since the 2 ladies are the customary representatives of the tribal landholding group. The registered land portion clearly is that land of the proprietor, Joseph Peroni of the Lakuili tribe, also of the second defendants group.

Clan members should not seek to usurp customary resolution of disputes amongst clan members by coming to the High Court to seek intervention in this fashion.

Where there is a valid dispute, a dispute relating to the respective interest of clans members, the HC has no jurisdiction to entertain that argument. No doubt the tribe recognises whether or not these persons seeking to usurp the function of the customary dispute resolution process amongst the tribal elders by coming to this court have rights to seek to interfere in this case.

But to come in this fashion when the company has attempted dealing with proper persons clothed with ostensible authority to speak and sign for the clan shows a misunderstanding of this court’s process regarding injunctions involving customary owners.

The order sought in the summons of 16 February 2007 is refused. The summons is struck out. The plaintiff shall pay both defendants costs of the hearing.

It is appropriate since the plaintiff has not shown the 1st defendant relies on any logging licence to enter Laovudi land, that this court decline the relief sought in the originating summons, paragraph 14 (1) to make the declaration claiming breach of the licence terms.

It follows that the declaration in para 14(2) has no basis in fact and the court declines to make such declaration. Since subparas, 3, 4 & 5 rely for their efficacy on the making of declarations accepting breach of logging licence in subparagraphs 14(1,2), the court declines to hear those claims and strikes out the pleading.

There are consequently no further claims of the plaintiff in cc. 47/07. The defendants shall have their costs of the action to date. Counsel should prepare minutes of orders in cc. 29/2007 to take account of these findings. I give liberty to apply.

THE COURT