Pati v Bato [2009] SBHC 41; HCSI-CC 425 of 2008 (31 July 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 425 of 2008

BETWEEN:

LAWSON PATI and SAMUEL TONDONGA
(Representing Lenabako Tribe & Lenabako Trust Board Inc)
Claimants

AND:

DONALD BATO and VICTOR PAULSEN
(Trading as Pari Development Co.)
1st Defendant

AND:

PACIFIC CREST COMPANY
2nd Defendant

Cameron J

Date of Hearing: 30 June 2009
Date of Decision: 31 July 2009

Ms Bird for Applicant
Mr Apaniai for First & Second Defendants

DECISION ON APPLICATION TO STRIKE OUT CLAIM
OR ALTERNATIVELY DISCHARGE OF FREEZING ORDER

Cameron PJ:

1 The claimants, representing the Lenabako Tribe, claim damages in trespass against the first and second defendants, who are involved in logging.

2 The claim relates to the activities of a ship said to be under the control of the defendants. It is alleged that in February/March 2008 the ship moored at Gomu Island in the Western Province, and used this island and the adjacent West Kohingo Island reef for the purpose of loading logs onto the ship for export.

3 When challenged by the claimants, who assert that their tribe (Lenabako Tribe) owns Gomu Islands and West Kohingo reef, it is alleged that the defendants agreed to enter into an access agreement for the use of the areas concerned. It is alleged that the defendants then failed to enter into that agreement.

4 It is common ground that the logging activities of the defendants are on an island called Parara Island, which is situated alongside Kohingo Island but separated by a lagoon. The areas being logged on Parara Island are owned by the defendants, so the only issue is as to where the loading of those logs onto the ship has been taking place.

5 On behalf of the defendants, Mr Olupatu Amiki of Kohingo Island has sworn a statement in which he contends that his tribe, the Igolo Tribe, own the west part of Kohingo Island and with it the Kohingo reef which runs off the western part of the island and also Gomu Island (situated on or near the reef). In support of this contention as to ownership, annexed to his sworn statement is a CLAC decision dated 23 April 1982 (an appeal from the Vella la Vella Local Court) and a decision of the Central Magistrate’s Court dated 5 May 1984.

6 The parties to the CLAC decision are representatives of the Lenabako Tribe and the Igolo Tribe respectively. The subject matter is the ownership of Kohingo Island.

7 Under the hearing "ownership of the land", the Court made the following statements:

"(a) The people of Lenabaku tribe and the Appellant (Igolo tribe) are the owners of the land bounded by Galu Galu and Tiparere [situated respectively on the east and west coast of Kohingo Island].

(b) Koete Igolo is the owner of all the land formerly in the ownership of Igolo."

8 Then under the heading "Property on the Land’, the Court states:

(a) The people of the Lenabaku tribe own Kohigo Land except such parts as were formerly owned by Igolo.

(b) Any development on the land done by Koete Igolo or his people belongs to him or them. Before undertaking any further development or new cultivation the Respondents must seek the permission of the people of the tribe of Lenabaku and the Appellant."

9 Olupatu Amiki in his sworn statement asserts that the Court’s reference to "except such parts as were formerly owned by Igolo" is a reference to west Kohingo (on the western side of the boundary line as identified) including the Kohingo reef and Gomu Island. Although there was no sworn statement contradicting this interpretation, Ms Bird advised me that her clients do not accept that construction of the decision. Her submission was that the judgment does not define which lands were those referred to in the phrase "such parts as were formerly owned by Igolo". I agree, and unfortunately the judgment of the Central Magistrate’s Court does not clarify that matter.

10 It is also unclear from the decision of the CLAC where the boundary line between Lenabako and Igolo Land lies. The reference to ‘the land bounded by Galu Galu and Tiparere’ is capable of more than one construction.

11 In addition, the decision does not made specific reference to Kohingo reef or Gomu Island, so clarification is needed in that respect also.

12 While the defendants argue that the claimants merely assert a claim to ownership of the Kohingo reef and Gomu Island without anything to back up those assertions, this is not quite accurate in that the decision of the CLAC related to Kohingo Island and the competing claimants were the Lenabako and Igolo tribes. Clarification of the issues which have been identified as arising out of that decision should resolve the competing claims of ownership of both parties.

13 In addition, there is a baitfish agreement entered into by representatives of the Lenabako tribe with Solomon Taiyo Ltd relating to the Kohingo reef and to which one of the claimants is a signatory. While not determinative of ownership in any way, it lends some weight to the assertion of the claimants that they are the recognised owners of that reef.

14 Additionally, if it is true that the defendants indicated a willingness to enter into an access agreement in relation to the reef with the claimants, then again that supports the claimants’ contention of being the recognised owners.

15 I conclude that the issue of ownership of the Kohingo reef and Gomu Island is not clear, and as it is a matter of custom, such dispute will need to be resolved by the Council of Chiefs and if necessary the Local Courts. The present case ought not to proceed until that has occurred. I have not overlooked the defendants’ arguments about the ‘breach of promise’ cause of action. I accept that as pleaded it is deficient, but in my view Ms Bird’s intention to amend this so as to claim a ’breach of contract’ will cure this deficiency.

16 As to the freezing order on funds made ex parte on 12 December 2008, it ought not to remain. The inter partes hearing has demonstrated that the defendants have a strong arguable case to the effect that the Lenabako tribe do not own Gomu Island or Kohingo reef, which would not of course have been apparent to the Court at the time of the ex parte application. Furthermore, the funds the subject of the freezing order represent legitimate proceeds of logging from the defendant’s own land, and are unrelated to the alleged acts of trespass.

17 In the circumstances, I stay the High Court proceeding until such time as the issues of customary ownership have been resolved by a Council of Chiefs or the Local Courts. Further, I discharge the ex parte orders of this Court made on 12 December 2008. I order that costs shall be in the cause.

BY THE COURT