Koina v Attorney General [2012] SBHC 167; HCSI-CC 69 of 2011 (20 March 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 69 of 2011

BETWEEN:

DAVID KOINA AND OTHERS of Kadiki Tribe,
Vangunu, Western Province
Claimants

AND:

ATTORNEY GENERAL, represent Western
Customary Land Appeal Court
1st Defendants

AND:

EPHREM SIOPE AND OTHERS
2nd Defendants

Date of Hearing: 29 February 2012
Date of Ruling: 20 March 2012

JAK Legal Services for the Applicant
Attorney General for the 1^st Defendants
G K Suri for the 2^nd Defendants

RULING

1. This is an urgent application by the Claimants filed on 22 February 2012 for the following relief:

1. An interim injunction to restrain the defendants, their tribesmen, servants, employees, relatives, invitees and contractors (Earth Movers Solomons Ltd Logging Company) from carrying out any proposed logging operations, such as felling, harvesting, and extracting of trees within the disputed lands namely; Sasara, Babakani, Sivele and Buo or from within the greater Kadiki Kaleongo land or Kadiki Lavata land.

2. An interim injunction directing the defendants, and the other persons named in paragraph 1 above, from undertaking on the above mentioned lands other associated logging activities such as construction of logging roads, log camps, and other logging infrastructures.

3. An injunction restraining the defendants, and other persons named in paragraph 1 above, from obstructing and or in any way interfering with or intimidating the Claimants' rights to free and unhindered access through the above mentioned plots of land.

4. Other orders deem fit by the court.

5. An interim penalty order.

6. Costs in the cause

Date of Hearing: 29th February 2012

Date of Ruling: 20th March 2012

J Keniapisia for the Applicants/Claimants

R. Firigeni for the 1st Respondent/Defendant

G. Suri for the 2nd Respondents/Defendants

W Rano for Havea Majoria.

2. The Applicants are members of, and represent, the Kadiki tribe of Vangunu Island, Marovo, Western Province. In about November 2009, the 2nd Respondents applied for timber rights over the Babakani, Sivele, Kokoba and Buo lands ("concession areas") on Vangunu Island, Western Province. On 6th April 2010, the Western Provincial Executive ("WPE") conducted a timber rights hearing in respect of the application and made a determination that the 2nd Respondents were the persons lawfully entitled to grant timber rights over the concession areas. The Applicants were present at the hearing. They made objections at that hearing on behalf of their Kadiki tribe on the ground that the concession areas being applied for are part and parcel of the customary lands owned by their Kadiki tribe and that the said Kadiki tribe has not given any approval for the 2nd Respondents to carry out any logging operations on their customary. However, the WPE rejected their obligations.

3. On or about the 10^th May 2010, they lodged an appeal against the WPE determination with the Customary Land Appeal Court (western) ("WCLAC"). The grounds of appeal were that:

1. The Western Provincial Executive erred in determining that Ipa Siope, Oliva Jino, Yalu Revo, Seth Piruku, Brown Lamu, Andrew Lada, Exmas Jino, Ilai Kusolo, Hilly B. Jino, Solomon Lego, Habolo Kumiti, Boaz Nara, Perry Veno, Paul Kito, Eric Qora, Francis Sene, George Carter, Hami Lavi, Russel Peloko, Wuitlyn Viulu, Zutu, Robert Purugu and Harold Viulu are the persons, and represent all the persons, lawfully entitled to grant timber rights over the Sasara, Babakani, Sivele, Kokoba and Buo Customary Land areas. The persons lawfully entitled to grant and who represent all the persons lawfully entitled to grant timber rights over those areas are Havea Majoria, Chief Tui Kavusu, Leslie Tusi, David Koina, Nixon Jino and Hubert Sesapa.

2. The Western Provincial Executive erred in determining that the said lands are held by Babakani, Sivele, Kokoba and Buo landholding groups in existence.

4. The WCLAC heard the appeal on 30th November 2010 at Gizo, Western Province. At the hearing, Mr. Majoria on behalf of the Applicants, produced sworn statements in which members of the Applicants' tribe deposed to the fact the concession areas being applied for are part and parcel of the Rodo land and Kadiki Kaleongo land owned by their Kadiki tribe. In those same sworn statements, their members deposed to the boundaries of Rodo land in which Sasara land is located as well as the boundaries of Kadiki Kaleongo in which the Babakani, Sivele, Kokoba and Buo are situated.

5. After the hearing, the WCLAC made a decision on that same date of 30 November 2010 rejecting the Applicants' appeal. In that decision, the WCLAC rejected the Applicants' appeal on the ground that the question of ownership of the land "should be referred to the appropriate panel either the Chiefs or the local court", meaning that the WCLAC had no jurisdiction to determine issues of ownership of customary lands.

6. The Applicants have now filed this case in this court for judicial review of the decision of the WCLAC on 1st March 2011. It is yet to be heard. They seek the following orders:

[1] An order to quash the decision of the WCLAC made on 30th November 2010 in relation to an appeal by the Claimants in CLAC Appeal No. 4 of 2010.

[2] An order that the WCLAC re-determine CLAC No. 4 of 2010 and decide the issue of ownership of the concession areas based on the evidence before it.

[3] An order that the WCLAC and 2nd Defendants pay the costs of the Claimants.

[4] Such further or other orders as the courts deems fit.

7. The substantive issue of timber rights determination been challenged in court for judicial review is yet to be decided. Logging is yet to be carried out on the said customary lands. In that case, any harm to the 2nd Defendants would be minimal. On the other hand, if logging proceeds but the applicants should ultimately win their case, they would clearly suffer prejudice because the trees would have gone and the environment in the forest destroyed. The Applicants have filed undertaking to pay damages on 22 February 2012. There is delay in the hearing of the judicial review in this case, but the Applicants were not entirely responsible for such delay.

8. In the circumstance, the court will grant the relief sought in paragraphs 1, 2, 3 and 6 of this application.

THE COURT