Iu v Kenipepeana [2011] SBHC 81; HCSI-CC 240 of 2011 (31 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 240 of 2011

BETWEEN:

MICHAEL IU, FRANCIS NAHO, PHILIP ARAHAIPEU, RAPHAEL HEAI AND VENASIO BASIARE (Representing themselves & the members of the Karepuri Tribe of Tarapaina, South Malaita, Malaita Province)
Claimants

AND:

PETER KENIPEPEANA, JOE MANEUSUA AND STEPHEN KENIOME
(Trading as Indispensable Lumber Co. Ltd.)
First Defendants

AND:

SAMLIMSAN (SI) LIMITED
Second Defendant

AND:

JOHN TOIRAENA, NELSON NAMONIA, JOHN KARIAHA, PATRICK SIKOIASI AND ESTHER SUKAIA.
Third Defendants

AND:

THE ATTORNEY GENERAL
(Representing the Commissioner of Forest Resources)
Fourth Defendant

AND:

THE PROVINCIAL EXECUTIVE OF MALAITA PROVINCIAL GOVERNMENT
Fifth Defendant

HEARING: 17 August 2011
RULING: 31 August 2011

D Marahare for the Claimants/Applicants
S.Balea for the First and Second Defendants and Third Defendants
E Kii for the Fourth Defendant
No appearance for the Fifth Defendant

RULING

Mwanesalua J:

1. The Applicants apply for:
   
   1. Leave to file a claim for judicial review.[1]
      
   2. An interim order restraining the First, Second and Third Defendants, by themselves their agents or servants from conducting further operations on Arai Land ("the land") pending the determination of the question as to the ownership of the Land before the appropriate forum and/or further orders of the court.
      
   3. An interim order directing the First and Second Defendants, by themselves, their agents and or servants to remove all their machines and equipment from the land pending the determination of the question as to the ownership of the land before the appropriate forum and/or further orders of the court.
      
   4. An interim Order that all merchantable logs felled from the Land shall remain on the Land, or if already removed from the Land by the Second Defendant or its servants, agents or the contractor, be sold and all proceeds from the sale of the said logs be paid into court pending further orders of the court.
      
   5. An Order directing the First and Second Defendants to disclose all details pertaining to and account for the monies expended and/or paid by the Second Defendant pursuant to the logging operation on Arai Land.
      
   6. An order restraining the First and Third Defendants by themselves, their agents and/or servants from engaging in any dealing and/or negotiation over the said land pending the determination as to the question of the ownership of the Land before the appropriate forum and/or further orders of the court.
      
   7. Cost of and incidental to this application.
      

Facts not in dispute.

2. The Applicants are members of the Karepuri Tribe of South Malaita. The Land in dispute is situated in South Malaita region in Ward 21. The Third Defendants from East Are Are are the individuals who had been determined by the Fifth Defendant to be the appropriate persons to grant timber rights over Arai Land. The First Defendants are holder of the felling Licence No. A10736 that covers Arai Land. The timber rights hearing took place on 31 October 2007 at Rara Village in East Areare. The First and Second Defendants had landed their logging machines on Arai Land after 8 April 2011 and commenced operations immediately after that. There were forms I, II, III and IV in respect of Arai Land in existence. The Applicants did not appeal against the Fifth Defendant's determination dated 30 November 2007. Hutohuto House of Chiefs (HHC) made a determination on Arai Land dated 9 September 1994. The HHC determination was overturned by Malaita Local Court by its decision of 12 November 1996. Aulutalau House of Chiefs (AHC) made another determination on Arai Land on or around 6 June 2011 holding that both the Applicants and the Third Defendants do not have customary rights of ownership over Arai Land. The Applicants have lodged an appeal before the Malaita Local Court on 20 July 2011 against the AHC's determination. The appeal is currently pending determination.

3. The Applicants seek leave to file judicial review to quash: the decision of the Fourth Defendant (the Commissioner of Forests) to the issuing of felling Licence No. A10736 on 11 June 2009 to the First Defendants; the determination by the Fifth Defendant (Malaita Provincial Executive) dated 8 August 2008, that the Third Defendants were the appropriate persons to grant timber rights in respect of Arai Land; and the timber rights process itself conducted by the Fifth Defendant for the period from 16 August 2007 to 11 June 2009.

4. The Applicants rely upon the Sworn Statements of Francis Naho and Jimmy Manewai both filed on 28 June 2011 in support their application. The Applicants say that the Sworn Statement of Francis Naho raised tribal Issues. They are whether or not notice was in fact issued and posted in all areas affected by the Form 1 Application; whether or not the venue of Rara Village in East Areare in Ward 20 was an appropriate "locality" as envisaged under the Forest Resources and Timber Utilisation Act [Cap.40) to hold the purported timber rights hearing in respect of Arai Land, which land is situated in Ward 21 in South Malaita; whether or not the Fifth Defendant's refusal to accept the Applicants' objection at the purported hearing held at Rara Village in East Are Are was proper in law; whether or not the Third Defendants have the requisite right in custom to execute the Standard Logging Agreement ("SLA") with the First Defendant? Or the validity or otherwise of the SLA, in view of the fact that the customary ownership of Arai Land is still pending final determination; and whether in the circumstances of the case, the Fourth Defendant should exercise his power under Cap. 40 in cancelling or suspending the First Defendants' Felling Licence.

5. The First and Third Defendants' case is that the Land is owned by their Arai tribe. The Applicants settled on it without their consent in 1993. They proved their ownership of the Land in a case between them and the Applicants before the Hutohuto House of Chiefs ("HHC") on 9 September 1994. The First Defendants traded under a company known as Indispensable Lumber Company Ltd. This company then applied to the Fourth Defendant to acquire timber rights over the Land. The Fifth Defendant determined that the Third Defendants were the persons lawfully entitled to grant timber rights over the Land to the First Defendants. The Fourth Defendant then issued Felling Licence No. A10736 to the First Defendants who engaged the Second Defendant to carry out logging on the land as the contractor on its behalf. When the Machines and Equipment arrived on the Land, the Applicants filed a case against the First and Third Respondents before the AHC to determine the ownership of the Land. The First and Third Defendants declined to attend the hearing because they considered that their ownership of the Land has already been determined by the (HHC) as stated above.

6. The First and Third Defendants opposed the interim relief sought by the Applicants. They allege that the Applicants have no locus standi to pursue their claim; the claim is vexatious and frivolous and should be struck out; they further allege that the claim is an abuse of the court process and should be struck out; and that the Applicants failed to prove any cause of action, hence the claim is vexatious and frivolous and should be struck out.

7. The decision of HHC went before the Malaita Local Court on 12 November 1996. The court found that the HCC had no jurisdiction to hear and determine the dispute. This was because the HCC Chiefs lived in West AreAre and not within the locality of the Land. The law says that only Chiefs who live within the locality of the Land in dispute have jurisdiction to hear and determine the ownership of Customary Land.[2] The court then acted upon its power[3] to refer the dispute to be heard and determined by the Hauwariwari Chiefs. It seems that these Chiefs live within the locality of the Land. However, this referral by the said local court was not complied with.

8. The First and Third Defendants contend that the Applicants have no locus standi regarding the land as the HCC have decided the ownership of the land in their favour. This is not right as the Local Court overturned the decision of HHC by holding that the HHC did not have jurisdiction to hear and determine the ownership of the land. The implication was that the decision of the HHC was set aside and referred the case to Hauwariwari Chiefs for fresh hearing and determination of the dispute.

9. Since the decision of the HHC has been set aside, it ceased to exist as binding between the Applicants and the First and Third Defendants. That raises further issues regarding the validity of the SLA and the other matters raised in paragraph 4 of this Ruling.

10. The triable issues pointed out in this application need to be considered and resolved by this court, later, apart from the determination of the ownership of the land in the appropriate forum. This court is not prepared to strike out this application as sought by the first three Defendants. The court is satisfied that substantial justice requires that this court exercise its discretion under Rule 15.3 .9 of the Rules for the Applicants to have extension of time to file a claim for judicial review outside the 6 months period provided under Rule 15.3.8. The court will accordingly grant 14 days from the date of this Ruling for the Applicants to file a claim for judicial review.

11. This is a case where it would be necessary to grant injunction to preserve the status co between the parties while the ownership of the land is sorted out by the relevant forum.

12. The court will accordingly grant the orders sought by the Applicants in this application. Order accordingly.

THE COURT

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^[1] Chapter 15.3 of the Courts (Civil Procedure) Rules 2007 (the Rules)
^[2] 5.11 of Local Courts Act [Cap. 19]
^[3] 5.13 (e) of the Local Courts Act [Cap. 19]