Sakiri v Kalikongu Development Co. Ltd [2012] SBHC 42; HCSI-CC 51 of 2011 (22 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 51 of 2011

BETWEEN

JUDAH SAKIRI (Representing Trustees of
Kazakuru Right Hand Land)
Claimant

And

KALIKONGU DEVELOPMENT COMPANY Ltd
First Defendant

And

BULACAN INTERGRATED WOOD INDUSTRIES
(SI) Ltd
Second Defendant

Mr Pitakaka for the Claimant
Mr Kama for the First and Second Defendants

Date of Hearing: 17th April 2012
Date of Judgment: 18th May 2012

Ruling on application to strike out

1. In February 2011 the Claimant filed a Category "A" claim seeking a permanent injunction against the defendants, a declaration that timber licence A10214 was void, damages for trespass and conversion and an account. The Claimant says he is one of the persons determined to be able to grant timber rights over Kazakuru Right Hand Land commonly known as KRHL. The defendants do not dispute that. Much else is disputed though. The defendants deny the claimant speaks for all the "trustees" of KRHL. Indeed they introduce sworn statements from other trustees who are also members and Directors of the First Defendant. However, the main point in issue is the identity of the land covered by licence No. A10761[1] (for ease of reference called the claimant's licence) and that by licence No. A10214 [2] (the defendants' licence). Both sides in this dispute say an area of land is covered by their licence. We know from the recent Court of Appeal case [3] that cannot be so:-

"The Commissioner may only issue one felling licence per area of land covered by the licence"

So where is the overlap? What area of land are we talking about?

2. On the face of it, it seems to be agreed that it is Lio Zuzulongo land. What land is involved should be a simple issue to determine. Both licences carry the warning expressed to be a condition of each that, "The Licensee shall carry out his operations under the licence only within the area of the land to which the licence applies, the boundaries of which are marked in red on the map issued by the Department of Lands and Survey, or the good quality certified copy of such a map, of the scale 1:50,000 or larger attached to the licence" The emphasis is mine because, as I have said on several occasions, if the licence does not have a plan or map attached as is required by the condition then it is an incomplete document, a practically worthless piece of paper. Even so, in come the copies of licences attached as exhibits and as supposedly cast iron evidence of what each party is entitled to but with nary a sign of a map or plan attached. There are what purport to be plans and maps liberally scattered through the paperwork as exhibits but none of them are particularly legible, clear or coloured. They might be reproductions of a palm print from an Orang-utan, or possibly A Rorschach test, even possibly a map of somewhere on this Earth. In most cases it is impossible to say. It is almost as if the court is being invited to make a finding that everyone involved in the case suffers from Topographical agnosia. And yet the court is expected to make a reasoned decision.

3. Never mind about maps says the Claimant, the boundaries of KRHL, "have been judicially determined in various cases, [4]. That is not the case. In Sakiri and Others v. Golden Springs International (SI) Ltd and Others; High Court civil case 198 of 1997, earlier this year that was the preliminary issue which was argued. The conclusion I reached in that case was:-

"In short then the only determination that can be made at this stage and on the evidence before me is that the previous cases have not judicially and finally determined the boundary and ownership as between Koroga land and KRHL. Certainly in cases involving the division of Kazakuru land the boundaries of both the Left Hand and the Right Hand lands were agreed and/or judicially fixed. The Kusagi people were not involved in those cases. Certainly in Civil Appeal case No. 11 of 1974 there was a final judicial determination that the descendants of Lala and Jonga had the right to be the trustees in the event of a lease being completed over Koroga land as they were the line occupying Koroga land but it did not decide they were the owners. There may be a very fine line drawn between the two concepts, occupation and ownership, but nevertheless the line has been drawn. Certainly the Philips Commission made determinations as to what land the Kusagi people occupied and even the extent of the land, but the Kazakuru tribe were not involved in that process."

4. It must be said the land in Civil case 198 of 1997 is in all probability to the north of the land in the present case but the same comments apply. It is clear from Civil case 198 of 1997 there has been a reference to the Chiefs. This is acknowledged in the defendants' submissions[5]. No evidence was raised or argument made that the Chiefs' decision had been sent to the Local Court or whether it would conclusively resolve the dispute between the parties in this case. The upshot is the land cannot be identified with any certainty.

5. The whole of the defendants' case, including the issue of locus, seems to rely on the facts surrounding the grant of defendants licence, A10214. What the defendants basically say is that in 1993 there was a determination made by the Roviana Area Council. Mr Clement Base [6] says:-

"The Roviana Area Council ('the Council") determined that the boundary of Lio Zuzulongo land was the Piraka River to the west and Hura River to the east"

6. The first question to arise from that proposal is simply this. Were the area council entitled to make that determination? The short answer from the Court of Appeal is no. In paragraph 22 of the judgment already mentioned [7] the court said it was no part of the Western Customary Land Appeal Court's jurisdiction in considering an appeal from the Western Provincial Executive's determination to consider and determine issues of ownership and boundaries. Certainly the area council (and the Customary Land Appeal Court in any appeal) could have said we determine that; in respect of land within certain boundaries the proper people to grant timber rights are ..., but as is clear from the Court of Appeal judgment they were not entitled to determine what the boundaries of any named customary land actually were.

7. There is another issue. The Defence and Counterclaim filed 16th March 2011 argues the determination relied on followed an application for approval by Golden Springs International (SI) Ltd ("Golden Springs") to negotiate and acquire timber rights in Lio Zuzulongo Land. Following the determination and as there was no appeal a licence, TIM 2/35, was eventually issued to Golden Springs. No copy of the licence has been produced. Cameron J had the same problem in Civil Case 132 of 2010 (Kama and Others v. Delta Timber Ltd and Others) [8]. From the minutes of the Roviana Area Council timber rights hearing on 17th May 1993 it seems to be in respect of Tagosage Land and Lio zuzulongo Land. I do not know what evidence was produced in the matter before Cameron J but it appears to have been the licence to Golden Springs was renewed by the First Defendant in this case. That is what is said in submissions by the defendants. That is an extra ordinary suggestion to make, to say the licence could be renewed by the First Defendant when it was not issued or granted to them in the first place.

8. The judgment in the well-known Court of Appeal case of Gandly Simbe [9] set out in detail the process that was required to be followed before a felling licence was issued. In particular paragraph 3. In the latter case of Dalapakia [10] Goldsbrough J dealt with precisely the point raised in favour of the defendants in this case:

"Again during the course of the statutory procedure, those persons found to have the right to negotiate in those proceedings indicated that they were not prepared to negotiate with the applicant. That resulted in no agreement under section 8 and a recommendation under section 9 to the Commissioner to reject the application. There is no discretion provided to either body in those circumstances.

Now those persons identified in the statutory process have a different company with which they presently wish to do business. The essence of this claim is that they now no longer need to follow the statutory process but may instead circumvent it because of the earlier finding that they are the persons entitled to represent the customary owners. The Court is invited to order that the statutory process need not be followed by making a mandatory order that the relevant authority does not follow the scheme.

It is not a difficult conclusion to reach that this action cannot be sustained. It is not an arguable case. Whilst it is argued that an important principle is at stake this is clearly not the case. There is no criticism of the statutory scheme under Cap 40 as being less than fair or appropriate, just that these claimants do not consider that they should be bound to follow it. They prefer to be allowed to mix and match those parts that are favourable to them. It is not far from an abuse of process."

That decision, which has not been appealed, is good law and one with which I wholeheartedly concur. The reasons behind the decision are worthwhile setting out in full. His Lordship said:-

"The mandatory order sought, that the finding already made in the completed application that resulted in no agreement be transported into a new application made by another entity not previously involved in the first application and then made into a completed and successful application without a further hearing is misconceived. If made it would order a failure to follow a statutory procedure in circumstances where other matters in addition to the one matter that the claimants rely upon have not yet been determined. That cannot be correct, and is indicative of the fact that the claimants do not have an arguable case.

It also creates the risk that the claimants are encouraged to elevate this decision into something which it is not. In the context of an application for consent to negotiate timber rights, the claimants have been identified as the persons who, and represent all the persons who, are lawfully entitled to grant such rights. Whilst this is close to a declaration of customary ownership of land, it is not such and does not therefore give the claimants the right as against all people to ownership of the land. It is a right which they may claim as having previously been determined as against the same person or group of people in similar circumstances but not a right in rem to the land in question."

The circumstances are slightly different in the present case. There was a determination in 1993. A licence was issued subsequent to that determination and the conclusion of the other processes which followed it. The licence expired. There was, in the words of Goldsbrough J, a completed application. The dangers of what might happen as set out in Dalapakia are apparent here. The defendants want to elevate the determination into something which is tantamount to a finding about ownership.

9. If there were any doubts about the correctness of the decision in Dalapakia they are dispelled by the recent Choe Integrated Development Co Ltd Court of Appeal case earlier. In that case it was said:-

"As might be expected, there are often uncertainties in the statutory process as to who are, and/or who are entitled to represent, customary land owners in negotiations for the grant of timber rights and as to the location, extent and precise boundaries of the customary land the subject of negotiation. Curiously, original jurisdiction over those two vital matters is split between the Local Customary Land Appeal Court and the local Council of Chiefs.....Determination as to who are entitled to represent customary landowners is a matter for the CLAC, and identification of the location, extent and precise boundaries of the customary land the subject of the negotiation is for the local Council of Chiefs."

10. Of course, the defendants will point to the Chiefs decisions exhibited to the sworn statement of Willie Die Kama, there is one dated 22nd June 2005 and one dated 5th March 2007. The earliest in time involved the Claimant. It is in respect of land named as Lio Lavata. It is not easy to see how this land fits into the jigsaw that is this dispute. The Chiefs seem to say it is part of KRHL. It is not easy to reconcile what the Chiefs say with the 1998 judgment in Civil case 149 of 1997[11]. The 2007 Chiefs decision seems to split KRHL into two areas as well. Again, how is this reconciled with Muria CJ's ruling? Of course, Muria CJ's ruling was overturned on appeal but he was merely reciting what had been decided in previous cases. His reasoning on that finding was not found to be flawed by the Court of Appeal. In any event the Chiefs' decisions do not overcome the major problem for the defendants, their reliance entirely on the 1993 Area Council determination as authority for the issue of the licence. Added to that mix is Cameron J's ruling in Civil case 123 of 2010. The defendants say in submissions His Lordship's ruling supports the argument that their licence covers Lio Lavata land which is west of the Piraka River. There is no explanation of how the present position of the First Defendant reconciles with the finding at paragraph 10 of His Lordship's ruling;

"It follows the contention of the Second Claimant (the First Defendant in this case) that the First and Second Defendants ought to be restrained from logging Lio Lavata land because of the existence of the Second Claimant's licence fails".

Or the view expressed by Cameron J later at paragraph 22;

"This conclusion is reinforced by the fact that the 15 persons who were named as trustees subsequently acquiesced to their appointment by signing as grantors of timber rights a standard logging agreement with the third defendant over KRHL (which includes Lio Lavata land)."

The reference to the "third defendant" is inconsistent with the facts Cameron J was dealing with, it should have been a reference to the First Defendant. The Third Defendant in Civil case 132 of 2010 was the Attorney General (representing the Commissioner of Forests).The Commissioner would not be involved in signing a standard logging agreement. There is a copy of a standard logging agreement [12] signed by 15 trustees over KRHL and it is between the trustees and Delta Timber Ltd who were the First Defendants in 132 of 2010.

11. We are left in the somewhat confusing situation that the Claimant may have rulings from a customary law tribunal which are against him and from which he has probably not "appealed" to the Local Court and the defendants, particularly the First Defendant, rely on a licence which may, on the face of it, be defective. The First Defendant is also bound up in the decision from Cameron J in Civil case 132 of 2010. This is not a situation where the court should strike out the claim. As was rightly pointed out by the defendants the correct test to apply in these circumstances was set out by the Court of Appeal[13]. The court should not summarily dismiss a claim unless it can reach a definite and certain conclusion. For the reasons set out above there is no way it would be possible to come to a view of that degree of certainty in this case. There may be grounds for saying the Claimant's case is suspect, there may be grounds for saying the defendants' defence and counterclaim are suspect. Looking at all the evidence read in support of the application it could be said there is a stronger case for striking out the defence and counterclaim but no such application was made. Although the court could of its own volition make such an order, there are no certain grounds at this time to strike out any of the parties.

12. However, the application by the First and Second Defendants must be refused. The First and Second Defendants shall pay the costs of the Claimant, such costs to be assessed on a standard basis by the Registrar if not agreed.

Chetwynd J

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^[1] Licence Numbered A10761 issued to Delta Timber Company Ltd and effective for 5 years from 31^st August 2009
^[2] Licence Numbered A102214 issued to Kalikogu Development Co effective for 5 years from 26^th February 2010
^[3] Choe Integrated Development Co Ltd and Anor v. Maekera and Ors Civil Appeal Case CA 1 of 2011
^[4] See for example the sworn statement of Judah Sakiri filed 21^st February 2011.
^[5] See paragraph 15 of the submissions on behalf of the First and Second Defendants
^[6] See paragraph 7(a) of the sworn statement of Clement Base filed 2^nd March2011
^[7] Choe Intergrated Development Co Ltd referenced in paragraph 1 above
^[8] See paragraph 2 of the decision on an application for interim restraining orders dated 12^th May 2010
^[9] Gandly Simbe v. East Choiseul Area Council and Others [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999]
^[10] Dalapakia and Others v. Attorney General Civil Case No. 36 of 2010 (16 August 2010)
^[11] Paia v. Golden Springs International (SI) Ltd and Others
^[12] See Exhibit “JS3” annexed to the sworn statement of Judah Sakiri filed 26^th April 2011
^[13] Golden Springs International (SI) Ltd v. Paia [1999] SBCA 11; CA-CAC 19 of 1998