Zobule v Attorney General [2008] SBHC 87; HSCI-CC 297 of 2008 (22 October 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 297 of 2008

ALPHEAUS ZOBULE & PELOPI TADA
(Representing all persons residing in Kundu, Suvuru, Malokoro,
Saevuka, Keara, Ngaidavola, Lale, Kongu, Kara, Vavasara, Paga,
Suava & Kiriovuku villages, Ranogga Island)

V

ATTORNEY-GENERAL
(Representing the Commissioner of Forests and the Western Provincial Government)
1st Defendant;

Ezekiel Daveta, John Selwyn Kei, Judy Beck, Vuto Avara, Opeti Nego,
Isoa Mamupio, Obed Mumadbella and Paul Areare;
2nd Defendants;

Nason Beikera
(Carry on Business under Business Name Degere Development Company)
3rd Defendant;

Glengrow (SI) Company Limited & Glengrow Sawmilling Industries Limited
4th Defendant

FAUKONA, J.

Date of Hearing: 25 & 26 September 2008
Date of Ruling: 22nd October 2008

Charles Ashley for the Claimants
Desmond Nimepo for the 1st Defendant
Philip Tegavota for the 2nd-4th Defendants

RULING

Faukona, J.

This is an application pursuant to Rules 2.9 and 7.5 of the Solomon Islands Court (Civil Procedure) Rules 2007. The application was filed on 22 September, 2008 by Mr. Tegavota on behalf of 2nd-4th Defendants. The application sought to discharge the interim injunction orders granted by this court on the 11th September 2008.

The interlocutory Orders are:

1. That an interim injunction is issued until further order against the 3rd and 4th Defendants, their agents and servant from carrying out any logging operations under Licence No. A10763 covering customary lands within Ranongga Island; and
   
2. That the cost of this application be in the cause; and
   
3. Any further or other orders deemed fair and just.
   

Background facts

A Form 1 application was lodged with the Commissioner of Forests by Degere Development Company (2nd Defendants) on 28th August 2003 according to S. 7(1) of Forest Resources and Timber Utilisation Act (Cap. 40) FRTUA, for consent and approval, so that the 2nd Defendant will negotiate with Western Provincial Executive and the customary landowners to undertake logging activities on Degere Customary Land on Ranongga Island, Western Province.

Upon receipt and consented approval, the Commissioner of Forest forwarded the Form 1 application under a covering letter of 28th August 2003, to WPE to commence the process of negotiation S. 7(2) FRTUA. For reasons unknown the Form 1 was not activated. On 9th September 2007 another letter from the Commissioner’s Office revalidating the Form 1 application previously approved and forwarded to WPE on 28th August 2003. It seemed apparent that the Form 1 application was not acted upon by WPE until 29th September 2007, following the revalidation letter dated 9th September, 2007.

On the 9th October 2007 notices of the meeting were displayed under Section 8(2) FRTUA. On 12th December 2007 a meeting between the WPE, the customary landowners and the applicant was held at United Church Hall in Gizo. On 13th December, 2007 after deliberation, the WPE determined the Second Defendants were the persons lawfully able and entitled to grant timber rights in the area held by Degere customary land owning group. A Certificate of customary ownership was issued to that effect. A certificate of determination was later issued on 8th January 2008.

Against the Certificates of customary ownership and determination that the Claimants filed this claim in the High Court on 8th September 2008. It appears unclear from the statement of the case, however, I gather that it purported to be an application for Judicial Review. That has to be clarified by Mr. Ashley.

Whilst waiting for the original application to be heard, Mr. Ashley filed an application for ex parte interim injunction orders which was granted by this court on 11th September 2008. Against those orders that Mr. Tegavota filed an application on 22nd September 2008, under Rule 2.9, and 7.5, for those orders to be discharged.

Undisputed Facts

1. It is agreed that there is no referral case on land dispute in regards to Degere land pending in the Ranongga/Simbo Local Court.
   
2. No dispute that there is no appeal pending in the Western Customary Land Appeal Court (WCLAC) against the WPE determination. Noted from the minutes of the Timber Rights Hearing, a sole objector namely Eddie Kotomae was present and had raised objections. Despite his objection the WPE determine against him. He was not contemplating on appeal as well, and the period to appeal has long been gone.
   

Issues

The usual issues to be considered in an application for injunctive orders against logging activities are:

1. Triable issues
   
2. Locus Standi
   
3. Balance of convenience
   

In considering those issues I have the privilege to read the statement of the case and sworn statement of Mr. Zobule for the Claimants, and also read the sworn statements of Chief Daveta, Misake Poana and Nason Beikerea for the Defendants.

The function of Court in application for injunctive relief

The law in relation to grant of injunctive relief is well settled by the Courts in this country. In Gandly Simbe v. East Choiseul Area Council and Others[1] the Court of Appeal stated on paragraph 25,

The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To the extent that a Local Court or Customary Land Appeal Court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunction aiding the exercise by a local or customary appeal court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary appeal court specifically invested by Parliament with the power to decide it. Pending decision of that dispute in the Local or Customary Land Court, proceedings in the High Court would ordinarily be stayed on appropriate terms. Whether or not the Court would be prepared pending the decision of the Local Court, also to grant on interlocutory injunction to restrain entry on, and felling and removal of timber from the land in question depends on the circumstances, including in part the Courts assessment of the plausibility of the plaintiff’s claim to ownership of that customary land and the prospect of its succeeding in the Local Court".

In the case of Veno v. Jino[2] paragraph 22 the Court of Appeal stated;

"The Chief Justice pointed out that the evidence is "overwhelming" that appellants lacked standing to usurp the timber rights agreement and the licence granted to the Second Respondents, upon the basis that their claims as to customary rights in the Havahava land are no more than mere assertions. No relevant body or tribunal has endorsed them and the Council of Chiefs has rejected them. We consider that his Lordship’s characterisation of the appellant’s claims as "mere assertions is insufficient to ground the injunctive relief sought" to be both just and accurate".

Again in the case of Derrick Halu & Others v. JP Enterprise Limited and Others[3] Sir Muria CJ said on page 4 paragraphs 2;

"Counsel, however, argued that the serious issue that this court ought to consider in this application was that of the legality of the logging licence. It is true that this is a serious issue for the court to consider. However, like in all of these cases involving logging on customary land, the propriety of the logging licence cannot be entirely separated from the issues of ownership of customary land. As those involved in the process of administering the law on forest and timber know, sensitive issues of custom do very much affect the procedure of obtaining a logging licence on customary land in this country. Thus where the issue of ownership or other rights in custom over customary land is in dispute touching on the propriety of the logging licence, a party cannot simply isolate the issue of custom and come to this court on the sole issue of the legality of the licence. His standing in such case covers both issues. That should also be the position in this case".

Triable Issues

Normal issue often arise in connection with logging activity is the claim of ownership of customary land upon which the logging activity has taken place. It is often regarded as customary issues which the High Court does not have jurisdiction to entertain. It has to be sorted out in the right forum. And of course the legality of the process for acquiring licence. In this case Mr. Ashley argued that his clients come to court at first instance to assert their customary rights to certain customary lands in Ranongga but without specifications. Attach to sworn statement of Mr. Zobule are list of people from various villages Kunou, Saevuka, Suvuru, Konuruku, koriovuku, Poletaki, Vavasara, Bebeto, Lale, Pange, and Suvuru who signed the petition to stop any logging on Ranongga Island. Confirmed by sworn statements of Chief Davete, Poana and Beikerea that only the villages namely Poletaki, Vavasare and Pange are within the concessionary area, the rest are outside. The question to ask is, are those people from those three villages has any right at all to any land or block of land within the concessionary area. There is no evidence that people from those villages claim ownership of any customary land within the concessionary area, or within Degere land.

In addition Mr. Ashley submitted that the Claimants’ case is not about customary ownership but about non compliance with the requirements of FRTUA by the WPE, Sections 8-12, and they are very serious triable issues.

On the other hand Mr. Tegavota submitted that those people who signed the petition objected to logging failed to mention that they also claim ownership of Degere land or part thereof. There must be some evidence related to land ownership as a basis for the court to consider issuant of an injunction orders. The Claimants cannot rely on the effect of Tsunami. There have to be a valid claim so that at the end of the day the court will consider as a triable issue. If the Claimants claim trespass then they have to allege ownership. Meantime the Claimant failed to specifically allege which land they are claiming. Are they claiming Degere land or the whole of Ranongga Island? He submitted that the Claimants claim is ambiguous, and they avoided the issue of ownership as the basis for injunction.

I agree with Mr. Tegavota. However, in the absence of any claim of ownership of any land within the concessionary area with boundary specification, would that include all the persons particularly from the three villages inside Degere land that signed the petition. Perhaps this is a matter that needs further clarification, but has not been done. For time being whether they have a valid claim or not is very vague.

Mr. Ashley further submitted that the WPE failed to comply with the relevant provisions of the FRTUA. He submitted that the Form 1 application was forwarded to WPE on 28th August 2003 but was not activated until 9th October 2007 following the revalidation of Form 1 by the Commissioner on 9th September 2007, hence breached S. 8(1) FRTUA. Also submitted that there was no notice issued and displayed publicly in the area within vicinity of the land therefore breached S. 8(2) of FRTUA. The timber rights hearing was conducted in Gizo and not at Ranongga Islands therefore breach S. 8(1) of FRTUA. As a matter of fact the Claimants were not aware of those activities until they learn when the machines arrived at Ranongga to commence logging operation. Mr. Ashley also submitted that there was no agreement reached pursuant to S. 8(4) –(5) of FRTUA.

I agree with Mr. Ashley that those are serious issues to be considered. However, Sir Muria CJ had made it clear in Halu’s case that propriety of the logging licence cannot be entirely separated from the issues of ownership of customary land. Thus where issue of ownership and other rights in custom is in dispute touching on the propriety of the logging licence, a party cannot simply isolate the issues of custom and come to court on the sole issue of procedure and legality of licence. The Claimants standing in such as covers both issues. In this case the Claimants are more concerned of the legal issues than land ownership which on their part very vague and unspecified. The law is clear and that should be the position in this case as well.

Locus Standi

The real dispute in this case is about non compliance with the Act and the legality of the logging licence and very vague about customary rights and interest in land. In Simbe’s case the High Court has power to grant injunction which can be used in appropriate cases to aid the work of the Local Court or Customary Land Appeal Court to deal with matters of custom. In this case there has been no land dispute case pending determination by the Ranongga/Simbo Local Court, or an appeal to WCLAC from WPE determination. The only case pending is an application to the High Court perhaps for judicial review. That has yet to be specifically stated.

A sole objector who attended the timber rights hearing and made objections failed to lodge any appeal to WCLAC. He disappeared after all. His name has not been include in this proceeding.

The Veno case makes it clear that the appellant lacked standing upon the basis that their claim as to customary rights in the land are no more than mere assertions, and mere assertions is insufficient to ground the injunctive relief sought.

The position in this case is that the Claimant is yet to establish their rights to come before this court to be heard on the issues affecting their customary rights.

It is true to say that the claim by the Claimants is ambiguous in respect to ownership and they are mere assertions. Therefore they have no locus standi.

Balance of Convenience

On the balance of the party’s claims; I look at the seriousness of the breaches by WPE, and Claimant’s lack of establishing their rights of ownership before coming to this court. These two issues according to Halu’s case ought to be consolidated as one. Requirements by the Act before and after timber rights hearing are processes which led up to the grant of a licence. To dispute the process one has to establish his rights to the ownership of the customary land concern. A mere assertion of ownership is insufficient to ground injunctive relief sought. I consider the effects, among others, the result this case may have on the parties. The cost, the irreparable damages etc. On the balancing exercise, the most importantly, one has to establish his ownership right to a specific customary land which will be affected by the logging activity. Failure to do so, an assertion is not a good basis for granting. Likewise, sympathetic assumption for cost of irreparability is unconvincing. The law in the cases are clear and must prevail. This case cannot be decided out of sympathy but based on law.

I therefore grant the application with the following orders:-

1. That the ex parte orders issued by this court on 12th September 2008 be discharged.
   
2. That the second, third and fourth defendants be allowed to continue with their logging operation on Degere land.
   
3. That the Claimant pays the cost of their application to the Defendants.
   

THE COURT

---

^[1] [1997] Appeal Case No. 8 of 1997.
^[2] [2004] Civil Appeal Case No. 2 of 2004
^[3] [2003] HC-CC No. 16 of 2003.