Rofera v Kutai [2012] SBHC 155; HCSI-CC 267 of 2005 (12 December 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 267 of 2005

BETWEEN:

DENNIS ROFERA AND JOHN DIOKO
(Representing the Talaisango Tribe)
Claimants

AND:

MOVIN KUTAI, ROBERT BIFULA, DERRICK LEDIOMEA AND ALICK BEN
(Representing the Lumabora Tribe)
First Defendants

AND:

DR. GEORGE MANIMU AND BEN KOUTO, ISAAC TOSIKA
(Trading as Sundown Lumber Company)
Second Defendants

AND:

PACIFIC METRO LIMITED
Third Defendants

Date of Ruling : 12 December 2012

Philip Tegavota for the Claimants
Fakarii for the First Defendant

RULING

Mwanesalua J

1. This is an application filed on 19 February 2009 to determine questions whether: (1) the determination by the Arao House of Chiefs dated the 1st of April 2005 in favour of the Claimants, representing the Talaisango tribe is a valid determination pursuant to sections 11, 12, 13 and 14 of the Local Court Act (Cap. 19) and Schedule 3 of the constitution; (2) the decision of the Arao House of Chiefs is binding on the first defendant representing the Lumabora tribe until and unless it is set aside by the Local Court; (3) the felling and/or the extraction of logs by the second and the third defendants within Takibakwa land without the consent of the Claimants and the members of their tribe constituted an act of trespass.
   
2. The Claimants and their tribe own Takibakwa Customary land. They claim that the Arao House of Chiefs had determined the ownership and the boundary of that land on 1 April 2005 in their favour. The First defendants represent the Lumabora tribe, which owns Lumabora customary land. The Second Defendants were issued with logging Licence No. A10021 on 18 August 2002. It was stamped and signed by the Commissioner of Forest on 17 July 2003. That Licence was valid until 18 August 2006. It authorised the Second defendants to cut, fell and take away timber from Tabea, Dariai, Otenai (Ngoriki), Onefana, Lakwae Angariri, Subea Langi, Gwaungakafo/Fusai and Abarafi Langi Customary Lands in West Fataleka, in the Malaita Province. Lumabora land was not named in this Licence. It was also not clear whether this Licence was renewed when it expired on 18 August 2006. On 15 July 2003 Movin Kutai, Michael Iro, John Ben and Dr. George Manimu of Lumabora tribe signed an agreement with Sundown Lumber Company ("the Company") for the company to fell, harvest and extract timber for sale on Lumabora Land. On 24 June 2003, the company and Pacific Metro Limited ("the Third Defendants") signed a Technology Agreement which would expire on 30 June 2006. This agreement entitled the Third Defendants to fell, harvest and extract timber products from areas within Lumabora land for export. The Claimants assert that while the third defendants were carrying out logging on Lumabora land, they entered, felled and removed logs from Takibakwa Customary land for export without the consent of the Claimants. As a result of that alleged encroachment, the Claimants filed Civil Case No. 267 against the First, Second and Third Defendants for relief as enumerated in the claim which is pending before the court.
   
3. The starting point to consider the questions posed for determination in this application is the decision of the Arao House of Chiefs of 1 April 2008, on the boundary between Lumabora and Takibakwa Customary lands. The Claimants assert that such a decision had been made by the Chiefs. However, on the contrary, the defendants contend that no such decision had ever been made. I will now consider whether a decision had been made by the Arao House of Chiefs as asserted by the Claimants.
   
4. The Arao House of Chief was made up of Chiefs Charlie Bana, Lynold Liufai, James Naga and John Taefalu. The Secretary to this House of Chiefs is George Ofai. The dispute over the boundary between Lumabora and Takibakwa Customary Lands was set for hearing on the 11 February 2005. Notice of the hearing was served on the Claimants and the First Defendants. The First Defendants failed to appear on that date. The dispute was again set for 1 March 2005 for hearing and notices were served on the parties. The First Defendants again failed to appear. They provided no reasons for their absence. The case was then adjourned to 10 March 2005 for hearing. Notices were served on the parties. The hearing started, but due to the continuous interruptions from one Andrew Dauta, the hearing had to be adjourned for security reasons. The hearing was adjourned to 16 March 2005. On that date the parties were present but the Chiefs did not have a corum and the hearing had to be adjourned to 23 March 2005. The chiefs and the parties were present on 23 March 2005 but due to religious reasons, one of the defendants sought adjournment, which was granted. The hearing was adjourned to 29 March 2005, but by letter to the parties, the Secretary of the House of Chiefs informed the parties that the hearing was adjourned to 1 April 2005. In the morning of 1 April 2005, the parties and the Chief were present, but the Defendants objected to Chiefs James Naga and John Taefalu to sit as members of the Chiefs' corum. These two Chiefs agreed to rescue themselves. They then decided that two Chiefs from the Subea House of Chiefs be identified to replace them at the Arao House of Chiefs to continue with the hearing. The hearing was then closed at 11.48am. The chiefs reconvened without the parties at 12.15pm and decided that they would discontinue hearing the dispute due to the complexity of the case; the numerous adjournments; the frequent objections made by the First defendants and their degrading comments on the integrity and the knowledge of the Chiefs to hear the dispute. The Chiefs decided that their Secretary write a letter to the Second defendants about their decision to discontinue hearing the dispute. Further to that, the Chiefs have decided to fill in an unaccepted settlement form 1 to verify their decision. The Chiefs' sitting then closed at 1.20pm. On 11 April 2005, the Chiefs' Secretary wrote to the Claimants about the Chiefs decision to withdraw indefinitely from hearing the dispute as verified in the unaccepted settlement form 1, and suggested that the dispute be heard by another house of Chiefs. On 1 June 2005, the Secretary of Arao House of Chiefs advised the Defendants by letter that no decision was made on the dispute and that the Arao House of Chiefs had withdrawn from hearing the dispute. The Secretary then advised that if the First defendants wish to pursue the dispute they could do so by another House of Chiefs.
   
5. It is plain to the court that in view of the evidence set out in the preceding paragraphs, the hearing made by the Arao House of Chiefs regarding the dispute on the boundary between Takibakwa and Lumabora Customary Lands was incomplete. It is accordingly clear to this court that the Arao House of Chiefs have not made any decision on the boundary between Lumabora and Takibwa Customary Lands on 1 April 2005.
   
6. There is a copy of a purported appeal against a purported decision of the Arao House of Chiefs in the court file dated 24 August 2006. That copy has the names of the Claimants, but it was merely signed by one of them. That document shows that the appeal was filed at the Malaita Local Court Registry in Auki. Further, there is a copy of a purported unaccepted settlement Form 1 in the court file which was incomplete, unsigned, unfiled and unstamped. It is clearly defective as it does not contain all particulars required to be stated in such a form.
   
7. Further still, there is a copy of a purported appeal by the representatives of the Lumabora tribe to the Malaita Local Court dated 24 August 2006. It was not filed and stamped by that court. There is no evidence before this court of any appeal pending before the Local Court.
   
8. In conclusion, having regard to the matters alluded to in paragraph 5 to 7 above, the Arao House of Chiefs did not make any decision on the boundary between Lumabora and Takibakwa Customary Lands. There was no decision made in favour of the Claimants on 1 April 2005. There is no evidence to decide the questions posed for determination by this court. The court will accordingly dismiss this special case. Costs in the cause. Order accordingly.
   

THE COURT