Kilua v Sino Capital (SI) Ltd [2012] SBHC 63; HCSI-CC 105 of 2009 (17 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 105 of 2009

BETWEEN

JOB KILUA
(Representing the Ghaobata Tribe)
Claimant

And

SINO CAPITAL (SI) Ltd
First Defendant

And

RAY THONGO, PASTOR VANGA and
HARLEN DONALD
(Representing Ghagabhu Customary Land)
Second Defendants

And

BENTLEY BALUA, ROBERT MANLONGA and
CIRIN BALUA
(Trustees of Masa Customary Land)
Third Defendants

Mr Fakirii for the Claimant
Mr Lidimani for the Defendants

Date of Hearing: 25th June 2012

Date of Judgment: 17th July 2012

Judgment

1. The question the court is asked is; is the Claimant entitled to royalties paid by the First Defendant? The Further Re-Amended Claim filed 2nd June 2011 specifically asks for a declaration that the Claimant has an equitable interest in the royalties from logging operations in Masa and Ghaghabu lands. In submissions the Claimant asks the question only in relation to Masa land. It is not entirely clear whether the Claimant is going to totally withdraw his claim in respect of Ghaghabu land in these proceedings.

2. The Claimant is not challenging the licence granted to the First Defendant, nor is he challenging the determination which led to the Second and Third Defendants entering into timber rights agreements with the logging company. It is noted he says in evidence that had he known about the hearing which led to the determination he would have raised objections. Put into simple language, the issue is the Claimant wants a share of the royalties but the Second and Third Defendants do not agree he is entitled to anything.

3. As, for the purposes of the present application, we are dealing only with Masa land the main defendants are the Third Defendants. Obviously any royalties must have come from the First Defendant but they are not directly involved in the decision as to who should share the money.

4. There was a hearing involving Masa land in the Local Court. That was in 1985. The Defendant in the case was Thughaoli, the Plaintiff Job Kilua (the Claimant in this case). Thughaoli appealed to the Customary Land Appeal Court. The appeal was heard in July 1986. The essential page of the CLAC judgment is missing from the court book. However, full copies can be found attached to several sworn statements. What the CLAC said was:

"That the Tideo Tabu Tribe is the rightful owner of the land known as Masa Land being land under dispute in this case as the evidence in this case relied on by the Respondent was on the Tideo Tabu Tribe."

Earlier the CLAC had made some crucial findings. Unfortunately in all the copies I have seen of the CLAC judgment some words are indistinct and so it is impossible to be sure exactly what the CLAC said. However, enough of the wording is legible to understand what was intended. The CLAC found:

"On the evidence before us in this court we are satisfied that the respondent is of the Paradovu tribe and that the Paradovu tribe and the Tideo Tabu tribe are one if they are uncles because in custom (indistinct) are uncles then they are one.

Later the CLAC says:

"We allow this point of appeal in that we are satisfied that the Respondent represent his tribe the Paradovu/Tideo Tabu Tribe and not of himself."

5. It seems clear to me that what the CLAC was saying was that objections to Job Kilua presenting the case were not well founded. He was of the Paradovu tribe and that tribe and the Tideo Tabu were one. He was able to appear as a spokesperson and tell the CLAC about the genealogy of the landowners because of the relationship between both tribes. However, the land did not belong to him personally but to the Tideo Tabu tribe. What is a puzzle to me though is the distinction the CLAC make between the two tribes when dealing with ownership of the land. It is quite noticeable in their final judgment quoted above when they say Tideo Tabu Tribe is the rightful owner and not Paradovu/Tideo Tabu Tribe. Whilst it is a puzzle to me it may make perfect sense in custom. That is the main difficulty the Claimant has to overcome in this case, namely whilst it may make sense in custom it is not for this court to say that it does.

6. It is quite possible that if the Claimant has a right in custom attaching to the land then he more than likely has some claim to part of the Royalties. Much would depend on what the rights in custom entail. Of course, it is also possible the Claimant has no rights attaching to Masa land even though Tideo Tabu and Paradovu Tribes "are one". Yet another possibility is he has rights attaching to the land but they are of such a nature in custom that they do not mean he has a right to benefit from logging on the land.

7. These are questions of custom for the custom courts and tribunals. These are not matters which should be decided on by this court without firm and uncontested evidence of custom. The Claimant argues he has a decision of the Chiefs to back up his claim. When the accepted settlement form, which is his evidence of the Chiefs' decision, is examined it is nothing of the sort. First, with only one side appearing it cannot by any stretch of the imagination be said to be an accepted settlement. Secondly the Chiefs appeared to make a decision about the ownership of Masa Land not whether the Claimant is entitled to anything from the proceeds of logging. Any decision about ownership which contradicts the decision in 1986 by the CLAC is valueless. The Chiefs are not able to make a decision which is in any way at odds with what the CLAC said in 1986 about the ownership of Masa land especially if they were considering the Claimant's "rights" of ownership as against the Tideo Tabu tribe. That would be rather like a Magistrates Court saying the Court of Appeal had got one of their judgments wrong and it was going to substitute one of its own.

8. It is for the Claimant to prove his case on the balance of probabilities. He has not come anywhere close to discharging that burden of proof. He has established, without a shadow of doubt, that he has been a spokesman for the Tideo Tabu tribe in the past. He has established he is a member of the Paradovu tribe. The CLAC has said the two tribes are one but they have also said only the Tideo tabu tribe are the owners of Masa land. What he has not established is whether those facts, according to custom, give rise to any "beneficial interest" in the proceeds from logging on Masa land.

9. Of course there is a problem in trying to fix a right recognised in custom with a label from the law of equity. What are required, in practical terms, are answers to staged questions. First, does the Claimant have any rights in Masa land? If he does have a right or rights over Masa land, does it or do they mean he can share in the payments made for timber taken from Masa Land. This is reducing the meaning of beneficial interest to basics, namely does the Claimant have a right to benefit from the sale of timber on the land.

10. Without any "beneficial interest" recognised in custom the Claimant has no right to any declaration from this court saying he has one in law. The Claimant was not named in the determination by the Guadalcanal Provincial Executive following the timber rights hearing pursuant to section 8 of the Forest Resources and Timber Utilisation Act. He did not appeal against the determination and so he did not obtain a legal right to a share of the proceeds following that route. He can only succeed if he can establish a reason in custom why he should have a share of the proceeds. He has produced no evidence he is entitled, in custom, to share the royalties from logging. In the circumstances and at this particular time the court must answer the question asked of it in the negative.

11. If the Claimant wishes to pursue this matter then he must obtain evidence. As indicated above, that can only be in the form of a decision from a custom tribunal. Either this court can adjourn pending a referral by it to the Local Court or the Claimant can ask for the case to be adjourned whilst he goes to the Chiefs and then, if necessary, to the Local Court and thence to the CLAC. It is a matter for the Claimant. In either case these proceedings will have to be adjourned. I will leave it to the parties to agree directions to that effect. If no agreement is possible then they should approach the Registrar of the High Court for a further hearing when the court will give directions. The costs of the application are reserved.

Chetwynd J