Bako v Gedi [2012] SBHC 90; HCSI-CC 366 of 2011 (16 August 2012)

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JAMES BAKO, BEN GNAGO and JAPHET MUNAI
(as representatives of the Thogokama Tribe).
Claimants

LEPPING GEDI, GORRENCE ROZO, ABEDNIGO
KAHE, CHARLES DAFE and MARSDEN MAIRI
(as representatives of the group that purportedly claiming
to own the Bagaho customary land).
First Defendants

1.	Faukona J: An application for injunctive orders was filed on 18th June, 2012. The Application applies for the following orders:

	(1)		An interlocutory injunction retraining the first and second Defendants themselves or their servants or agents, from entering onto the Bagaho customary land as demarcated in paragraph 2 of the statement of case in the claim for the purposes of felling any trees of economic value or removing any trees therein until further order;

	(2)		An order that all the trees already fell from the said land be sold and the proceeds thereof be paid into an account in the names of the parties until further orders; granted.


	(3)		A penal notice be attached to any interlocutory orders granted.

2.	The Claimants (as representatives of the Thogokama tribe in Katova District, Isabel Province, are claiming ownership of Bagaho customary land as pleaded in the amended claim filed on 18th June, 2012.

3.	The first Defendants are representatives of the Rogisi clan also claiming ownership of Bagaho customary land. The first and second Defendants are now carrying on logging on the disputed Bagaho land under a logging licence no. Tim 2/32 issued on 29th October 1991 to Isabel Timber Co. Ltd.


4.	The above logging licence authorized the felling of timbers from Kia/Katova etc, and was exhibited as "JG – 3" in the additional sworn statement of John Gedi filed on 21st October, 2011.

5.	The sole reason for invoking the power of this Court is purposely to restraint the first and second Defendants, their servants or agents from carrying out logging activities within Bagaho customary which is currently under dispute.

6.	Noted the licence issued was more than ten years ago under the old Forest and Resources Timber utilization Act. Such Act operate to safe guard customary land owners of those lands from interference and malice exploitation from others including foreigners to enter any customary land and carry out logging activities. Section 29 of the old Ordinance states that the licence does not and convey any right to enter non-government land areas to cut and fell or take away timber or construct roads or other works in or on these areas without timber rights agreements with their owners. That requirement remains to the present day.

	The Claimants' case.

7.	Mr D. Hou for the applicant grounded a number of reasons supporting the application. He says that the licence No. 2/32 is only a bare licence and does not give any legal rights to the Defendants to enter the disputed Bagaho customary land. He refers to the foot note of the physical licence Tim 2/32 with the inscription, "Disputed areas or lands not covered under this logging licence." Mr Hou then refers to the case of Qurusu V Attorney-General[1] where His Lordship Palmer J said that in respect to customary land, the true purpose of a license is that it must be coupled with a grant of timber rights and that if no timber rights are obtained then no licence should be issued. If such licence is issued it is merely a bare licence. The same sentiment was echoed in the case of Micha V Thao[2].

8.	This boils down to the fact that without any timber rights and noncompliance with the procedure under the Act, no person has any right and authority to enter any customary land.

9.	To prove irregularity of the timber rights process Mr Hou identifies major omissions in Form 1, 2 and IV. In Form 1 answer to question 5 related to areas within which applicant wishes to carry out logging (Kia/Katova) was not supported by maps showing areas involved. Similar answer to question 6 failed to identify names of specific customary lands own by land owning group which preliminary discussions had been held with. Four landholding groups identified who preliminary discussions have been held were never link to individuals as indicated with the use of maps. This explains the situation why other people who owned land within Kia/Katova as Rogisi clan whom no preliminary discussions were made. Due to ambiguity other people did not attend the timber rights hearing acting under the impression that nothing had affected their land. Because of that as well, there is a footnote on the licence which said, disputed areas or lands are not covered under this logging licence.

10.	The same problem encountered was repeated in Form 2 contended by Mr Hou. Form 2 failed to name portions of land with demarcated boundaries of individual land owned by each group.

11.	The Form IV agreement signed on 2nd July, 2012 shows landowners who signed were not linked to individual customary lands found by the Area Council. That rendered it impossible to determine who actually own the land whenever there is dispute.

12.	The names of landowners shown in original Form IV agreement signed on 2nd August 1991, show case of signatories who had granted timber rights but did not link them to their individual lands.

	The Defendants' case.

13.	Against the issue of bare licence Mr Tigulu submits that the Claimants have no locus standing, they are not grantors of timber rights over Bagoho land or LR 697 Lot 3. The only potential option left for the Claimants is to institute a chiefs hearing. That can't be now because the recent chiefs hearing concluded by determining in favour of the Defendants.

14.	Further that the timber rights had been concluded in 1993 in which the Kia/Katova Area Council determined the first Defendant's Rogisi clan as rightful persons lawfully able to grant timber rights. The Claimants cannot say they were not aware of such. One of the current Claimants was a part of the Area Council making the decision. The doctrine of laches applies to the Claimants for sleeping over their rights, or fails to act within reasonable time.

15.	In this case the Claimants are challenging the Commissioner of Forest's power to approve the licence and agreement. The Commissioner of Forest had not been made a party to this action. Further to that Mr Tigulu submits that members of the Claimant tribe have been requesting and receiving money from the second Defendants since 2008 to date. Bare Licence.

16.	In relation to the issue of bare licence it is apparent from the authority that it is an alternative to non-compliance with the relevant provisions of the Act. Firstly, there can be no logging licence issued on the outset should the process in the Act was not complied with. In the event a licence was issued, despite the non-compliance licence carry's the tag of bare licence.

17.	The question to pose is why a licence is issued if the procedures are not complied with. Is it not the responsibility of the Commissioner of Forest to critically assess if there was any irregularity in the processes or whether the whole process was determined on the basis that there was no appeal lodged? It would be nonsensical to issue a licence whilst acknowledging that the procedures were not complied with; expecting it will carry with it a label of mere bare licence. What purpose does that served? In my view it is highly probable that such promotes prospect of dispute other than an activity founded on proper base of law.

18.	Even some senior officers in the Forestry Department use the word, "bare licence," common as I would pre suppose. One of such was a letter written by Jim Konai on 11th November, 2010. How much do they know of the words, their true meanings and the effects? In my view, to avoid any such ambiguity the Commissioner must ensure the relevant provisions of the Act are fully complied with. Issuing a licence knowing that it is a bear licence totally undermines the intent the Act exist to serve and promotes mockery of the rule of law.

19.	I have checked the materials Form 1, 2, which Mr Hou alleges to be irregular. I find there are absolute truths in them. Having identified persons lawfully able to grant timber rights that have to be linked to a particular land with well define boundaries. In fact from material, there was no map at all. All the Area Council did was identifying persons lawfully have rights to grant timber rights within Kia/Katova Area Council. How many different customary lands within the area and who are able to grant timber rights, is any body's guess.

20.	Follow up from Form 1 and 2, is Form 4. In this case it appears that those who were lawfully able to grant timber rights and had been identified in Form 2 are eligible to sign the logging agreement in Form 4. As per se, it appears to be proper and there was a link; but there was no identification of a particular customary land which each grantor has right to grant timber rights. In the absence of such it makes it impossible to identify an area of dispute and who the parties should be.

21.	In another agreement signed on 27th January, 2011, those who signed were not linked with form 1 and 2 and previous agreement. If there is change there should be explanation and where necessary documents to show.

22.	Amidst that, is this the right moment to deal with an issue that had occurred about twenty years ago? In my view it's more than late. Appeal privilege had not been capitalized on by any aggrieved party. I have noted that one of the Claimants was a member of the Area Council that determined the application. Expectedly he should be conscious and questioned the process if his Clan truly own a piece of land with the Kia/Katova area. To deny having knowledge because of the irregularities, making it impossible to identify a particular land under dispute is not good enough. Any development normally prompt responses and people having interest have the rights to question, made enquires and investigations as to what actually was occurring and not to sit back and reacted only when the process is at its final stage. At times it would not be possible to do much then. Whether it be boundary or person lawfully entitled to grant timber rights, which were not specifically mention; and in the event a dispute arises, makes the licence definitely not covering Bagaho customary land.

	Standing:

23.	In Solomon Islands claim of ownership to Customary land is an assertion until the Court proves so. In this case the Claimants said they have been in actual constructive occupation of the Bagaho customary land from time immemorial until the events unfolded. In 1919 part of Bagaho land was sold to the Resident Commissioner by their grandfather Walter Notere. The late Mr Walter Notere is the father of James Bako (Jnr). Beside Bagaho land they also own two islands lying on the coastal side of Bagaho land namely, Kabokana and Moloforu which were recognised by the Resident Commissioner.

24.	The assertion of Customary ownership of land is common. In this case the Claimants move further step to claim they have been in actual constructive occupation until now. It shows there interest in the dispute is affected and in particular where the logging operation still continues. In my view the Claimants in this case has locus standi. Further to that the dispute heard by Kia house of chief's name the Claimant as a party. Therefore it is apparent that they have genuine issue on the land in question. See Kongungaloso Co. Ltd V A-G[3]

	Triable issue:

25.	Is there any triable issue in this case? Conceivably this application is brought about to restraint the Defendants from continue logging on Bagaho customary land. As almost certain the ownership of Bagaho customary lands is currently in issue, and forms the basis of this application. To assist in determining if there is a triable issue, it is to be noted that there is a footnote on the licence Tim 2/32 on page 7, which says, "Disputed areas or lands are not covered under this logging licence".

26.	Two meaning can possibly be extracted from the phrase. One, any existent dispute in relation to any customary land within Kia/Katova area at that time was not covered by the licence. Similarly, any future dispute that may have arose in respect of any customary land within Kia/Katova area will not be covered by the logging licence as well, so long as the licence is still valid.

27.	There is evidence that dispute concerning Bagaho customary land started when the logging company entered the land to fell and extract logs and trees for export. The dispute materialises by way of a letter instituting a case before the Hograno house of chiefs. The Court of Appeal accepted that the letter addressed to Chiefs was an appropriate method of initiating a reference. Whilst awaiting a determination from Hograno House of Chiefs, Katova House of Chiefs heard the dispute on 18th July, 2012 and determine the Rogisi clan (belong to the first Defendants) as the primary landowner of Bagaho customary land and one named Clement Felo as the secondary owner.

28.	The legal process through which customary land ownership is litigated commence from the chiefs hearing. Once that has been done the Local Court is open for an aggrieved party to refer the case to it. In this case the current dispute in regards to Bagaho customary land is both pending Hograno house of chiefs and also Isabel Local Court. In deed the issue of customary ownership of Bagaho land is pending to be tried by the Isabel Local Court.

	Adequacy of damages:

29.	The issue of adequate remedy for damages has always been a consideration when considering an application for injunction. The award of damages is to put the injured party as nearly as possible in the same position as he would have been before sustaining the wrong. It follows that a party cannot be awarded damages without having suffered a wrong which is recognized and enforceable in law. This requires some form of assessment of damages available to either party, depending on who succeeds at trial.

30.	The question to ask is, will the Claimants suffer irreparable harm if the injunction is not granted? Or will the Defendants suffer loss if the logging operation ceased. The Courts in this country has similar approach and have consistently accepted that logging causes irreparable harm which damages are not adequately remedied.[4] If damages will be an adequate remedy for the Claimants then there is no ground for interference with the Defendant's freedom.

31.	On the other hand the Defendants argue that they have been involved in logging for some time now. They had expended large amount of money in their operation which the Claimants will not able to compensate. The second Defendant provides employment, benefits to Bagaho community, Isabel Province and Solomon Islands Government. Any injunction will affect revenue and benefits of the second Defendant. There is no cause to question the affordability of the Defendants to meet the damages as remedy to the Claimants. But, would that be able to meet damages to environment, landscape and trees which cannot be measured; and takes time to be allowed to grow naturally. I noted that second Defendant have taken steps to obtain development consent from the Director of Environment and Conservation of which a report was filed (Ext. JV 1) attached to sworn statement of Johnson Vunagi filed on 20th July, 2012.

32.	It is with no doubt that should an injunction is granted the Defendants will incur loss; loss of employment, income and revenue. However, with six shipments that is a vast volume of logs and perhaps more to come. I think in my view, it is ideal that the issue of landownership has to be determined as a priority once and for all, to avoid future conflict, and must take precedent above all other issues.

33.	Mr Tigulu points out that the Claimants are receiving monies from logging operation; as such is an appropriate remedy for them in terms of damages. No reason is disclosed why the Claimants are receiving monies from the logging operation. From the materials it indicated that some of those monies were advanced. This is unusual; only the tribesmen of the grantors are eligible to advance monies which will be deducted from royalties due. Transacting monies in this manner promote suspicion. Drawing inference from that it would implicate possible bribery so that Claimants would not pursue their claim and shut out, allowing the logging operation to continue.

34.	Mr Tigulu further submits that the Claimants failed to establish their rights of ownership of Bagaho customary land to dislodge the timber rights held by the first defendants. The Claimants case here premise on non-compliance with the process provided by the Act, hence the licence issued was merely a bare licence. I have said much about the process in the earlier part of this ruling. Suffice to say, the licence issued was under doubtful condition. But that is not the only reason for this ruling. The epitome of my reasoning premise on the fact is the injunction necessary to halt the logging operation in the interim, whilst the issue of landownership is considered by the relevant authority and Courts. All other considerations are facts that will assist the Court to decide the way out.

35.	With those and having balancing the facts, I decided that damages cannot adequately remedy the claimants, and therefore balance of convenience tilt towards them.

	Undertaking in damages:

36.	The usual practice is to require a cross undertaking in damages as a condition to grant interim relief. In this case the Claimants have not made any undertaking. In the case of Kalena Timber Company Limited V Labere[5], the Court of Appeal state that, "...his reason for not requiring an undertaking was due to his opinion that not to restrain the defendant was going to have a very serious effect not only on the profits of the Plaintiffs but on the "disappearance of the trees still standing and future damages to the land and the rivers in the area of land"". However, the appropriateness of requiring an undertaking as to damages may vary depends upon the nature of proceedings and may be less appropriate in environment cases[6]. The failure to provide an undertaking make it such an exception where the inability to provide adequate undertaking would affectively precluded the claimant from the opportunity of having rights determined in full in a trial so that the poverty would be a direct cause of an injustice in the plaintiff would be kept from proving those rights[7]

37.	In Richardson v Forestry Commissioner and Another[8], Masa J in granting injunction said, "... a case such as the present it is enough for the plaintiff to show that irreparable injury is a possibility in the sense stated."

38.	In this case the Claimants are simple rural dwellers who survive by subsistence farming. Only one of them is a teacher who earns a regular fortnightly salary. In that instance circumstance permits that this is an appropriate case where an undertaking in damages should not be required.

	Other considerations:

39.	The boundaries of Bagaho customary claim by the Claimant and first defendants show different areas and boundaries. The first and second Defendant's claim covers a large area whilst the Claimants a small portion within Bagaho land. Whatever description of the claim the parties have, the fact remain that Bagaho land ownership is in issue together with the boundaries. The proper avenue to settle the dispute is before the chiefs and then Isabel Local Court.

40.	The issue of delay has been dealt with earlier. I find there is delay by the Claimants who have been sitting on their rights not to lodge an appeal against the determination of the Area Council. However, the length of delay is not a consequence to deter grant of injunction. The sole reason as I find is that the Area Council had not complied with the process provided in the Act. It was not done properly. Despite that a felling licence was issued with a tag "bare licence". This could have been founded on the case of Gurusu v AG[9] upon which the Commissioner of Forest is entitled to grant a licence carrying the tag. In my view such should be discouraged. The law should apply with uniformity. It should not be granted at all.

41.	That alone does not form the basis of this ruling. The significant consideration is the tribal ownership of land which is pending the rightful forum; at the same time as it is profoundly stated that any land dispute within Kia/ Katova area should be excluded from the licence. As such the logging activity be halted so that landownership issue be resolved.

42.	Mr Tigulu submits that appropriateness of an injunction is futile. The land has been logged and very such of secondary forest which do not have trees of commercial value or risk of any environmental conditions. Whether that is true or not, that fact remain the same that the logging was operated in a disputed customary land and that has to be resolved once and for all by the appropriate authority.

43.	In conclusion it is apparent that the Defendants would not suffer any damages at all as a consequence of grant of injunction. They have enjoyed the harvest of six shipments and that should be sufficient remedy. And those damages would not be an adequate remedy for destruction of land and trees by the Defendants. Having considered the evidence surrounding this application I therefore grant the relief sought.


	Orders:

	1.	That the first and second Defendants whether by themselves or their servants or agents are restrain from entering onto Bagaho customary land as demarcated in paragraph 2 of the statement of case in the claim filed for the purposes of felling any trees of economic value or removing any tress therein until further order.

	2.	That all the trees already fell from the said land is sold and the proceeds thereof be paid into an account in the names of the parties until further order.

	3.	A penal notice is attached to the orders herein.

	4.	Costs of this application is borne by the Defendants payable to the Claimants to be taxed if not agreed.

	The Court.

High Court of Solomon Islands

Bako v Gedi [2012] SBHC 90; HCSI-CC 366 of 2011 (16 August 2012)