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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 479 of 2004
JOSEPH PA’ASI
STEPHEN TAHUNIMAKE
ROMEO TOISUTA
(CLAIMANTS)
JOHN MAHANE
FRANCIS HASIAU
(Representing the Hanuaraua tribe of Waisisi, West Are"Are, Malaita Province)
V
JOHN HERO’AU
(1ST DEFENDANT)
MICHEAL ORITAIMAE
JOHN KEREHA’I
MORAMAI PAINA KO’UAROSI
(2ND GROUP OF DEFENDANTS)
JOACHIM RAROISU’U
SOLOMON NAOTORO, FRANCIS ANIRATANA
(Trading as Arasihanuau Land Trust Incorporated)
JOY ITAIA (Trading as Oceania Trading Company)
3RD DEFENDANT
COMMISSIONER OF FORESTS
4TH DEFENDANT
IZUAKO, J.
Date of Hearing: 05 August 2008
Date of Ruling: 25 August 2008
A. Nori esq. for the Applicants/Defendants
J. Apaniai esq. for the Respondents/Claimants
RULING
Izuako, J.
This action emanated in October 2004. On the 7 December 2004, an amended writ of summons and statement of claim were filed by seven claimants who described themselves as members of the Hanuaraua tribe and the persons determined by the Malaita Provincial Executive as lawfully able and entitled to grant timber rights in Hanuaraua customary land.
The defendants are made up of one John Hero’au (now reported dead); the members of the Arasihanuau Land Trust Incorporated who are said to hold a timber rights license over areas including Hanuaraua Customary Land, their logging contractor and the Commissioner for Forests who granted the timber licence.
The claimants seek a perpetual injunction against the 2nd and 3rd defendants in respect of Hanuarua Customary land among other reliefs.
On 3rd July 2006, an interlocutory injunction was granted in favour of the claimants. The 2nd and 3rd defendants were restrained from entering or remaining on the said Hanuaraua land or constructing any roads, felling or, extracting or removing any trees, logs or timber from the said land until the trial of the suit or further orders of the court.
Again on 23 August 2006, the court ordered further that the remaining logs on the land in dispute be hauled and sold and the proceeds thereof and proceeds of all logs sold from the Hanauraua land be paid into a joint trust account in the names of the solicitors to all the parties except 4th defendant. It also ordered that any agreement for the use of Hanuaraua land as access roads be discussed between the plaintiffs on behalf of Hanuarua tribe and the members of the other tribes.
The defendants headed to the Court of Appeal in a bid to discharge the injunctive orders made by the High Court. On 15 October 2007, the Court of Appeal dismissed the appeal and referred the matter back to the High Court to deal with any arising problems in procedure and have the substantive matter heard.
The defendants have further brought this application under Rule 3.42 of the Solomon Islands (Civil Procedure) Rules 2007. They seek the following orders
(1) That the claimants provide proof that they are entitled and mandated by the Hanuaraua tribe of Waisisi, West AreAre, Malaita Province, in commencing and continuing this action.
(2) Failing proof of entitlement to represent the Hanuaraua tribe, consequential orders that:-
(a) The action is dismissed
(b) The interim injunction issued by the court in the action prohibiting the 1st and 2nd defendants to enter and Carry out Logging in Hanuaraua tribal land be set aside;
(c) Costs
(3) In the alternative to 2 above, failing proof by the claimants of entitlement to represent the Hanuaraua tribe, they convene a public meeting of the Hanuaraua tribe to confirm or otherwise their entitlement to represent the Hanuaraua tribe in commencing and continuing the action, failing such confirmation;-
- (a) The action be dismissed
- (b) The interim injunctive orders made on 16 August 2006 be set aside;
- (c) The claimants to pay the defendants’ costs.
In arguing the application, learned counsel for the 1st, 2nd and 3rd applicants/defendants, A Nori esq. stated that they rely on the following affidavits which are already before the court.
(a) Affidavit of George Oroho filed on 15 October 2004
(b) Affidavit of Albert Alick Nori filed on 29 November 2004
(c) Joint affidavit of Joseph Pa’asi and Stephen Tahunimake filed on 26 November 2004
(d) Affidavit of Stephen Sirianipo filed on 26 January 2005
According to counsel, these materials show that the right and authority of the claimants to bring this action on behalf of the Hanuaraua tribe has been in question as for back as November 2004.
Learned counsel for the applicants/defendants continued that Rule 3.42 must not be confused with the issue of locus standi. The claimants may have a legal standing to come to court being members of the Hanuaraua tribe but they require representational mandate under R. 3.42. There must be clear proof of such authority, he submitted.
He continued that eight persons were named as claimants in the original writ in this action. Notices of discontinuance were at some stages filed by three of these. Only five claimants remain and two of them are brothers. Another two, he said, were asked not to act for the tribe in land matters by a resolution dated 27 August 2004 made by the tribe.
Mr. Nori for the applicants/defendants also submitted that in so far as the affidavit of Joseph Pa’asi of 16 June 2008 refers to matters of custom, it ought not to be admitted as evidence in this application. He referred specifically to paragraphs 6, 7 and 8 of the said affidavit. These, he said, deal with serious issues of custom especially with issues critical to membership of the tribe and ownership of land. He applied that these paragraphs be expunged with the lists annexed. In the absence of records from a competent tribunal that people on the list are members of the Hanaraua tribe, it would be a serious error to have those names admitted in evidence that they belong to the tribe. Such material, he added, must be treated with suspicion so that the Court does not unwittingly confer membership of the tribe on these people.
Further on the issue of authority to represent the tribe, Mr. Nori submitted that such proof and authority must come from the tribe as a collective and a group. He continued that he had suggested steps that could be taken to obtain credible authority of the tribe in a letter he wrote on 30 May 2008 to the claimant’s counsel. He said that the tribe ought to hold a meeting to give or confirm their authority where an issue arises under R. 3.42.
On the decision of the House of chiefs referred to by claimant’s/respondents counsel, applicants counsel said it was not a decision on representation of a tribe and therefore the claimants cannot rely on that decision for proof of representational authority. He submitted further that it was clear that out of the four sub-tribes making up the Hanuaraua tribe the Ohaamo sub-tribe was in support of logging operations while the Waanomori sub-tribe allowed only road access. In the third sub-tribe of Irauou, there was division with some members for and others against logging. In the fourth sub tribe Verahau, they objected to logging. Since there was division within the tribe, the claimants were wrong to come to the High Court in the name of the tribe without a specific authority to represent it.
Finally Mr. Nori submitted that Courts should promote tribal democracy and tribal decision-making at all levels.
In making out their case, J.Apaniai esq. for the claimants/respondents submitted as follows:-
(1) There is no dispute that the respondents are members of the Hanuaraua tribe.
(2) A meeting of the said tribe held on 16 November 2004 took a unanimous decision that logging must not take place on their land. He referred to exhibit JPSTI annexed to the joint sworn statement of Joseph Pa’asi and Stephen Tahuinmake filed on 26 November 2004 which is the minutes of the meeting of 16 November 2004.
(3) The Arhanimane Council of Chiefs confirmed in its decision dated 5 August 2005 that the respondents are not only members of the tribe but are chiefs of the sub-tribes within the Hanuaraua tribe. Respondent’s Counsel submitted that apart from three of the claimants being chiefs of their sub-tribes, by virtue of their membership of the tribe, they are entitled in custom to represent the tribe.
(4) Respondents’ Counsel referred to an affidavit of 28 February 2005 in which he said the three chiefs of three of the four sub-tribes making up Hanuaraua tribe confirmed that members of their sub-tribes are opposed to logging operations on their customary land.
(5) Counsel continued that the Arhanimane Council of Chiefs confirmed that four of the five respondents are members of the Hanuaruaua tribal committee in exhibit ASI. In a letter of 22 September 2004 exhibit JPI written by the applicants through their counsel A. Nori esq. to Stephen Tahanimake, they admitted that the Hanuaraua tribal committee had a right to represent the tribe in all matters.
He submitted that by virtue of this admission, the applicants are estopped from denying that the claimants are entitled to represent the tribe in this action.
Mr. Apaniai argued that the requirement of Rule 3.42 is for the respondents/claimants to prove that they are entitled in custom to represent the tribe and not that the tribe has authorised them to bring the action.
Rule 3.42, Counsel submitted, ought to be given a generous or liberal interpretation. Considering that logging operations destroy the land, Rule 3.42 ought to be interpreted liberally to mean that a member of the tribe is covered by the rule.
He added that the suggestion by applicants’ counsel that a public meeting of the tribe be convened to confirm or refuse the respondents’ entitlement to represent them by casting of votes is a procedure that is not known to custom.
On whether the action brought by the respondents should be dismissed in the event that they are unable to meet the requirements of R. 3.42, learned counsel was of the view that this ought not to be so since as members of the tribe, the respondents have locus standi. He referred to the decided case of CC 163/2003 Hallu & Others v. J.P. Enterprises and Others. He also urged the court to have regard to Rules 1.3 – 1.8 of the civil procedure rules in deciding this application.
In reviewing this application, it is imperative to examine critically the wordings of Rule 3.42 under which the application is brought. For ease of reference, I reproduce hereunder the said Rule 3.42:
The Oxford English dictionary defines the word entitle thus: Qualified, Eligible, give someone a right to do or have.
In his submissions before the court, A. Nori esq. of counsel for the applicants used the word entitled interchangeably and as having the same meaning as the word mandated.
The same dictionary defines mandate thus: an official order or authorisation. As a verb the word mandated means: Give someone authority to act in a certain way.
It is my reading of these words that entitled is not interchangeable with mandated. While the word entitled may permit that an authority to act can be inferred from certain circumstances, the word mandated conveys the existence of an express, direct and unequivocal authority to act.
The word custom in the Oxford English dictionary is defined as a traditional way of behaving or doing something that is specific to a particular society, place or time. It is also defined as established usage having the force of law or right.
Where the wordings of Rule 3.42 speak to being entitled in custom, it properly means being eligible, qualified or having a right under the traditions of the particular community, tribe or line.
I take judicial notice of the fact that in most of the countries formerly colonised by the United Kingdom, English law was received and allowed to operate side by side with local customs and traditions not adjudged repugnant or contrary to the principles of natural justice, equity and good conscience.
When therefore there is a reference to custom as in Rule 3.42, it is understood that it relates to the traditional way of doing things in the community or tribe as distinct from the provisions of or expectations of the common law, or received English law.
In traditional societies or communities such as those in the Solomon Islands and elsewhere where customs as described above are recognised in the law, what then may entitle a person in custom to represent or speak for or on behalf of a community or tribe or line? There can be no dispute that the position held by the person within the community is critical to determining such entitlement. This position may be conferred by circumstances of birth, by achievement within the community or by blood ties, or indeed by all three.
Looking through the gamut of cases decided on transactions over customary land in the Solomon Islands and in fact at the provisions of such legislations as the Forest Resources and Timber Utilisation Act and the Land and Titles Act, one issue stands out in bold relief – the issue of ownership and the determination of ownership of customary land. And closely following and related to this is the issue of who is in a position within a land-owning community to represent the given community in any dealings over customary land such as entering into timber rights agreements. In the case of Sekovolovo v. Eagon Resources Development Co. Ltd. (1999) SBHC 116, Palmer J, referred to the plaintiff as suing in his representative capacity as chief of the land-owing Kogoatovo tribe.
In this application, all the parties are agreed that all the claimants/respondents are members of the Hanuaraua tribe. They are also agreed that the lands over which this suit is instituted belong to the Hanuaraua tribe. While the applicants’ case is that the respondents have no right to bring their legal action in the name of the tribe and as representing the said tribe within the meaning of R.3.42, the respondents contend that they occupy positions within the tribe which properly clothe them with this entitlement, that is, the position of chiefs of three of the four sub tribes within the Hanuaraua and also membership of the tribal committee or Arata. They have argued also that their membership of the tribe per se is enough to entitle them in custom to represent the tribe.
The applicants relying upon the affidavits of George Oroho, Albert Alick Nori and Stephen Sirianipo have submitted that the 1st and 2nd claimants/respondents were barred by a general meeting of the Hanuaraua tribe held on 27 August 2004 from representing the tribe on any land-related matters. Albert Alick Nori in support of the applicants’ case deposed to this in an affidavit on 29 November 2004. His deposition at paragraph 40 in referring to his exhibit AAN9 showed that a new Arata or tribal committee was formed at the general meeting which also passed a resolution ostensibly to whittle down the influence of the 1st and 2nd claimants/respondents.
According to exhibit AAN9, which is the minutes of the tribal meeting of the Hanuaraua tribe compiled by Albert Alick Nori himself, a tribal committee (Arata) was formed in 2002. It was recorded that since the 1st claimant/respondent who was a member of the 2002 committee had disturbed the working of that committee, its composition was being adopted with minor changes. The said tribal committee was then reconstituted with 9 members who included all the original 8 claimants, among them, the 1st and 2nd claimants/respondents.
The question arises as to why at a time the claimants/respondents were opposed to the actions of the first defendant Chief John Hero’au in engaging 2nd and 3rd defendants to carry out logging activities on the tribal land of the Hanuaraua, the tribal general meeting summoned and attended by the applicants/defendants saw it fit to appoint all of the original claimants as members of the tribal committee. I am inclined to believe this was so because these men occupied important roles in the community or were recognised as persons who could be entrusted with representing the community as the occasion demanded. Some of these men were in fact chiefs of three (3) of the four (4) sub-tribes making up the tribe which owned the land, the subject-matter of this action. It is strange and contradictory that a tribal meeting which appoints a man into its tribal committee would in the same breath and at the same meeting bar such a man from representing it on land-related matters. What then was the use of the formation of a tribal committee?
Again at paragraph 35 of his affidavit, Albert Alick Nori deposed to a ..."continued political war waged against the chiefs, leaders and supporters of ALT (second defendant) by Pa’asi (1st claimant/respondent) and his associates which culminated in a decision being made to convene one more final meeting of the Hanuaraua tribe to end all speculations, indecisions and doubts ...".
At paragraph 36, the deponent said the meeting was fixed for 27 August 2004 and as he has deposed his exhibit AAN9 is the minutes of the said meeting recorded by him. Exhibit AAN9 shows the appointment of a new tribal committee (Arata) for Hanuaraua and the claimants/respondents emerged as members including the 1st claimant/respondent whose "nuisance value" had prompted the need for the tribal meeting in the first place and which meeting the said 1st claimant/respondent did not attend.
Learned counsel for the applicants has urged the court that the only credible proof that claimants/respondents can bring to the court in order not to fall foul of rule 3.42 is that another meeting is called with announcements made for the Hanuarauan tribal members to meet and give them a mandate to continue this action. The courts, counsel said, ought to promote tribal democracy and decision-making.
I do not agree that rule 3.42 was drafted with tribal democracy in mind. Entitlement in custom is not about vote casting. In spite of modern day aspirations to democratic ideals, it is beyond the duties of a court to engage in applying democratic principles in traditional communities where issues of authority and representation in custom are decided in other ways.
J. Apaniai esq. for the claimants/respondents had submitted that by virtue of being members of the Hanuarauan tribe, the claimants/respondents are entitled to represent the tribe. I do not agree. Mere membership of the tribe may give a litigant locus standi as known to the common law but not in the expectation and meaning of rule 3.42 under which this application is brought.
As to the joint affidavits or sworn statements of the 1st and 2nd respondents, it was the claim of the deponents that they organised a meeting of the tribe and there was agreement that the proposed logging activities on their land by the applicants was to be objected to.
Reliance was placed on a document said to have been the decisions of the Arahenimane council of chiefs at a panel hearing on 2-4 August 2005 by the claimants/respondents. Learned counsel for the applicants has submitted that the decision was not about tribal representation and that the respondents cannot rely on it for proof of their representational capacity. He also urged the court to expunge paragraphs 6,7 and 8 of a sworn statement made on 16 June 2008 by the 1st claimant/respondent as according to him the facts deposed to in those paragraphs deal with serious issues of custom especially issues critical to tribal membership. In the absence of records with regard to tribe membership and unless such membership are decided by a competent tribunal, the court may unwittingly confer membership of the tribe on such people, he argued.
I cannot agree with this position. An uncontested document from an independent and authoritative source such as the relevant council of chiefs and dealing with the question of who is who within the Hanuaraua tribe cannot be ignored. In the same vein, I see no need to expunge paragraphs of the 1st respondent’s affidavit because they refer to tribal membership of certain persons which to my mind are matters of fact.
I am mindful too that in the course of proceedings such as this, several deponents are likely to make conflicting affidavits to support the cases of the parties regardless of the laws of perjury. A careful examination of the various affidavits, exhibits and documents placed before the court in this application by both sides agree on one issue critical to this application. It is the fact that the claimants/respondents are members of the Hanuaraua and that they command enough clout, recognition and responsibility within the Hanuarauan tribe to be made chiefs of three of the four sub tribes and members of the tribal committee.
I find no need to consider whether this action may be struck out or dismissed or whether the claimants/respondents may continue it as mere members of the tribe having locus standi by dint of their membership. There is no need also to give a generous or liberal interpretation to rule 3.42 as its wordings are unequivocal.
Another tribal meeting to seek a democratic mandate on the part of the claimants/respondents is not only outside of the contemplation of rule 3.42 but will promote the false notion those tribal meetings can be convened as often as parties to an action need to have their way. More than that, there will be as many tribal meetings as there are divisions in the tribe with the parties bringing conflicting minutes of these meetings. I have already referred above to paragraph 35 of Albert Alick Nori’s affidavit in which he deposed that a "continued political war waged against the chiefs, leaders and supporters of 2nd applicant by the 1st respondent and his associates culminated in a decision to convene one more final meeting of the tribe to end all speculations in decisions and doubts". As the Court of Appeal had pointed out, there is need to resolve procedural issues and move on in this matter which after three years in court has barely taken off.
I find that on the balance of probabilities, the five claimants/respondents are entitled in custom to represent the Hanuarauan tribe. I find that they are sufficiently entitled in custom to commence these proceedings and to prosecute it. The application hereby fails.
Justice Nkemdilim A. Izuako
Puisne Judge
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URL: http://www.paclii.org/sb/cases/SBHC/2008/59.html