Bato v Boso [2011] SBHC 75; HCSI-CC 619 of 2005 (24 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, J)

Civil Case, No. 619 of 2005.

BETWEEN:

DONALD BATO
VICTOR PAULSEN
JAMES BARLEY
BARNEY PAULSEN
(Suing on behalf of Lamupeza tribe)
Claimants

AND:

RICHARD BOSO AND HOPEFUL PIOSASA
First Defendant

AND:

JETTY NIVAH AND HEDISON NIVAH
(Trading as Nivah Integrated Development Company)
Second Defendant

AND:

BULACAN INTEGRATED WOOD INDUSTRY (SI) LIMITED
Third Defendant

Date of Hearing: 19th August 2011.

Date of Decision: 24th August 2011.

Mr Keniapisia for the Claimants
Mr Tegavota for Defendant 1, 2, and 3

DECISION ON APPLICATION FOR SUMMARY JUDGMENT.

Faukona, J: This application was filed on 15th December 2010 pursuant to rule 9.57. The Rule gives a privilege to the claimant to apply to the Court for a summary judgment, where upon perusing the respond and defence filed by the Defendants, believes that the Defendants do not have any real prospect of defending the Claimant's claim.

2. The original claim is contained in the amended claim filed on 27th November 2008. And it can be summarized as thus; that the Claimants (lamupeza tribe) are the owners of madekolokolo and kakarumu blocks of land, (also known in this case as blocks 5 and 6, added is mine). That the defendants have entered madekolokolo and kakarumu blocks and removed logs without the approval of the Claimants. That the Defendants have caused damage on those two blocks.

3. This case started way back in 2005. Since then a number of applications in connection to this case were filed and some had been disposed of. Two such relevant cases resulted in an interim order made by this Court of 4th April 2006, with further amendments to paragraph 1 (ii) made by consent order dated 15th February 2008. The orders are still on foot. Another important case was an application to strike out, seeking declaration that the two councils of chiefs decisions dated 30th August 2006 and 29th November 2007 respectively were invalid. This Court in exercising its discretion, for the reason therein, decline to grant the declarations and dismissed the claim against all Defendants:

Ownership of customary land Madekoloko and Kakarumu, also known as blocks 5 and 6 respectively.

4. I am quite conscious and mindful in dealing with the issue of customary land ownership; at best, attempt is made not to encroach into a sphere of influence that is best and legally vested upon the chiefs and the local courts to exercise their jurisdiction. However, suffice to brief on the issue.

5. Mr Keniapisia on behalf of the Claimants argues that the two blocks are owned by lamupeza tribe which the Claimants are members of. Their rights of ownership are well documented by the two chief's decisions. The validity of the two decisions was tested in this Court on 30th August 2006, by an application by the Defendants.

6. The Court refused to grant the declarations sought and dismissed the claim. At best, for now, it is well settled that the decisions are valid and that lamupeza tribe is the customary land owner of the two blocks of land.

7. Mr Tegavota submits that they had filed a sworn statement in April 2011, by Clement Base, opposing this application for summary judgment. Paragraph 3 of Mr Base's sworn statement says that central parara customary land had been demarcated into various blocks. Each block was allocated to each tribal member with full support and blessing of the tribe. Once that has been done the right of ownership transfer to individual tribal member who then has the legitimate power to determine whatever cause, even to dispose of at will. The tribe is merely a custodian.

8. Mr Tegavota further adds that the first chief's decision comprise of members of lamupeza tribe themselves. Nivah's group were not present for the sole reason that they were not given sufficient time to prepare and attend. Consequently the decision by the chiefs did not vest right of ownership on the tribe or the Claimants, but individuals who then has absolute authority to deal with their own blocks – see allocation of blocks to individual on page 10, exhibit "DBI" attached to Mr Bato's sworn statement. However, nothing much is said about the second determination by the Roviana Chiefs except that the conduct of that proceeding was one sided in the absence of the Defendants.

9. Emerging from the submissions are two distinctive customary land tenure systems. One is the usual and common principle where customary land is owned by a tribe and the appointed chiefs are the custodians or representatives who has the full controlling power and management authority, ensuring no one is marginalise in terms of food security, cultivation, hunting and other interests, but all should have equal access and right to achieve maximum benefit of their land resources. In major development, the chiefs or representatives on behalf of the tribe, participate and where necessary ensuring consensus is obtained from all members of the tribe before a propose development is pursued.

10. The second customary land tenure system perhaps adopted for convenience reason is where a tribe which owns the customary land subdivided and allocated to all its individual members as beneficiaries. This is quite uncommon in Solomon Islands. However it can be perceived as a possible option if the full tribe agrees to it.

11. From exhibit "DBI" attached to Mr Bato's sworn statement filed on 14 December 2010 (Page 10) the Chiefs agreed not to tamper with the previous demarcations and allocations. Apparently as shown in minutes of the first chiefs meeting on 30th August 2006, that additional allocations were made to other members to own blocks as well. The problem with this system, in my humble view, is that it may promote dual ownership claim which may perhaps create internal conflict in terms of rights of ownership, decision making regarding development aspects and right of disposal, if each individual member so decided. I said dual ownership because the tribe may argue it still has the right of ownership and those who are allocated with blocks may also argue that right had already been transferred to them on the date of allocation. There has to be a demarcation line drawn as to who has the full right of ownership over the demarcated and allocated blocks. This may not necessary be the case if it is well managed by the Chiefs.

12. Noted from the list of names on page 10, that those who were allocated with blocks, for instance Zinia Ghemu had sold her block Vilorae II to a man from Choiseul. The question is, has the proceed of that sale benefited herself, or has it been shared among the tribal members if the ultimate right of ownership still remain with the tribe. It seems to show that on the date of allocation and transfer the right of ownership also transfer from the tribe to each individual owners of each block. In such circumstance, there is no right left for the tribe to assume and exercise. Individuals have absolute rights of ownership and right to dispose their blocks of land. Or is it the case where the proceeds of the sale had to be shared among the tribe which I doubted. What transpired in this sort of system of customary land tenure adopted in central parara and elsewhere is that after such allocation and transfer the tribe becomes a figure heard with no rights of ownership to the land. The final determination in respect of the blocks vested entirely on individuals and families who own them. It is not a right of usage alone as asserted by the Claimants. That ascertain contradicts Mrs Zinia's right to sale the land, a right she alone has, and the benefits thereof which she alone has the right to enjoy and not the tribe.

13. From that evidence it is clear that blocks 5 and 6 are within the bounds of the customary land tenure system adopted by lamupeza tribe in Central Parara. The land had been subdivided and had been allocated to individual ownership rather than being vested on the tribe. The tribe may retain the controlling and the coordination authority but the final decision and rights vests on individual block owners.

The Role of the Chiefs.

14. There is reference to Civil Case No.32 of 2009 under exhibit "DB3" of Bato's sworn statement filed on 14 December 2010. I have briefly introduced that case on paragraph 5 of this decision. The decision by His Lordship Cameroon J was rather upon the face value of the two decisions. He did not go around and look at other issues; two are quite significant. One is the Constitution or composition of the chief's panel, and secondly whether the Chiefs had complied with the Local Court Act, Section 11 and 12. Section 11 define chiefs to mean chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute. That definition can simply be interpreted as; the chiefs must be recognised as such by both parties to the dispute. They must come from the area where the land in dispute is located. That does not deter chiefs from other areas hearing a land dispute in Vonavona, provided both parties agreed to.

15. The second point is provided under section 12 (1) (a); which says, no local Court shall have jurisdiction to hear and determine customary land dispute unless it is satisfied that the parties to the dispute had referred the dispute to the chiefs. It means, on record of the chiefs there should be parties to the dispute clearly named and well identified. In the first hearing there was none. Then there has to be a dispute referred to the chief, meaning the land in issue, with demarcated boundaries which will become a subject matter or issue or dispute which requires the chiefs to resolve. Again this is not shown in the minutes of first chiefs hearing. It is indeed another setback.

16. The third point was encompassed by Section 12 (1) (b) which says that local Court cannot determine customary land dispute unless it is satisfied that all traditional means of solving the dispute have been exhausted. One common example in this situation is where the Chiefs had issued notices of hearing to the parties but one party persistently refused to attend. In such situation there is nothing the Chiefs can do to resolve the dispute. Therefore they have to refer the dispute to the appropriate Local Court with explanation that they have attempted to get the parties to resolve the dispute but appear to be difficult because one party persistently refuse to appear. That clearly depicts that the chiefs have exhausted their powers to resolve the dispute. There is no such thing as one side hearing by the Chiefs. Two parties to the dispute must appear at the hearing, otherwise Section 12 (1) (c) must apply. The Chiefs cannot apply civil processes adopted by the Courts. For instance Order 28 rule 3 of the Magistrates Court Act, should the Court satisfied there is sufficient prove that notice of hearing has been served, the Court may opt to hear the case in the absent of the Defendant. In contrast, when measuring what had been done by the chiefs to what the law requires, there is an absolute set back.

17. I'm afraid I cannot go further than that. Let the local Court deal with the rest. In the same token I cannot interfere with His Lordship Cameroon J's decision. I have no power to change the decision of another Judge sitting on the same level as I am.

Compliance with FRTU Act.

18. There is no dispute that the two persons whose names identified as persons who have rights to grant timber rights in blocks 5 and 6 are from lamupeza tribe, the same tribe as the Claimants. Their involvement had made it possible for the issuant of a logging licence to the second Defendants. There is no dispute that the third Defendant entered into the two blocks and fell logs for export granted under licence No. A10503.

19. The dispute is that the Claimants have denied giving any approval to the Defendants to carry out logging on the two blocks. Further, the two individuals were not authorized by lamupeza tribe to enter a timber rights agreement with the second Defendants. In fact Mr Keniapisia has missed the point by submitting that there was no timber rights agreement, whilst there was. There was a standard logging agreement identified in exhibit "DBO8" attached to Mr Bato's sworn statement filed on 18th July 2011; and that is exactly the document refer to in the case of Success Company Ltd V Takolu and others[1]. In fact His Lordship Chetwynd, J adopted the principle lay down in Simbe V East Choiseul Area council[2].

20. With the validity of the two Chiefs decision the Claimants assert that they have not granted permission to the Defendants to carry out logging on the two blocks. In refuting such claim the Defendants rely on the fact that the two persons who signed for blocks 5 and 6 also allocated and signed in a timber rights agreement with Pari Development Company. Later it was learned that that assertion was incorrect, only one did sign. The Defendants also rely on the Resolution sign by certain members and land owners of blocks 5 and 6 that the two blocks were inclusive under licence A10503 issued to Nivah Integrated Development Company. The reason for the Resolution is not clear, and for what purpose and usefulness after the licence had been issued, further impaired my understanding. The normal processes under the FRTU Act are that upon determination of Form 1 application, the appropriate Provincial Executive Government determines and identify persons lawfully entitle to grant timber rights. The same persons will sign a timber rights agreement with the developer. I agree with Mr Keniapisia the Resolution which the Defendants based upon to qualify them to enter blocks 5 and 6 exhibited as BS5 of Base's statement in inconsistent with the standard logging agreement in From 4.

21. I have interrogated Mr Tegavota in Court where possible produce copies of Form 1, 2 and 4. There was nothing produced. He submits that he could not able to find copies of any other document. All he could find is a copy of licence No. A10503. However, I later found a copy of the standard logging agreement signed between second Defendants and the landowners in Bato's sworn statement under exhibit "DBO6".

22. I find it difficult to accept the Resolution the Defendants rely as an agreement which validated them to enter blocks 5 and 6. Agreement to enter into customary land and extract log must be done on the standard form and not in any other form or of any nature. Anything that fall short of the standard form cannot be sustained as a logging agreement.

Is blocks 5 and 6 within mamou concession area.

23. There are conflicting arguments in regards to this very significant issue. The Claimants say no, whilst the Defendants say yes. I have the privilege of perusing the standard logging agreement in Nivah Integrated Development Company and I find that mamou concession area covers Ngaki, Vilorae, Pitikove point, block 3 and Nepia. It appears it does not include blocks 5 and 6. It would have been better if the Defendants should produce form 2 determination which clearly identify who has the right to grant timber rights in a particular block of land. I am obliged in law to determine the evidence available before me. On that limitation I cannot manoeuvre beyond. On the evidence it truly appears that mamou concession area did not include blocks 5 and 6.

24. In furtherance Mr Keniapisia refer me to the affidavit sworn by the former Commissioner of Forest the late Mahlon Ali under exhibit DB03 attached to sworn statement of Mr Bato filed on 18th July 2011. Mr Ali deposed that the areas covered under the concession does not cover operation blocks 1, 3, 5 and 6 but only covers blocks 2 and 4. Ali's evidence was referred to in a decision made by His Lordship Mwanesalua, J on 7th March 2006, that the Defendant conducted logging on blocks 1,3,5 and 6 which are not covered by felling licence No.A10503. There is sufficient evidence to proof that blocks 5 and 6 are not definitely in mamou concession area. Sketch demarcated boundary on a map is not the best and accurate proof. Demarcated boundary lines can be manipulated to suit one's own interest. The best proof is the Provincial Executive determination and the standard logging agreement documents.

25. The next piece of evidence was the confession alluded by Mr Nivah in a statutory declaration signed on 1st August 2006. In that declaration Chief Nivah admitted that he had included in his propose concession lands or blocks own by lamupeza tribe. The blocks are kakarumu, pari, paravoe and givusu/kongu seni. He further stated lamupeza can now proceed and enter central parara and do anything including harvesting timber resources.

26. Before swearing the statutory declaration, Mr Peter Ratusia wrote an undated letter countersigned by Chief Nivah - see exhibit "DB2" attached to Mr Bato's affidavit filed on 28 August 2006. Paragraph 3 of that letter stated, "Having recognized your rights over blocks 5 and 6, it is my privilege to offer you two options. The first option was a settlement of royalty of $100,000.00, 2% of royalty offer for blocks 5 and 6. The second option is the royalty of the injuncted shipment and 2 % of royalty offer for blocks 5 and 6.

27. In another letter dated 13th June 2006, addressed to Mr Bato - see same exhibit as above. In that letter Chief Nivah said in paragraph 2, "In this respect the Ago/Nivah tribe recognizes that the rights over blocks 5 and 6 belong to Node family and clan for the purpose of representation of lamupeza tribe in those matters"

28. It may have appeared after the affidavit was signed by Chief Niva, that he denied that he was not in his right mind when signing it. There was allegation that he was under influence of liquor. That allegation was rebutted by magistrate Ms Esther Lelapitu in her affidavit filed on 28 August, 2006, that Mr Nivah was sober and that she had no reason to belief that Nivah was drunk or had been unduly influenced. In fact Nivah had attended to her and she administered and witness the oath and signing of the affidavit.

29. On the evidence of admission, it affirms that the claimants are the rightful owners of blocks 5 and 6. In doing so Chief Nivah accepted the consequence of his own volition. He even offered to recompense for his unlawful entry into the two blocks. By that specific act, Chief Nivah even went to the height of swearing an affidavit, grounded a strong case for the Claimants. It would not have been necessary to conduct any chiefs hearing at all. Evidence of admission tantamount to no issue or dispute in existence. Therefore not necessary to go to the chiefs or even court for that matter. The two respective blocks are owned by lamupeza tribe [and whosoever been allocated] has been verified to be true and correct by Chief Nivah. Going to the chiefs and or Court would not change the acknowledgment Chief Nivah had for the Claimants that they were the true owners of blocks 5 and 6. Even if the Court would invalidate the two chiefs' decision, it would not change the rights of ownership Mr Nivah had confirmed which vested on the Claimants over blocks 5 and 6.

30. Having considered the evidence before me, I am satisfied on the balance of probability that the evidence has proved the Claimant's believed that Defendants do not have any real prospect of defending the claimant's claim.

31. On the issue of injuncted royalties, the Defendants argue that they were not derived from blocks 5 and 6. They were royalties derived from mamou licence concession, but from different blocks not claimed by the Claimants. The Defendants objected to the report made by the Forestry Department which based on estimates. Mr Keniapisia submits that the report is the best the Forestry Department can do. And further submits that the Defendants have failed to provide an alternative report. In fact there was a report exhibit"BS6" attached to Mr Base's sworn statement filed on 6th September, 2011.

32. I noted from the summary report compiled by the Forestry Department. It is of course an estimate based on 2006 harvesting plan. However, the report indicated a 2006 set up projected for 2006 operation for blocks 5 and 6 and no other blocks.

33. I have perused the maps exhibit BSI and exhibit DBI which appear the same. However, when I further peruse the map attached to licence No.A10503, the blocks appeared bigger in particular block 5. Also deduce from the Forestry Department report that 76.67% of block 5 had been logged and 64.29% of block 6 had been logged.

34. The amount of $7,104,542.23 in the Forestry's report was the total value of logs fell and some exported. This case concern with royalties alone, the amount should far less than that. In the Defendants report a total amount of $27889.79 royalty was released to both Mr Kaheveli and Mr Niniki. It was paid into their personal bank accounts. It is not clear how much royalty was injuncted. In any event the two reports concluded with large difference in value in between. I noted that Forestry report might include logs being felled and not hauled or hauled and consequently not exported. In any case should injuncted royalties derived from other blocks why no owners of other blocks complaint, or file a case. It would appear, no other persons bother to file a claim for those royalties. Particularly those who grant timber rights in those other blocks. It gives me no option to accept the report filed by the Forestry Department as more appropriate.

Orders

1. That summary judgment is entered for the Claimants in terms of amended claim filed on 27th November 2008.

2. That royalties and interest held in trust to be paid to John Keniapisia Lawyers Trust account for the Claimant.

3. That the 1st, 2nd and 3rd Defendants pay the cost of and incidental to this application.

---

^[1] CC 80 of 2009, paragraph 5.
^[2] SBCA CA-CAC 8 of 1997 (19/2/1999).