Jino v Amoi [2011] SBHC 151; HCSI-CC 323 of 2011 (13 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 323 of 2011

BETWEEN:

GREEN JINO, LEI SEKE AND WILLIE KAREJAMA –
(Representing Mapeli Jino, Timothy Lianga and Isoa Nika Clans)
First Claimants

AND:

NAMA DEVELOPMENT COMPANY
Second Claimant

AND:

CHACHABULE AMOI
First Defendant

AND:

CHACHABULE AMOI
(Trading as Ilolo Cattle Development Project)
Second Defendant

AND:

CHACHABULE AMOI
(Trading as Fair Trading Milling)
Third Defendant

AND:

RIMA LIMITED
Fourth Defendant

AND:

ATTORNEY GENERAL
(Representing Ministry of Agriculture & Livestock)
Fifth Defendant

AND:

ATTORNEY GENERAL
(Representing Commissioner of Forests)
Sixth Defendant

Date of Hearing: 30 November 2011
Date of Hearing: 13 December 2011

D. Marahare for First and Second Claimants
A. Ashley for First, Second and Third Defendants
Rano for Fourth Defendant
Kii for Fifth and Sixth Defendants

RULING

Mwanesalua J:

1. This application was filed on 17 August 2011 by the First Claimant seeking the following orders:
   
   1. An order restraining First and Second Defendants from conducting any work of whatsoever nature in relation to Ilolo Cattle Development Project on Gulagulasa customary land, Marovo Lagoon, Western Province.
      
   2. An order restraining First and Third Defendants from conducting and or carrying out any further milling activities on Gulagulasa customary land, Marovo Lagoon, Western Province.
      
   3. An order restraining the First and Fourth Defendants from conducting any logging activities of whatsoever nature on Gulagulasa customary land.
      
   4. An order that any proceeds of logs felled and exported from Gulagulasa customary land be paid into an interest bearing deposit account in the names of the Solicitors for the parties.
      
   5. An order that the First and Third Defendants do account for and provide tally and proceeds of trees extracted, milled and sold from Gulagulasa customary land.
      
   6. Any further orders that this court deems fit to make.
      
   7. Costs.
      
2. The First Claimants are representatives of the Mapeli Jino, Timothy Lianga and Isoa Nika clans. They are also members of the Main Kuvotu Tribe who owns the Kuvotu land. They and members of their clans own land known as Gulagugalasa customary land. This land is situated on Vangunu Island and is bounded between the Chochole River and the Kolobangara River. Gulagulasa customary land is part of the Kuvotu customary land.
   
3. The First Claimant alleges that their Kuvotu Tribe owns the Gulagulasa customary land back as far as 1976 in a case between Vuitilyn Viulu -v-Reuben Ngatu. The Gulagulasa customary land was part of the land that was adjudicated between Vuitilyn and Reuben Ngatu in 1976. The First Defendant was not a party to this case.
   
4. The First Claimant says that on 15 and 19 February 2005, an acquisition hearing was held at Seghe on the Kuvotu customary land. During that acquisition hearing the First Defendant attended on behalf of his Tobakokorapa tribe as an objector. The Acquisition Officer said that the Kuvotu customary land which include Gulagulasa land belongs to the First Claimant's tribe.
   
5. In late 2010, the Second Claimant applied for the renewal of their Felling Licence A10108A over certain pieces of land including the Gulagulasa customary land. On 31 March 2011, the Sixth Defendant issued Felling Licence A10108A to the Second Claimant over Hihiovo, Olana Kiki and Malemale customary lands. Gulagulasa customary land was excluded from that Felling Licence.
   
6. The First Defendant has conducted several business activities including a cattle project, timber milling and logging within Gulagulasa land. The First Defendant has a Felling Licence under Section 4(1) (c) of the Forest Resources and Timber Utilisation Act (Cap 4) to fell and remove trees from land belonging to his Tobakokorapa Tribe to establish a Cattle Project on Vangunu Island. There is dispute over the customary ownership of Gulagulasa Land between the First Claimant and the First Defendant. That is a matter for the Chiefs to resolve between these parties. This Court does not have the power to do so.
   
7. In the final paragraph of statement of the case, the Applicant seeks the following orders;
   
   • (a) A permanent injunction against the First, Second, Third and Fourth Defendants relieve to logging and other business activities on Gulagulasa customary land.
     
   • (b) Eviction of the First Defendant together with his relatives, wantoks and agents.
     
   • (c) The First and Third Defendants to provide tally of all trees extracted and milled from Gulagulasa customary land.
     
   • (d) The First and Second Defendants to provide all information on proceeds of trees extracted, milled and sold from Gulagulasa Customary land.
     
   • (e) Any proceeds of logs extracted and exported from Gulagulasa customary land be paid into a joint solicitors account in the names for the parties.
     
   • (f) That the Second Claimants Licence NO. A10108A be amended to confirm with the land names contained in the Felling Licence NO. A10108 and specifically include Gulagulasa customary land.
     
   • (g) Damages for trespass to be assessed.
     
   • (h) Interest and cost.
     

These are the reliefs sought in the claim. They would be decided when the claim is heard and decided.

8. The First Defendant is a member of the Tobakokorapa tribe. His case is that his tribe owns land variously called as either Kolobangara or Gulagulasa land. His grandfather used to work on this land in 1974. There was a dispute regarding the ownership of the land between Mr Vuitlyn Viulu and Mr. Reuben Ngatu. That dispute was heard by the Marovo Local Court in 1976. The decision was made in favour of Vuitlyn Viulu. The First Defendant, Mr. Chachabule Amoi, explained that Mr. Viulu and Ngatu were not members of his Tobakokorapa Tribe.
   
9. Then Mr. Peseti Kuiti (represented his Kuvotu Tribe) in Civil Case No. 268 of 2005, filed this case at this Court. The orders sought in that case, among others, were to restrain First Defendant, his servants and agents to vacate Gulagulasa land immediately and be restrained from felling and extracting trees on Gulagulasa land. The issues raised in that civil case relate to the correct name of Gulagulasa land plus boundaries of Gulagulasa land and Tobakokorapa land. This Court said that those issues concern custom which the High Court did not have jurisdiction to hear and determine. There was no evidence before the court then, that the dispute had been heard by the Chiefs. This Court said it could not grant the orders sought. The case was therefore dismissed with costs.
   
10. In August and September 2005, the First Defendant took part in a land acquisition process in relation to the acquisition of Kuvotu customary land for purposes of Oil development on Vangunu Island, in the Marovo Lagoon. The First Defendant's submission on behalf of his Tobakokorapa Tribe was that, "part of Kuvotu land included under the current Kuvotu land acquisition for oil palm development belongs to the Tobakokorapa Tribe".
    
11. The Land Acquisition Officer ruled that the customary ownership of Kuvotu land had been decided in the Marovo Local Court in 1976, in a case between Vuitlyn Viulu -v- Reuben Ngatu, where the court awarded ownership of Kuvotu land to Vuitlyn Viulu, a representative of the Kuvotu Tribe. There is evidence that the First Defendant had appealed this Acquisition Officer's ruling and is still pending determination at the Local Court.
    
12. This Court further notes from the material before it, that dispute whether Gulagulasa and Tobakokorapa are separate and distinct lands, or the names relate to one piece of land but known in custom by different names by the people living within the vicinity of the land. (See Exhibit marked "LS9" to the sworn statement of Lei Seke filed 17 August 2011 and the map attached therewith).
    
13. The Acquisition Officer delivered his acquisition report on Kuvotu Customary land acquisition 16 February 2006. The First Defendant lodged his appeal against the decision of Acquisition Officer on 10 May 2006. The First Defendant was not a party to the Local Court case between Vuitlyn and Reuben Ngatu in Civil Case No. 4 of 1976. The First Defendant's appeal against decision of the Acquisition Officer is still pending determination before the Magistrate's Court. In the opinion of this court, the Defendant's would be prejudiced if the orders sought in this application are granted prior to the determination of the appeal before the Magistrate's Court. The view of this court is that the acquisition process be allowed to take its course first. The application before this Court at the moment appears to be brought with no consideration to the First Defendant's appeal in the acquisition process. In the circumstances this application is refused and is dismissed with costs. The Applicant is to pay the First Defendant's costs of this application.
    

Order 1: The application is refused and dismissed.

Order 2: The Applicant is to pay the First Respondent's costs of this application.

Order accordingly.

THE COURT