Majoria v Lomulo [2009] SBHC 20; HCSI-CC 27 of 2007 (8 May 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 27 of 2007

BETWEEN:

HAVEA MAJORIA
(Representing the Rodo Tribe of Marovo)
Claimant

AND:

BEN LOMULO
First Defendant

AND:

ATTORNEY GENERAL
(Representing Customary Land Appeal Court)
Second Defendant

Date of Hearing: 1st May 2009
Date of Ruling: 8th May 2009

For Claimant: Mr. J. Apaniai/Ms M. Byrd
For Defendant: Mr. John Sullivan QC/Mr. T. Kama

RULING

Naqiolevu J:

This matter was listed before me for mention at which point counsel for the Claimants made a submission that the court should consider a preliminary matter before the substantive application is heard.

The preliminary application is that the Court should adjourn the matter generally and the main issues surrounding these Rodo Land cases be referred to either the Local Court or the Customary Land Appeal Court.

Learned Counsel submit there are a lot of customary issues involved in this case which requires decision from the CLAC or the Local Court.

The issue counsel submit relate to the ownership of the land boundaries of Rodo Land. Membership of Rodo Tribe. The question of the Havahava land and its boundary and the status of the 1914 decision.

Learned Counsel for the Claimants submit the sworn statements filed by the parties "says it all", and the High Court has no jurisdiction to determine these issues.

Learned Counsel in support of this application further outline several cases which clearly relate to the same land the subject of this proceeding.

The cases are Havea Majoria -v- Oliver Jino CA 255 of 2005 CC 462 of 2005, and CC 27 of 2007. All these cases relate to logging within the Rodo Land or land which is alleged to be part of Rodo land. The bottom line issue counsel maintain is the ownership and boundaries of Rodo Land as well as membership of Rodo Tribe. These are civil matters and the High Court has been given the discretion to refer to the local Court as it see fit.

Learned Counsel submit to determine the application now will not provide a permanent solution to the paramount issue in these cases.

Learned Counsel further submit there is already a referral of the issue of the ownership of Rodo Land before the Local Court which was made as a result of the Marovo Counsel of Chiefs decision of the 7th of August 2005 whereby the Claimants and his Rodo Tribe were awarded the ownership of the Rodo Land. The referral was made by Oliver Jino and his group, and the first defendant was part of that group.

Both defendants in the two separate cases are agreeable to the referral of the issue to the Local Court.

Learned Counsel submit that the appropriate court that the issue be referred to is the Western CLAC instead of the Local Court as the CLAC has the jurisdiction to determine the issue of land ownership as a preliminary to determine the question as to who are the persons lawfully entitled to grant timber rights over customary land.

Ms M. Byrd learned counsel for one of the Claimants having being given leave to appear, concur with the submission advanced by the counsel for the Claimnant.

Learned Counsel for the defendant object to the application and ask the Court to proceed to list the application for certiorari hearing. This is the original application pending before the Court.

Counsel cited several authorities in support of his submission both of which clearly settle the High Court and Court of Appeal issue raised.

Counsel submit he has no objection to the consolidation of the files relating to the several cases relating to the matter.

The court having carefully considered the submission by the Claimant and the authorities in support. The court further consider the response by the Learned Counsel for the defence and authorities in support.

The court having considered the various sworn statements of the parties filed in these proceedings.

The court is of the view that whilst there are several proceedings pending between the same parties and essentially relating to the same land, the Rodo Land. Further the question of the ownership of the land, and who is entitled to grant the timber rights and the customary membership of the Rodo Tribe and indeed the boundaries of the Rodo Land.

Clearly there are critical customary issues involved in this case which require a decision of the Western CLAC.

The court is of the view that the appropriate authority need to determine these vital issue as required by law, before it proceeds to hear the application.

The provision of the Forest Resources and Timber Utilization Act, Cap 40 is the relevant legislation relating to the use of customary land.

PART III Section 7 - 10

Section 8 (3) specifically spells out the duties and responsibility of the Area Council in respect of the procedure to be adopted in rights relating to customary land.

Section 3 stated section

(a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;

(b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are; (underlining nine)

(c) the nature and extent of the timber rights, if any, to be granted to the applicant;

The court is of the view that given the issue clearly in this case and the pending cases over the Rodo Land relate to the determination of the ownership of the land, and who has the legal right to grant the timber rights over the customary land. It is very important that the issue are dealt with at the preliminary stage before the court proceed to hear this application.

The court agrees with the Learned Counsel for the Claimnant that to proceed to determine the issue in this case in this instance will not provide a permanent solution in the case.

The court in all circumstances order the issue relating to the ownership of Rodo Land and the important membership of the Rodo Tribe be clearly determine before it propose to hear this application.

The matter is adjourned generally with liberty to apply.

THE COURT