Majoria v Jino [2008] SBHC 54; HCSI-CC 225 of 2005 (16 May 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 255 of 2005

HAVEA MAJORIA
(representing the Kadiki Tribe of Vangunu Island, Marovo, Western Province)

V

OLIVER BIKOMORO JINO
(representing the Bareke tribe of Vangunu Island, Marovo, Western Province)
(1st Defendant)

AND:

ATTORNEY-GENERAL (representing the Clerk to the Customary Land Appeal Court (Western Province)
(2nd Defendant))

(R. FAUKONA, J.)

Date of Hearing: 30th April 2008
Date of Ruling: 16th May 2008

James Apaniai for the Claimant
Maelyn Bird for the First Defendant
Robert Firigeni for the Attorney-General, 2nd Defendant

RULING

FAUKONA PJ.

1. The application is by way of originating summons seeking injunctive orders. The case first went before Justice Brown on 22nd September 2006. On 22nd November 2006 Justice Brown ruled by refusing to grant declaration sought in paragraph 2, 3 and 4 and refused the injunctive orders sought against 1st defendant. In the same ruling, he directed that the Western Customary Land Appeal Court, refer to as (WCLAC) to further entertain the 1st defendant’s appeal against the finding of the Western Provincial Executive refer to as (WPE) of 18th September 2003, in having the claimants and others as lawfully entitled to grant timber rights over Rodo land, and make a decision on the outstanding issues raised by the notice of appeal.

2. That ruling was appealed against by the claimant to the Solomon Islands Courts of Appeal. The Court of Appeal in its judgment of 1st November 2007, reinstated the summons No. 255 of 2005, and remitted the matter to the High Court to determine in the light of evidence tendered by the parties[1]. It also directed that the appeal against the decision of the WPE of 18th September 2002, be remitted to the WCLAC for hearing[2].

3. After lapse of time circumstances have changed, Mr. Apaniai was granted leave to amend the orders sought for relevancy purposes. The orders the claimant now sought are:

4.

1. That effective from the date hereof, the First Defendant, his

servants, agents and logging contractor are restrained from entering, remaining in and/or carrying out any logging activities of whatever nature within disputed area, namely, the area between Nama River and Punuta River including the area known as Havahava land (the "Disputed Area") as shown in Exhibit "HM9" of the affidavit sworn by Havea Majoria and filed herein on 13th May 2005 until trial or further order of the Court;

2. That notwithstanding Order1, the First Defendant shall haul all log, now felled as at the date here of to its log pond and sell such logs provided that the First Defendant, his agents and servants shall pay the proceeds thereof (less 25% export duty) into a joint trust account to be opened in the names of the Claimant and the First Defendant or their Solicitors within several days from the date of export of the logs.

3. That, except as provided for in Order 2 above, no deduction whatsoever shall be made from proceeds payable into the trust account under Order 2 without the approval of the Claimant.

4. That the First Defendant, his servants, agents, relatives and logging contractor remove all their machines from Rodo land, including the disputed area, within seven days after the date of the sale of logs pursuant to Order 2 above.

5. That the 1st Defendants, his servants, agents or contractors, within 14 days from the date hereof file and serve on the Solicitors for the Claimant as sworn statement providing an account of all the marketable trees felled on the said Rodo land, including the so called Havahava land, from August 2006 to the date hereof providing details:-

(a) species, quantity and price of logs already exported to the date hereof; and,

(b) species quantity and price of the logs felled but not yet exported as at the date hereof.

6. That a penal notice be attached to paragraphs 1, 2, 3, 4 and 5.

7. Cost in the cause

8. That the substantive application for interim orders sought in the amended application be adjourned to.....

5. An interim injunctive relief is a discretionary relief which this court will exercise its discretion whether to grant or refused. Court will allow upon being satisfied that there exist triable issues or issues which are yet to be resolved. In other words there must be a live and existing issue and serious which parties have yet to resolve in court. The rationale for granting interim injunctive orders is to maintain the status quo until the issue or issues are finally decided by the court.

6. Customary Land Ownership Claim

The Claimant claim ownership of Rodo Customary Land as belong to him and his Kadiki Tribe. The boundary is between Nama and Punuta rivers. That boundary can be identified on paragraph 5 of Form 1 application by Rodo Development Company and dated 26/31/2002 (see Exhibit "HM1" to Havea’s affidavit). The same land and boundaries was given to the Claimant by the Marovo Council of Chiefs on 7th August 2003 (see Exhibit ":HM9" to Havea’s affidavit).

7. It is that very land, upon determining the Form 1 application that (WPE) determined that the Claimant and nine others are the person, lawfully able and entitle to grant timber rights in t he land. Undoubtedly it must; of course, the same land that the Commissioner of Forest issued felling licence No. A10202 on 18/5/05 to Rodo Development Company to carry out felling and logging activities.

8. On the other hand the 1st Defendant claims ownership of Havahava land. It belongs to his tribe Bareke. That claim is reflective in Form 1 application lodged by Omex Limited on 20th June 2002. Paragraph 5 spells out the boundary as between Nama and Laveacha rivers. (See exhibit "ALMI" to Andrew Murray’s affidavit). It was that land of which the (WPE) determined that Albert Legere, John Legare, Michael Honda, Stanley Siki and Andrew Lanoa as person lawfully able and entitled to grant timber rights. An appeal was lodged with WCLAC which subsequently discontinued by the appellants and consented to their common terms. That consented order and conclusion was endorsed by WCLAC. The consent judgment identified the 1st Defendant and five new Members and excluded those WPE identified except for Andrew Landa.

9. That claim was again reinforced by the Marovo Council of Chiefs refer to as (MCC) in its decision dated 18th September 2003 (See exhibit "AC7" to Andrew Murray’s affidavit), awarding ownership of Havahava customary land with the boundary from Nama to Taveacha rivers to the 1st Defendant and tribe.

10. Through legal processes accepted by this court, and approved by the court of Appeal in Veno and Young’s case,[3] the Commissioner of Forest issued a felling licence No. 10215 on 9th May 2003, to Orion Limited to carry out felling and logging activities on Havahava land.

11. So distinctive as it may, the two timber rights processes emanated from two customary land claims which led to subsequent issuant of two felling licences. However, it is quite important to note that despite issuant of the two licences the Rodo Development Company Licence will certainly operate overlapping the licence for Havahava land, an area the two licences shared. In my view that could not have been possible had the institutions entrusted to perform their task; did it vigilantly and with cautiousness.

12. Triable Issues

From the claims and from what were stated in the affidavits and submissions, the Claimant denies the existence of Havahava land where the 1st Defendant is currently carrying out logging activities. He said it is part of Rodo land. The 1st Defendant said that Havahava land is a separate land from Rodo land and the boundaries are distinctive. Havahava land boundary is from Nama river to Taveachea river and he and his tribe owns it, and Rodo land boundary is from Taveahea river to Punuta river and it is own by the Claimant and his tribe. A claim which the Claimant denies and stated he owns Rodo land with boundaries from Nama River to Punuta River.

13. That argument alone is identified as customary triable issue. It is a dispute related to ownership, in particular Havahava customary land. If Havahava land does exist then the boundary between Havahava and Rodo lands are also in dispute; a customary triable issue as well.

14. As His Lordship Palmer J said in Veno and Young’s case[4]:-

"In so far as customary issues enumerated in this judgment are beyond the jurisdiction of this court, that the proper forum for dealing with such matters is before the Chief and the Local Courts, this court nevertheless has power to grant relief by way of injunctions as an aid to the exercise by a local court or customary land appeal court in its jurisdiction to decided such disputes. Such injunctive relief is designed to facilitate the determination of ownership issues in the local court or the customary land appeal court".

15. What His Lordship was saying is that this court has the power to grant interim injunctions to enable the Local Court or the Customary Land Appeal Court conduct their sitting and decided on the customary issues pending before them. See Gandly Simbe v East Choiseul Area Council Eagon Resources Development Company Limited, Steven Taki, Peter Madad[5].

16. This led to other issues raised by Mr. Apaniai. That there is a case pending in the local court, a referral case by the 1st Defendant from the decision of the Marovo Council of Chiefs in respect to Rodo land. Addition to that is the directive by the Court of Appeal referring an appeal from WPE determination in regards to Rodo timber rights hearing for the WCLAC to rehear. Whilst those two cases are still pending the ownership issue which have to be determined by those courts has yet to be finalised. Therefore it is appropriate an injunctive relief must granted.

17. Issues of Locus Standi

Ms. Bird argued that the Claimant has no standing to bring this summons to this court. He was present at the time when WPE considered Form I application by Omex. He did not advance any objection, nor filed an appeal against the decision of (WPE). On 7th August 2003 he went before the MCC and he was awarded ownership of Rodo Customary Land including Havahava land. And then on 13th May, 2005, he filed an original originating summons to commence this proceeding. He has been sitting on his rights, and has failed to respond to the requirements of law.

18. Mr. Apaniai refuted what Ms Bird has submitted. He agreed that Claimant was present during part of the hearing when WPE heard the Form 1 application by Omex Limited. He conceded that he did not object because he was not a party to that case and therefore cannot lodge and appeal to WCLAC as well.

19. Before the WPE had a meeting to decide on matters set out in S. 8(3) (a) to (e) of the Forest Resources and Timber Utilisation Act (FRTUA) Cap. 40, there must be a notice under S.8(2) of the Act advertised for persons who reside within such area and appear to have an interest in the land, trees or timbers in question, to attend and where necessary make objections. The notice normally contain the names of the propose landowners, and the land upon which logging will occur with clearly demarcated boundaries on a map.

20. I have no doubt, before the Claimant attended the WPE meeting at Seghe, he knew the names of the propose landowners, he knew Havahava land was involved with clearly marked boundaries. He chose not to involve and make any objection. May be he did not wish to join in or may be he had no interest in the land. Which ever course he elected, one thing is certain, he had sworn an affidavit on 28th April 2008, paragraphs 20 to 27(f) admitting in his previous affidavit in Civil Case No. 261 of 2002 stating that the boundary of Rodo land starts at Taveacha River and ends at Punuta River. Now in his current affidavit he retracted that the boundary was wrong after consultation with his tribe. That the statement he made was upon instruction of Mr. John Laghere, the uncle of Mr. Murray.

21. In Solomon Islands history and genealogy connected to ownership of customary land and its boundaries, is normally one. There cannot be two. And these histories are passed down from one generation to another in all perfection and accuracy, without being swayed whatsoever. One cannot collect histories from others. It is something belongs to a tribe and they treasure as sacred and only members of the tribe will learn and know.

22. Realising he was wrong, the Claimant went to MCC to re-mend his wrong by reinforcing that the Rodo land had been given to his grandfather, Rikana by Ngatu. However the problem with Ngatu case is that the boundaries of Rodo land were not defined though later was done by the Marovo Council of Chiefs. Eventually he won in the MCC in the absent of 1st Defendant.

23. A very significant point to note is that, the Claimant has swayed in evidence connected to an important point; the boundary of Rodo customary land. Traditionally, such evidence lacks merit. The affidavit had been filed as evidence and was on record. Though attempt may be made to retract, in traditional Solomon Islands perspective, that will always leave room for doubt.

24. It may well for this reason that the claimant did not wish to involve or raise objections at the WPE hearing, knowing that Havahava and Rodo customary lands are two separate customary lands. And for this reason as well, it is my humble view, that it weakens the claimants standing in this case.

25. The Pending Appeal before WCLAC

When this application first came before this Court, Brown J made a ruling on 22 November 2006, refusing to grant injunctive orders and directed WCLAC to rehear the appeal from WPE determination. That ruling was appealed by the Claimant. On 1 November 2007, the Court of Appeal ordered that this application be reheard and affirmed the direction made by Brown J for the WCLAC to rehear the appeal, as it failed to comply with S.10 of Forest Resources Timber Utilisation Act.

26. After Brown J's direction the WCLAC rehear the appeal again on 23rd December 2006 and made a determination to that effect, that Ben Lomulo is the person representing his tribe, lawfully and entitled to grant timber rights on Rodo customary land.

27. Despite the Court of Appeal’s order made late in time, the WCLAC had made a decision. It did not change the position in Brown J’s directions. Therefore, there is no point to direct the WCLAC to rehear the case again for the 3rd time.

28. What matters now is the effect of that decision, unless an aggrieved party has appealed, must come to play, as it has full bearing on this case.

29. If WCLAC had fulfilled the duties vested on it by complying with section 10 of the FRTUA, what then would become of the Local Court case which the 1st Defendant had filed a referral on 7th August 2003 against the decision of MCC and still pending determination by the Marovo Local Court. Can the parties in this case go behind and reiterate the same question in Marovo Local Court? What would happen to Mr Lomulo, will he be included as a third party in the Local Court proceedings? He was not a party to the Chiefs hearing.

30. The current law in regards to the inter-relationship with the three sets of acts, Local Court Act, Land and Titles Act and the Forest Resources and Timber Utilisation Act had been expounded in the Court of Appeal decision in Civil Case No. 36 of 2006[6]. Reference is made to paragraph 39 on page 20-21.

31.

...In the event that a decision was made by the Local Court in accordance with Lands and Titles Act as to any matter within the Court’s jurisdiction, including a decision as to the identity of the customary owners of any particular parcel of land, the decision is binding on the parties and has the same force and effect as any other decision of the court on any matter within its remit. There is nothing in either the Land and Titles Act or the Local Courts Act that suggests decisions as to customary ownership fall a special or distinct category, except of course, that there is a procedural requirement involving the traditional chiefs. Nor is there anything in the Forest Resources and Timber Utilisation Act that limits or qualifies the usual effect to be given to decisions of the Local Court as to customary ownership. Indeed, the fact that S.8(3) of the Act is aimed at the rights of disposal of timber and only incidentally though, it may be, necessarily – at the identification of customary ownership suggests that the opposite is the case. Consequently, if there is a local Court decision on the question of customary ownership that is binding on the parties in the conventional sense, they are estopped from seeking a different decision in respect of that question under the regime instituted by the Forest Resources and Timber Utilisation Act. Furthermore, S.254 of the Land and Titles Act (set out above) provides that the decision of the Local Court as to customary ownership is "final and conclusive, and shall not be questioned in any proceedings whatsoever......".

32. At that time the appeal was heard by the Court of Appeal, the WCLAC had already determined the appeal on 23rd December 2006, and had identified Mr Lomulo (one of the appellants) and his tribe had rights of disposal of timber. Unfortunately, there was probably no submission made available to the Court of appeal in this regard. On the same note there were probably no submissions in regards to the referral case made by the 1st defendant to the Marovo Local Court against the decision of MCC.

33. Before the WCLAC made its decision on 23rd December 2006, the second time, there were two cases pending. One was an appeal from WPE decision and a referral case from MCC. The issue before those two Courts are parallel to one another, that is ownership and extend of Rodo land and Havahava land. In my humble view whatever decision first made takes precedent over the other. The authority of the Court of Appeal in Civil Case No. 36 of 2006[7] on paragraph 4 quoted above and by S.10 (2) of the FRTUA which clearly stated:-

"........ the order or decision of a Customary Land Appeal Court on any appeal entertained by it under subsection (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

34. In the light of the changing circumstances and the law the decision of WCLAC is final and both parties are bound by it and the Marovo Local Court cannot entertain the same issue with the same parties.

35. I could have stopped here and make an ultimate ruling. However, I consider unjustified to do so. Therefore to accord a fair hearing I will venture further and discuss the Chiefs hearing. There are two chiefs hearing held by the Marovo Council of Chiefs. Copies of their proceedings were disclosed by parties. One is lodged by the Claimant and the other by the 1st Defendant.

36. Lodgement of Form 1 to Local Court

The Claimant’s case is the case the 1st Defendant has referred to the Marovo Local Court for hearing. Until then the case is still pending. The reason behind the Parliament passing the 1985 Local Court (amendment) Act, which is now entrenched into the Local Court Act, was to give power to the Chiefs to resolve customary land dispute between parties or tribes, in a traditional and amicable way. It has never been the intention of the Act, in performing this function the chiefs should function as a formal Court.

37. Traditional means of solving land disputes differs from area to area, island to island or even Province to Province. However, a familiar means of solving customary land dispute is for the two litigating parties to attend before the chiefs and chiefs will arbitrate between them.

38. Section 12(1) of Local Court Act says, that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that-

(a) the parties to the dispute had referred the dispute to the Chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the Chiefs in connection with the dispute.

39. It would be seen clear that paragraph (c) is a follow up from paragraph (a). Should a party aggrieved or dissatisfies with the Chiefs decision he should refer the case to an appropriate local court after complying with requirements of S. 12 (2) and S. 12(3) of the Act.

40. At this stage I feel it is not worth dealing with the issue of lodgement of Form 1 or referral of a case to appropriate Local Court by an aggrieved party. The Court of Appeal in Veno and Young v Oliver and Others[8] on paragraphs 13-21 had dealt with this diligently. (Also see Muna v Holland Billy and Another[9].

41. More importantly is that the decision reach by the Chiefs is expectedly to reflect that it is a traditional means employed and applied to the customary land dispute by the parties. Traditionally both parties must be present and have to present their case to the Chiefs and called upon them to arbitrate freely on the case before them.

42. If in the circumstances where one party does not appear and only one does, can the chiefs apply traditional means or ways to resolve the land dispute by both parties. If only one party attends, then there is no issue before the chiefs and no claims over customary land presented to the chiefs to resolve. Resolution in a traditional manner is well recognised and appreciated when two litigating parties attend and present their claims to the Chiefs to resolve. Any decision reach must be founded on traditional means and done amicably to promote peace and harmony within the Community.

43. To day, for some reason unknown, the chiefs Council in Solomon Islands operate like a formal court. When notice was sent to the other party and it fails to attend, may be once or twice, the Chiefs Council then proceed in the absence of other party and give a decision to the party attended. Is that traditional means of solving a customary land dispute? That exactly is the same as in a civil procedure adopted by the Courts. That upon prove of service on the defendant, and if he fails to attend, the plaintiff then apply for summary judgment. And judgment may be given to the plaintiff in the absent of the defendant.

44. Whether the Council of Chiefs have been aware of or not, paragraph (b) of S. 12(1) of the Local Court Act, has never been utilized. That section caters for circumstances where the Council of Chiefs attempted all traditional means to solve a dispute but could not able to succeed. Circumstances may be a party do not have confidence in the Chiefs to make a fair hearing, hence continue fail to attend, or that a mere ignorance of the Chiefs, or there is serious intensity between the parties and they could not able to come together, or there is a likelihood that physical confrontation will take place, or all the Chiefs within the locality involve by supporting one of the parties, and many more. This also applies to situation where notices are sent to both parties and on several occasion the same party failed to attend. In such circumstances the Chiefs cannot do much. The prerequisite requirement that parties should attend is not met, so that the chiefs will resolve the customary land dispute in a traditional manner. The chiefs should regard it as exhausting all traditional means of solving the dispute and the Chiefs Council should therefore refer the matter to the Local Court with reasons for their referral.

45. In this case the Marovo Council of Chiefs decided for the Claimant in the absent of the 1st Defendant and party. How would they apply traditional means to solve the customary land dispute where there was no dispute presented to them to decide on. An arbitrator in custom must hear two sides of the stories before he applies traditional means to solve the land dispute. One sided story or evidence is not enough, it does not give any litigating issues for the Chiefs to determine.

46. Having learned that the decision was against him, the 1st Defendant referred the case to Marovo Local Court, complying with S. 12(2) and S. 12(3) of the Local Court Act, and that case now is pending before the Marovo Local Court. In my humble view the MCC operate outside the true intention of the Local Court Act. Having said that, and in addition to all that I have said, I therefore refused to grant 1-6 orders sought in this summons. The application is dismissed.

THE COURT

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^[1]. [2007] SICOA No. 36 of 2006, Page 23, paragraph 4.
^[2]. Ibid, Page 23, paragraph 5.
^[3]. HCSI CC No. 152 of 2003.
^[4]. Ibid, Page 4 paragraph 3.
^[5]. Appeal Case No. 8 of 1997.
^[6]. Havea v Bikimoro SICOA No. 36 of 2006.
^[7]. Ibid.
^[8]. [2006] Civil Appeal No. 2 of 2004.
^[9]. [2003] CC No. 284 of 2004.