Chachabule v Qoanahai Integrated Development Ltd [2007] SBHC 64; HCSI-CC 192 & 495 of 2006 (18 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 192 of 2006 & Civil Case No. 495 of 2006

AMOI CHACHABULE

v

QOANAHAI INTEGRATED DEVELOPMENT LIMITED AND OTHERS

Date of Hearing: 13 December 2006
Date of Ruling: 14 December 2006

Mr. Hou for the Plaintiff
Mr. Philip Tegavota for the 1st Defendant
Mr. Thomas Kama for the Defendant 2nd Defendant
Attorney-General for the Commissioner of Forests (no appearance on the day)

RULING on application to discharge interim injunctive orders

Brown, J: I propose to deal shortly with the 1st defendant application by summons to set aside an earlier ex parte injunctive orders, notwithstanding the absence of the Attorney for no material has been filed by the Attorney, material relevant to the questions before me today.

Mr. Tigulu conceded that, in the circumstances the order may not stand if the factual situation is seen by the court to sit on all fours with the factual situation found in Sogati’s case. Mr. Tigulu sought to distinguish Sogati’s case to satisfy me that even was I to discharge those earlier orders, on the facts in the plaintiff’s affidavit, there is a serious question to be tried in relation to the ownership of Davala land.

There is on the plaintiff’s first application seeking orders of certiorari, no real basis for the interim injunctive order. It was merely a plea for such injunctive orders pending suit.

It follows that the injunctive order of the 4 July 2006, given ex parte by my brother judge Naqiolevu need be set aside after hearing the parties today.

I am not minded to continue that earlier order nor to make fresh injunctive order, for I am not satisfied that the plaintiff’s claim to such injunctive order is sufficiently weighty as to affect the status quo where the 1st defendant has the licence to log under hand of the Commissioner of Forests. It consequently follows that the 2nd defendants authority to enter Davala land relying as it does on the 1st defendants licence, is confirmed by this order.

The balance of the 1st defendant’s application, to dismiss the plaintiff’s claim to the prerogative writ of certiorari coupled with the plaintiff’s later summons to join his more recent claim to a declaration or right shall be reserved for judgment.

Application for injunctive orders to prevent the plaintiff’s from interfering with the defendant’s logging licence

P. Tegavota for the Plaintiff
A. Nori for the 1st and 2nd Defendants with C. Ashley as Instructing Solicitor
Acting Attorney-General in person

Date of Hearing: 2 January 2007
Date of Ruling: 2 January 2007

Brown, J: This matter is one where the 1st defendant and the 2nd defendant, its logger, Omex, seek injunctive orders directed to the plaintiff and his associates to restrain them from preventing the defendants logging a parcel of land called Davala land about Roviana Lagoon.

On the 14th December last, I made Orders setting aside earlier ex parte orders preventing the defendants from logging given by my brother Judge Naqiolevu on the 4th June 2006, for that such application had never been set down for inter-party hearing until it came before me in December. At the time I gave short reasons which related to the absence of grounds for the plaintiff’s application in the first place, facing as the plaintiff did, the fact of a logging license in the 1st defendants favour given by the Commissioner of Forests in terms of the Forestry Act.

Since then the parties’ disputation had escalated. Consequently my Orders of the 14th December cleared the way for the defendants to commence logging in the disputed parcel, but the Orders have had the effect of again causing violence.

Consequently the defendants now come in an endeavour to have their logging license effectuated. Mrs Tongarutu, the Attorney General appears today, (although not having appeared on the 14th December) and says there may well be issues over the licence but that the Attorney needs further time to enquire of the Commissioner of Forests.

It is clear my Orders of the 14 December which accepted the fact of the logging licence held by the 1st defendants as affording the defendants the right to log have not have not been complied with through the actions of the plaintiff.. It is pointless, where the Court Order has been disregarded, to consider further injunctive order. There is no likelihood that the plaintiff’s will take any further or greater notice, and the efficacy of further Court Orders in these circumstances must give pause to this court when it is asked to again make injunctive orders supposedly stopping people from behaving as they have.

I am not minded to pursue by Order what is clearly unsustainable. Whether any further proceedings in the court will bring resolution between these conflicting parties, a conflict obviously rooted to what they see as customary rights, must remain for a later time.

But what is plain is that further Order would only exacerbate the already heated exchanges between these peoples.

Without some assurance (which clearly is lacking) that resolution of disputes will be conducted in the manner provided for by Court process, it clearly behaves me to refrain from making further Orders.

The application shall stand over to the 2nd Friday in February for further mention.

My interim Orders of the 14th December (which have not been complied with) will remain in effect but the Court cannot expect resolution on the basis of those interim orders.

It is apparent that the defendant would be wise not to rely on such interim orders pending further hearing of this suit for it is readily apparent the plaintiff will ignore them.

Costs shall be in the cause.

ORDER

1. First defendant’s application for injunction refused.

2. For further mention on 2nd Friday in February.

3. Costs of the application shall be costs in the cause.

4. Interim Orders of 14 December 2006 continued in force.

Civil Case No. 192 of 2006 (in conjunction with 495 of 2006)

Date of Hearing: 08, 13 & 14 December 2006
Date of Ruling: 18 May 2007

D. Tigulu for the Plaintiff
P. Tegavota for the 1st Defendant
T. Kama for 2nd Defendant
(Attorney-General absent on hearing)

RULING on defendant’s motion to strike out plaintiff’s claim for prerogative writ for lack of standing

Brown, J: A summons of the 1st defendant (who claims the right to log by virtue of a logging licence no. A1055) and the 2nd defendant (the logger contracted by the 1st defendant whose rights to remain on the land depend on the 1st defendants claim) seeks to dismiss the plaintiff’s claim to a prerogative writ of certiorari to quash that logging licence. The defendants say the plaintiff lacks standing. As well, the defendants ask that an earlier order stopping them logging given ex parte (without their knowledge) on the 4th July 2006 be set aside.

On 14 December I discharged that earlier ex parte order for it was given in circumstance where leave only having been granted by my brother judge to apply for certiorari to quash the Commissioner’s licence, the plaintiff had no right in law to an injunctive order in a case of such nature.

I gave reasons but continuing interference with the defendants’ attempts to log brought the matter back to court on the 2nd January 2007 when I continued in force my interim orders of the 14 December pending decision on the defendants’ summons to strike the plaintiffs claim for lack of standing.

It is that claim to strike which I address.

The defendants’ case is principally detailed in the factual material in the affidavit of Burnley Kimitora who is the Managing Director of the 1st defendant.

He asserts that the 1st defendant has a valid licence from the Commissioner of Forests, and that licence relates to Davala customary land.

Chronology of Process under Forestry Act

In October 2002 Mr. Ezekiel Mateni had cause to be sent to the Provincial Secretary, Western under the letter of the Chief Forest Officer, a Form 1 application for approval for negotiation to acquire timber rights.

To ascertain who are those lawfully able to grant timber rights, the Provincial Executive is required to hold a timber rights hearing of the proposal of Ezekiel, affecting Muku Muki, Davala and Riki customary land. It appears amongst the signatories of "landowner trustees", one Ben Lomulo is listed for that list of some 10 signatories (it appears) accompanied the Form I application. Paragraph 6 stated the persons with whom "preliminary discussions have been made regarding landownership, timber rights and development proposals" were; Mr. Ezekiel Mateni and Mr. Medana Hagere. There is no need for me to consider the capacity in which these two named persons claim interest.

On the 3 April 2003 after a "timber rights acquisition hearing" the Executive determined;

"The Western Provincial Executive therefore by majority approved Mr. Ezekiel Mateni’s application for timber rights acquisition for Riki, Davala and Mukimuki customary land, Vangunu Island. The Executive further approved that Mr. Ezekiel Mateni must include the provincial executive during the negotiation for agreement so that the appropriate government will participate in the initial development program in accordance with section 5 c(3)(e) of the Forest and Timber Utilisation Act".

(It would seem the Executives reference to s. 5c (3)(e) may have meant to be that s. 8(4)(b) of the Forest Resources and Timber Utilisation Act (Cap. 40) as amended).

On the 18 April 2003, the Deputy Provincial Secretary, Eric K. Ghemu sent to the Commissioner of Forests the determination under covering letter which noted "after the objected land, Riki land was demarcated out from the boundary of Davala land and Mukimuki Land respectively".

Mr. Ben Lomulo was, (as shown by letter of appeal dated 15 April 2003 addressed to the Clerk, Western Customary Land Appeal Court) aggrieved by the determination, and listed two grounds of appeal, the principle ground being that Busimati tribe, whom he represents owns Davala land, and consequently the finding that the other named two persons are able to grant timber rights was wrongly decided by the Executive.

There were other appellants for by letter of the 28 April 2005 Mr. Seri Hite wrote to the Secretary, Customary Land Appeal Court (Western) Gizo formally withdrawing his appeal.

That formal withdrawal referred to a Memorandum of Understanding between Ezekile Mateni, Medana Hagere of one part and Seri Hite Eroni of the other part whereby by amicable agreement for reasons set out, Seri Hite’s appeal was withdrawn. I should say that Ben Lomulo, not having been a party to any such agreement is unaffected by what these parties may decide amongst themselves, about Seri Hite’s appeal.

The appeal of Ben Lomulo was heard and Judgment given by the CLAC on the 17 October 2005 ("in the appeal of Ben Lomulo against the Executive’s finding in favour of Ezekile Mateni "). The CLAC named both Ezekiel and Mendana Hagere as respondents to the appeal.

The CLAC quashed the determination of the Executive, heard the matter afresh and identified Ben Lomulo as the person entitled to grant timber rights on a portion of land called Davala.

Then came a number of happenings which has caused confusion and misunderstanding giving rise, it appears, to these proceedings.

On the 15 November 2005, the Principal Magistrate, correctly referred the CLAC decision of Ben Lomulo’s appeal 11/03 to the Commissioner of Forests and referred to the judgment sent in his earlier letter dated 8 November 2005.

He also certified that Mukimuki/Davala/Riki appeal 12/03 was withdrawn.

It is plain then that the Principal Magistrate, as Clerk to the CLAC is certifying the fact of the judgment of the CLAC of the 17 October 2005. This certification has a most important result. By s. 10(3) the Clerk of the CLAC shall inform the Commissioner and the appropriate Provincial Government of the fact of such final determination and forward a copy of the judgment. Mr. Maina’s letter of the 15 November 2005 is expressly in those terms.

By s.10 (2) of the Forestry Act the decision of the CLAC "shall be final and conclusive and shall not be questioned in any proceedings whatsoever".

The Court of Appeal decision (Civil Case No. 2/04) (Court of Appeal Judgment dated 12 April 2006 in the matter of Steven Veno anor v Oliver Jino) at para. 12 recognises the exclusivity of the CLAC decision, in these words-

"It is worth noting that, if there had indeed been a decision or order within the meaning of sub-section 10(2) of the Forest Resources Act, that provision would have prevented the Local Court from hearing any dispute as to the matters heard and determined by the CLAC. It may be also noted that the sub-section is wide enough-by the generality of the words "any proceedings whatsoever" – to comprehend and thus prevent a consideration by the Chiefs of a customary land dispute raising the same or cognate issues".

As so often happens, the various persons who are aggrieved by the CLAC decision come to this court claiming rights as owners of the land to stop what they see as an unlawful intrusion and trespass upon their land. In this plaintiff, Chachabule Amoi’s first affidavit he claims rights as a member of the Davala tribe that owns Davalia land.

He says his tribesmen attempted to stop the defendants (who did not have his permission) from landing logging equipment and machinery on their land.

The grounds relied upon for the application for writ to quash the logging licence raises a different issue.

The grounds claim that the 1st defendant Qoanahai Integrated Development Limited did not follow the procedure for the grant of timber rights for the company had not lodged any Form 1 application (as had Ezekiel Mateni so long ago) with the Commissioner of Forests nor had any timber rights hearing been held in respect of any application by the 1st defendant relating to Davalia land.

I propose to deal with this last issue. There was considerable thought given by the Commissioner of Forests to whether or not he should act on the complaint of the plaintiff.

For the Commissioner of Forests by letter of instruction dated 30 May 2006 (annexed to the Attorney-General’s affidavit of the 8 February 2007) clearly supported the plaintiff for that the company now with the licence (the 1st defendant) "did not go through the timber rights process required under the Forestry Act".

In that letter, at paragraph 4, the Commissioner says "where the applicant is different in Forms I and II the whole process of acquisition should be reported again. In accordance with the facts stated above, the Forms I and II were in the name of Ezekiel Mateni and not Qoanahai Integrated Development. Qoanahai Integrated Development should be therefore rely on Ezekiel Mateni’s Forms I and II but rather enter into a new fresh application over Davala Land."

I regret to say that this view of the Commissioner, although reached in good faith, does not accord with the facts. There had been a timber rights hearing on Mr Mateni’s application. In accordance with Forestry Act, a determination was made by the Provincial Executive finding that Mr Mateni was one able to "represent all the persons, lawfully entitled to grant such rights." This was not a case where no agreement had been reached with landowners, envisaged by S.9 but one where agreement had been reached for that the landowners were willing to negotiate for disposal of their timber rights to the applicant. That determination was appealed, as provided for by the Act. I have set out the Judgment of the CLAC.

That finding, which follows the appeal, in terms of S.10(1) of the Act, identifying Ben Lomulo as a person to grant timber rights on a portion of land called Davala, is protected by S.10(2). It follows that the person so named, Ben Lomulo is the person and by implication represents all the persons lawfully entitled to grant timber rights. It would be possible for Ben Lomulo to dispose of the timber rights over Davala land to Ezekiel Mateni, but Mr Lomulo chose not to do so. He chose to grant rights to Qoanahai Integrated Development Company. This course was available to him since his right to act is protected by the CLAC finding. He is not obliged to grant timber rights to the original applicant for the discretion resides in Ben Lomulo. Ezekiel Mateni cannot claim, nor does he, a right to receive the benefit of the assignment of timber rights for any such claim must adversely affect the discretion in Ben Lomulo to deal with such right to assign as the "land trustee." The plaintiff cannot impugn Ben Lomulo’s right to assign timber, either for the CLAC has determined Ben Lomulo as the lawful "land trustee" to represent all landowners, including the plaintiff, whether he agrees with the CLAC or not.

The Court of Appeal, in Veno’s case recognised the discretionary right in Ben Lomulo to choose the licence holder and assign or sell such timber rights, subject to the Commissioner’s consent. For at paragraph 5 of that judgment the Court said –

"It should be noted by way of context that, in the meantime on 26 March 2003, the proposed landowners and the objectors had written to Omex "revoking" any "authority, consent and permission" to Omex to acquire timber rights and declining to negotiate further with it over timber rights. This was followed on 17 April 2003, namely, after the consent judgment, by another letter in similar terms. The land trustees entered into negotiations with the second respondent (Orion) in connection with logging operations on Havahava land. On 22 April 2003 the land trustees lodged a submission with the Commissioner for the purpose of enabling negations with Orion. On 23 and 28 April 2003, they met with the Commissioner to discuss the matter. His consent was obtained for a timber rights agreement to be entered into with Orion. This agreement was signed on 29 April 2003 and a licence issued to Orion under the Forest Resources Act on 9 May 2004".

Of course in this matter before me, no other company or person had been named in Ezekiel Mateni’s original application as a "timber exporter or sawmiller" (S.7 (1) of the Act).

As I have said, Ezekiel Mateni had not nominated his status (whether owner or timber exporter) in Form I except that in paragraph 6 he nominates himself and Mr Mendana Hagere as persons and/or Landowning groups with whom preliminary discussions have been made regarding ownership, timber rights and development proposals. What is plain, by virtue of S.10 (2) is that his status to represent the persons entitled to grant timber rights has been denied by the CLAC finding.

On the 21st February 2005 in accordance with the Commissioner’s recommendation, the Provincial Secretary certified the sale of timber rights over Davala customary land by Ben Lomulo and by letter of the 24th February the Commissioner of Forests awarded a felling Licence No. A10554 to the assignee of the timber rights, Qoanahai Integrated Development Company Ltd and that licence was expressed to take effect on the 1st March 2006, to expire on 1st March 2011.

The Commissioner’s more recent apparent retraction of such consent rather mistakenly considered that Ben Lomulo was obliged to recommence the timber rights acquisition process. That is not necessary in the circumstances of this case, for Ben Lomulo has the protection of S. 10(2) and had validly assigned (or sold) the timber rights which he holds as "trustee/landowner," to Qoanahai. That company, in the absence of fraud, neither suggested nor shown, had taken a licence issued by the Commissioner. I find that the company had substantially complied with the timber rights process and took a valid assignment of the timber rights from Ben Lomulo. The Commissioner’s concerns are misconceived but perhaps owe something to this Plaintiff’s claim to own part of, or the Davala land.

The company sent a Form I to the Commissioner of Forests. This was unnecessary, since the "process" of the Act had progressed past that stage. Ezekiel had initiated the "process" by his Form I and the subsequent acts of the Executive (in holding the timber rights hearing); the appeal and the judgment of the CLAC took that process to the stage where the Commissioner had then to satisfy himself of the feasibility and adequacy of the logging proposals of the "land trustee" Ben Lomulo. The Commissioner’s comments concerning the need for Ben Lomulo to again convene the Executive’s timber rights hearing misapprehends, so I say, the intent of the Act.

Once a valid Form I (and that must be presumed in this case for the Commissioner and the Provincial Executive acted upon it) by Ezekiel had initiated the process, the Act provides for the steps which follow. It was unnecessary for the company to send a Form I to the Commissioner since that may have raised the doubt in the Commissioner’s mind, a doubt reflected in his "letter of instructions" to the Attorney-General, that the process needed to be recommenced from the beginning, but that was not the case, here. Once the Commissioner was satisfied that his procedural and regulatory requirements for a valid licence were in place on Ben Lomulo’s application, he was at liberty to issue the licence. His concerns are not with the identity of the person or persons with the right to assign timber, but with the appropriateness, or otherwise of the logging proposals of Ben Lomulo. The issue of the licence, in this case, satisfied me that the regulatory needs on the Commissioner’s part had been met. His concern for the interests of other landowners, in this case misapprehends his obligations under the Forestry Act. Other landowners concerns are properly raised in the course of the "process" by way of appeal and have in this case been resolved by the judgment of CLAC. If in the opinion of the Provincial Executive, logging should not happen (for that disputation will obviously follow), then the Executive can refuse to countenance the proposal. That unfortunately does not happen often, despite the multitudinous problems logging causes in the community of tribes.

The CLAC decision does not purport to identify the owners of this particular parcel of customary land but addresses the issue raised by S.8(3), particularly the question whether Ezekiel Mateni the person found by the Provincial Executive, is the person who is able to represent all the persons lawfully entitled to grant timber rights. (It is often presumed that all landowners have inherent rights to growing timber on their land).

That is why those who assert ownership often style themselves as "land trustees". But for commercial expediency and with a view to circumventing the impossibility of a binding, lasting consensus amongst a disparate group of landowners (whose views and alliances often change over time) the Forestry Act has imposed a process to identify an individual or individuals able to contract and represent the interest of all landowners in logging agreements. That process does not purport to affect landownership but it does afford a developer or logger certainty of agreement with the duly appointed representative who remains responsible as land trustee to all other landowners of the portion for a fair distribution of benefits received according to customary entitlements of those landowner claimants. Once the licence has issued without fraud the rights of the other landowner claimants lie against Ben Lomulo the "trustee landowner" and those rights may be pursued in customary forums. This Court has no part to play in that disputation process. The conflict then between the statutory regime of the Forestry Act and the plaintiff in this instance is a manifestation of the breakdown in tribal group relations when complicated commercial relations are attempted, commercial relations where the business proposed must reflect complex rules to manage the start up cost involved and the large financial benefits which will flow if the business is successful. Representatives of these tribal groups need be found for system made law to achieve the resolution of disputes in all but the very simplest of communities.

The plaintiff’s claim to be a landowner is not the issue. The plaintiff has not satisfied me that the 1st defendant has no right to assign (or sell) the timber rights. Nor is there any material to show that the assignment to the 2nd defendant is beyond his power.

The reservations expressed by the Commissioner of Forest are reservations based on a misunderstanding of the process of appeal provided for by the Forestry Act and consequently his licence to log has validly issued and may not be impugned by this plaintiff who claims as a landowner and not as a party to the licence. The Commissioner’s reservations do not and cannot amount to a revocation of such licence, on the facts which I have found. To use the words of the Court of Appeal in Veno’s case (at paragraph 12); that sub s. 10(2) of the Forestry Act "is wide enough to comprehend and thus prevent a consideration by the Chief’s of a customary land dispute raising the same or cognate issues." It follows that proof of customary ownership of land does not per se oust the effect of the judgment of the CLAC giving Ben Lomulo rights to (assign) timber over Davala land as "land trustee". For the issue of ownership has been one of the matters taken into account on the timber rights hearing but not the exclusive matter which led to the finding and determination under S.8 (3) (b) by the CLAC of Ben Lomulo as the "land trustee".

The plaintiffs grounds in his amended statement under O61 (2) of the High Court Rules have not been made out. The plaintiffs claim to impugn the timber rights process under the Forestry Act as "a landowner" has no basis in law in the circumstances here.

The plaintiff’s summons for relief seeking the prerogative writ of certiorari to quash the logging licence No.A10554 must fail. That summons is dismissed.

My earlier orders deal adequately with the interlocutory orders originally granted 4 July 206 for they were discharged.

I give liberty to apply. The plaintiff shall pay the defendants costs.

THE COURT