Hagi v Tripical Resources Development Company Ltd [2011] SBHC 140; HCSI-CC 423 of 2011 (23 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 423 of 2011

BETWEEN:

PERCIVAL HAGI
(Representing himself and Members of
his Kakau Rusua Sub-tribe)
Claimant

AND:

TRIPICAL RESOURCES
DEVELOPMENTCOMPANY
LIMITED
1ST Defendant

AND:

TRILLION TREE COMPANY
LIMITED
2nd Defendant

Date of Hearing: 11 November 2011
Date of Ruling: 23 November 2011

J Iroga for Claimant
A Tongarutu for Applicants

RULING

Mwanesalua J:

1. This is an application by the 1st and 2nd Defendants to strike out the ex parte interim order filed on 28 October 2011 in favour of the Claimant.

2. The First Defendant is a Business Name registered under the Registration of Business Names Act 1971. It holds Felling Licence No. A1031 ("Licence") issued by the Commissioner of Forests and was renewed on 5 September 2011 which does not cover Ope Customary land on big Gela.

3. The Second Applicant is a private company limited by shares incorporated under the Companies Act 1971, the contractor, engaged by the First Defendant to carry out logging operations within its concessions.

4. The Claimant is a member and the representative of the Kakau Rusua Sub-tribe ("tribe") and head of the tribe on Big Gela. The tribe is the owner of Ope Customary land ("Land") on Big Gela. The tribe relies on the decision of the Leitongo House of Chiefs dated 28 September 2011.

5. On or about the first week of September 2011, the Defendants entered the land and, constructed a log pond, felled trees of economic value, caused extensive damage to the land, including main tambu sites of the Claimant's tribe. All these were done by logging machines and equipment without any permission, agreement or consent of the Claimant and his tribe.

6. Attempts by the Claimant and members of his tribe to halt the Defendants from continuing with their logging operations proved unsuccessful as the logging continues.

7. The Claimant came to Court on 27 October 2011, seeking ex parte interim orders to restrain the logging operations of the Defendants. The Court granted the interim orders in view of the evidence in paragraphs 4 to 6 above.

8. The Managing Director of the First Defendant was served with a copy of the ex parte interim orders at his home in Honiara, while the Second Defendant was served at its Registered Office at Ranadi, in Honiara. Although the First Defendant was served again with a perfected copy of the Orders at Ope Log Pond at Big Gela on 31 October 2011, the Defendants have continued felling trees on the land and haul logs extracted to their Log Pond at Ope Land. They ignored and refused to comply with the Interim Orders.

9. The Applicants think that they can flout the law and the orders of the Court. The Court has power to punish those who disregard and are in contempt of its orders. For the meantime, this issue is put aside, and could be considered if and when appropriate process to deal with it is before the Court.

10. The issue before the Court now, is whether the Interim Orders should be struck out or set aside. The Applicants urged the Court to do so because, they claim that Ope Land is only a smaller portion of Lokinasagalea Customary Land situated on North Gela; the ownership of Ope Land has been decided by the Boli House of Chiefs on 21 November 1998, and was sub divided between Ismael Tarika of the Haubata tribe and Lise Tarai of Kakau tribe, and therefore, the customary ownership of Ope Land had already been settled. The Defendants say that, the decision of the Leitongo House of Chiefs is null and void because the 1998 decision of Boli House of Chiefs is still on foot.

11. The parties to the case before the Boli House of Chiefs in 1998 were Ismael Tarika and Lise Tari, regarding the ownership of Ope Land. Percival Hagi and his tribe were not parties to that case. That case is therefore not binding on them.

12. There is evidence that the Applicants have destroyed the Claimant's tambu sites on Ope land. The extent of the destruction and damage has not been assessed. They have a right to seek remedy to save what remains of their tambu sites which connect them to their history and genealogy to that land.

13. This Court lacks jurisdiction to hear disputes over ownership of customary land. That power vests with Local and Customary land Appeal Courts.

14. A Sworn Statement in support of the application to strike out or set aside the interim orders was filed by Mr Patrick Viti. His connection with the land in dispute is unknown. All that the Court knows about him is that he may be an employee of the First Applicant. Mr Viti alleges that the owners of Ope land, Ismael Tarika and Lise Tari have put their finger prints on Annexure marked "PV2". There is only one figure print on PV2. That is the left hand thumb print of Lise Tarai. There is no other figure print, except the signature of some person. If Mr Tarika and Lise Tarai endorse annexure PV2, why did they not file Sworn Statement to support their ownership of Ope land?

15. The Court notes that a "Form LC Civil 3" Form pursuant to Section 12(2) of the Local Court Act (Cap.19) has been filed in respect of the case between Percival Hagi -v- Ismael Tarika before the Leitongo Chiefs. This clearly shows that the ownership of Ope Land has not been settled, and is still in dispute between the parties.

16. This Court does not have power to decide ownership of customary land as alluded to above. However, this Court does have power to aid the local Court,[1] to maintain the status quo between the parties, while the Court decides the issue of ownership of Ope Land. This dispute will go before the Local Court and that an injunctive relief can be granted.[2] This court therefore will refuse to strike/set aside the interim orders between the Claimant and Ismael Tarika.

17. In the circumstances this Court will make the following orders:

(1) A permanent injunction against the First and Second Defendants, by themselves, their servants, agents and others from entering Ope Land on North Big Gela, Central Islands Province, for purpose of carrying out logging operations and/or any related activities thereon until further order or orders.

(2) An Order that the First and Second Defendants remove all their logging machineries and equipment from the land forthwith.

(3) An order that the first and Second Defendants fully account for all logs extracted from the land. The logs are to be sold and their proceeds to be deposited into a Trust Account in the joint names of the Solicitors for the parties in this case, and not to be paid out without order or orders of the court.

(4) Order that the First and Second Defendants pay the costs of the Claimant of this application on indemnity basis.

(5) Penal Notice is to be attached to these Orders.

Order accordingly.

THE COURT

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^[1] Simbe v. East Choiseul Area Council and others [1999] SBCA9
^[2] Veno and another v. Jino and others Civil Appeal Case No. 2 of 2004.