Talokoro v Omex Company Ltd [2011] SBHC 179; HCSI-CC 67 of 2011 (27 September 2011)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 67 of 2011

BETWEEN:

JAMES TALOKORO
(Representing his brothers, sisters, family
members and the land holding group of Kidipale Tribe)
Applicant

AND:

OMEX COMPANY LIMITED
First Respondent

AND:

LAWRENCE PONGO
Second Respondent

Date of Hearing: 15 August 2011

Date of Ruling: 27 September 2011

B Etomea for Applicant
M Pitakaka for First and Second Respondent

RULING

1. The Applicant, James Talokoro, is seeking an interim restraining order against the First and Second Respondents (the Respondent), their agents and servants, from transporting logs by access road through Tamimidi, Kosatsara and Pukativu customary lands to Dumu log pond on West Guadalcanal. He also seeks costs of this application to be paid by the Respondents.

2. The Applicant relies upon a Chiefs' decision and a local court recorded decision as authority containing evidence of his ownership of these lands. The land case was between Dominico Baona v James Talokoro. There was no written copy of the Chiefs decision in court. However, he sought to show that the proceeding and the decision of the Chiefs was, as contained in the Customary Land Dispute (Accepted Settlement) Form 1 Civil 4, issued under the Local Court Act (Cap.46). The summary of the decision of the Chiefs is in paragraph 7 of the form, states: "(1) That the lands belonging to the (kekepuala) and the Teitabu Kidipale tribe should return to the defendant due to the custom called, (Soni Chupu) of (Sage Visu) (Returned) to the complainant Dominico Voki and also to the Kidipale tribe. (2) And that Aloisio Samane and James Talokoro from the Kekepuala Kidipale tribe and also the caretaker of the Teitalu Kidipale tribe are the true (Paleva) (post) of the lands that belong to the Kekepuala Kidipale tribe, and they have power to all the said Kidipale Tribal Lands in Satona Area".

3. The Guadalcanal Local Court case no. 18/95 was recorded as being held at the Magistrate court Chamber on 12 December 1995. The presiding members of the court were; Pio Chodovele President; Joseph Tabala member; Stephen Bosa member and Billy Kerepiniano Secretary. The Plaintiff in the case was Dominico Voki and the Defendant was James Talokoro. The matter before the court was stated as the: "Recording of the Accepted Settlement form from the Chiefs concerning sub-tribes of Kekepuala & Teitalu of Kidipale Tribal Lands of Satona".

4. Mr. Mario Chango denied being a witness for Dominico Voki as appears in Form 1 Civil 4 dated 28 of May 1988, at the Chiefs hearing. Mr. Billy Kerepiniano, was recorded as the Local Court Secretary when it sat at the Magistrate Chamber on 12 December 1995. But Mr. Kerepiniano denied being present, and being the Secretary of the Court on that date. He also confirmed that the decision of the Chiefs was never registered as decision of the Local Court. This was further confirmed by Mr. Timothy L Ngele a local court officer. At the Chiefs hearing, Mr. Mario Chango was recorded as being a witness for Mr. Dominico Baona, but he denied being a witness during that Chiefs' proceeding.

5. The interim restraining order sought in this application is against the Respondents who are said to be using an access road going through Kosatsara, Pukativu and Tamimidi customary owned by the Kidipale tribe. But Mr. Melania Ranga said that this access road was only used by Dalsol in the past. That access road is not being used by the Respondents. Mr. Lawrence Tangisi says that the hauling of logs to Dumu log pond by Omex is now done through the new access road which goes through Pasahu Customary Land and not as claimed by the Applicant. Lawrence Pongo says that Kosatsara, Pukativu and Tamimidi customary lands were logged by Dalsol Logging Company and not the Respondents. The access road used by Dalsol had been diverted to pass through Pasahu customary land bordering Ngalibonu customary land.

6. The decision on whether this court should grant the interim restraining order sought by the Applicant depends upon whether Omex is still using the access road going through the customary lands referred in paragraph 5 above. The answer is clearly not so as mentioned in the following paragraph which contains the finding of this court.

7. The Respondents have not transported their logs through the road which runs through Kosatsara, Pukativu and Tamimidi customary lands. That means the Applicant rights, if any, over those customary lands, have not been violated by the Respondents. It therefore follows that there is no basis on which to grant any interim order against the Respondents. The order sought by the Applicant is therefore refused and the application is dismissed. The Respondents costs of this application be paid by the Applicant. Order accordingly.

THE COURT