Joshua v Valahoana Company Intergrated Development [2013] SBHC 113; HCSI-CC 121 of 2013 (15 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 121 of 2013.

BETWEEN:

KEVIN JOSUHA and LEEROY JOSHUA
Claimants
(Representing themselves and Joshua Lami's
family, of North Vangunu, Marovo Lagoon
Western Province).

AND:

VALAHOANA COMPANY INTERGRATED
DEVELOPMENT.
First Defendant

AND:

KACHERE INVESTMENT LIMITED
Second Defendant

AND:

JAYA BERJATA LIMITED
Third Defendant

AND:

ATTORNEY-GENERAL
(Representing the Commissioner of Forest)
Fourth Defendant.

Date of Hearing: 26th July, 2013.
Date of Ruling: 15th August, 2013.

Mr B. Etomea for the Claimants
Mr J. Keniapisia for the Defendants 1-3.

RULING ON APPLICATION TO SET ASIDE EX-PARTE ORDERS.

Faukona J: An ex-parte interim orders were perfected by me on 3rd May, 2013, grounded on a cause of action, claim in category A, filed on 12th April, 2013. On 13th June 2013, this application was filed to set aside the ex-parte orders; it was an amended application.

2. In this application, the Defendants sought eight orders. At the fore most is to set aside the ex-parte orders in its entirety or alternatively be varied. That the claim be struck out for reasons that the Claimants lack standing and for there being no evidence to proof ownership of bukulu and gahu customary lands; and there is an abuse of Court process because the issue of ownership falls outside of the High Court jurisdiction. The other orders sought are in terms of restraining and to allow hauling of already felled logs and of course costs.

3. Mr Etomea on behalf of the Claimants opposes the application to set aside and the rest of the relief sought. I consider rational, at this juncture, to refer to the original claim as it provide basis for granting the ex-parte orders. It was after the ex-parte orders were perfected that the amended claim was filed on 5th June, 2013 with no variation to the relief sought.

4. It appears from the amended statement of claim that the Claimants challenged the whole entire timber rights process. Consequently, as being aggrieved of the manner the process was conducted and the determination, appealed therefrom to the CLAC on 3rd June, 2009 capitalising on Section 10 of Forest Resources and Timber Utilisation Act. (FRTUA).

5. How strange and marvel to note that the relief sought in the amended claim were in terms of permanent injunction if they win in the CLAC. Congruently trespass and damages be assessed if they win the appeal. What I would able to glean is that the issue of trespass and damages have to be heard prior to the CLAC appeal. If the Claimants are awarded trespass and damages and lose the appeal in the CLAC what would happen to the assessment of damages; would the Court be coerced to perform its function, or is it not that CLAC is put on strict compliance to allow the appeal because the Claimants had won the trespass and damage claim. Perhaps the logical aspect to note is to allow CLAC the liberty to exercise its discretion in making its determination without being subjective to a former decision, which may seem as being forced to perform its functions.

LOCUS STANDI:

6. The test for Locus Standi is that the applicant must show that his interest must be peculiarly affected by the action of the defendant. In the case of Ombudsmen V Attorney-General[1] the Court stated;

"In matters which affect the public at large the party seeking to sue must show his own interest is peculiarly affected by the defendant's conduct. The Court will exercise its discretion widely but it will not exercise it in favour of the plaintiff whose claim is too direct or insubstantial".

7. In burdening that obligation the Claimant advance two streams of argument to support and maintain the ex-parte orders they have acquired. One is a claim that they have controlling power and authority to permit or prohibit activities within the two lands. Secondly, they show that they have interest by attending the timber right hearing on 7th May, 2003, and made objections. Further to that, as an aggrieved party, filed an appeal to the Western Customary land Appeal Court (WCLAC) on 3rd June, 2003.

8. The Claimants also make reference to restraining orders made in respect of patukae land, and also restraining orders against the first Defendant in 1999 concerning bukulu land which remains standing.

9. With those involvement and previous orders, the Claimants thought they have been qualified to be recognised as authority and power attributed to their rights of ownership of the lands. And by that can able to sustain interlocutory orders they sought. I have noted there is discrepancy in relation to the evidence of authority. On that occasion, there was no mention of bukulu or gahu land at all.

10. The problem with the restraining orders are that patukae land is different and there was a Chiefs decision on 7th October 1999, awarding rights of ownership to the Aleve brothers, Timothy and Naptalae. For the same reason there was no referral against that decision until 25th March, 2013, when Mr. Leeroy paid an appeal fee of $50-00 in the local Court Exh.L2, attached to Mr Leeroy's sworn statement filed on 22nd April 2013. Why take 13 years and 5 months before a referral case was filed. The period it took is suspicious, perhaps with a motive to reinforce this case and not for procedural expediency. I do not seem to accept that as a clean motive and at the same time patukae land is not subject to this litigation.

11. The second restraining orders were brought into light perhaps for the same motivated reason. Would a restraining order stood for 14 years? Common knowledge that such orders are interim in nature and supposed to be valid for interim period. It does not stand for lengthy period or through eternity. That questions the motive and the genuineness of the Claimants in instituting this cause of action. Are they real persons ... whose interest has been adversely affected by the conduct of the Defendants?

12. Furthermore, in the sworn statement of Mr Leeroy filed on 26th July, 2013, he deposed that he applies to the Court for his company Vula Timber Enterprise to export the logs felled from bukulu and gahu lands. What does that reflect? It shows Mr Leeroy is a person who does want logging and does not concern about trespass and damages and preservation of natural forest and environment. It boils down to the vey question of money and who gets money and benefit. In all aspect that questions the standing of the Claimants to come to Court and seek relief.

13. On the issue of appeal to CLAC, I noted there are some peculiar revelations. Firstly, the Claimants said they had filed an appeal to CLAC on 3rd June, 2003.

14. On 11th July, 2003, the Principal Magistrate (Western) wrote a letter to the Commissioner of Forest advising him that there was no appeal received in relation to determination of tinete, barana, kozonga, and sasana lavata lands.

15. On 19th February, 2004, on order of mandamus by this Court directing WCLAC to list the appeal for determination. One of the issues, perhaps the major one, was in regards to the appeal fee. His Lordship Brown J concluded that there is no basis at law shown to justify a claim for fee, sufficient disqualifies this applicant from his appeal. He further stated that the Act speaks of notice of appeal and was filed in time.

16. I am not obliged to be bound by that pronouncement. I can have my own view, as dissenting. Requirement for Appeal fee to be paid is common and acknowledged in this jurisdiction, as an acceptable practice in law. In the case of patatoa V talauai[2] the Court said.

"As the Local Courts (Fees in Civil Case) Rules required payment on appeal, meant that the appeal was not duly brought within three months period as the fee had not been paid".

No action outside the three months could cure the defect Seselono V Kikiolo[3].

17. The Local Courts (Fees in Civil Cases) Rules may be viewed by Brown J as not applicable to appeals under FRTUA. In my view, the practice has been so overwhelmed and the above Rules apply equally to appeals to CLAC under both Land and Titles Act, and FRTU Act.

18. Somewhat eight years later after the mandamus order, there was an appeal fee of $350.00 paid on 3rd December, 2012, for Valahoana land, at the Magistrates Officer in Gizo.

19. From my observations, the purported appeal prompted some speculation and one, which in my view cannot be relied on as a valid appeal. If for good reason, the appeal is not with speculation then the authority in Simbe V East Choiseul Area Counsel[4], be accorded a precedent

" ...the power of the High Court to grant relief by injunction is restricted in injunction aiding the exercise by a local or customary land appeal Court of its jurisdiction to decide such dispute. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary appeal Court specifically vested with power to decide it. Whether or not the Court would be prepared, pending the decision granting on interlocutory injunction to restraint entry and fell and removed timber depends on the circumstances, including in part; the Courts assessment of the plausibility of the plaintiff's claim to ownership of customary land and the prospect of succeeding in the local Court", or customary land appeal Court" (underline is mine).

20. Amidst circumstances outline, the truth is that the Claimants fail to produce in evidence a decision from any of the land Courts or the chief that they own the two lands. Their claim of ownership actually sits on thin air and is a mere assertion, which this Court cannot act upon.

21. Mr Keniapisia submits by referring to two case authorities. The first one is George Pou and Christian Salini V Tropical Forest Ltd and Others[5]. In that case, the Claimants satisfied the Court that they had standing to represent their tribe, because they produced evidence that they own the lands they were asserting ownership by producing a chief's determination giving ownership to George Pou and his tribe. Kabui J said.

"In my ruling delivered on 21st October 2004, I said that the Plaintiffs did have locus standi or standing in ordinary parlance on the basis of the Boli House of Chiefs determination made on 16th September, 2004, giving ownership of pugu/tananiviku land to Mr George Pou and his line"

22. In the second case of Veno V Jino[6] the Claimant fail in an application for interlocutory relief because they did not produce evidence of ownership over havahava customary land from either the chiefs or the local Court. His Lordship the Chief Justices remarked as follows,

"In so far the issue of standing to challenge the validity of the timber rights and license of Orion is concerned; therefore there is overwhelming evidence that the Plaintiffs lack standing to usurp that timber agreement and license. They were neither parties to the agreement and were never identified as being part of the persons lawfully entitled to grant timber rights over havahava land. Until their customary claims or rights over havahava land have been supported or endorsed by the local Court or customary land appeal Court, their Claims at this point of time must remain as most assertion insufficient to ground injunctory relief sought in this application. They may come back to court if armed with a decision in their favour".

23. Beside all that has been said, I have also assesse the plausibility of the Claimants claim to ownership of the land and the prospect whether they would succeed in the customary land appeal Court. The conclusion I would draw is that to secure a claim for trespass, which of course give rise to damages, a decision in support from the land courts or the chiefs is sufficient evidence to support the claim and to ground application for interlocutory relief. A mere claim of having authority, which people respect, and depending on previous restraining orders which concern different land and perhaps old in age to stand in time, do not assist the Claimants to come to Court. Even the appeal to CLAC, which supposed to provided better ground to sustain injunctive relief, found to be questionable and unhelpful. The appeal fee was paid nine years after the period of appeal elapsed. Such cannot measure up to the decisions in Patatoa and Seselono. In the circumstances, the correct conclusion to draw is that the Claimants have no locus standi to come to Court.

Triable issue:

24. As logging operation affected customary land in most cases, tribes or clans who are either aggrieved of the timber right process or who own adjacent lands and were affected, often challenge the entire processes, from the beginning to the issuant of a felling license. All these cannot be ignored as land to Solomon Islanders is a source of wealth and prestige. In this case, the Claimants alleged the Defendants had trespassed onto the two lands and felled 408 Logs.

25. Having being aggrieved by the Provincial Executive determination, the Claimants therefore filed appeal to the Western Customary land Appeal Court. Now they come to this Court to invoke its supervisory power to aid and make sure the Defendants are injuncted and royalty money preserved until the CLAC decides the ownership of the lands. To the Claimants the right of ownership of the two lands is the major issue.

26. However, I noted from the sworn statement of Mr J. Leve filed on 3rd May, 2013, that the concession lands under their license share common boundary with bukulu and gahu lands. The bokuboku ridge divides the concession area and the two lands. He further deposed that it is not easy to trespass because of the ridge is very difficult to get machines beyond it. It is steep and stony. Mr Alestair Aleve in his sworn statement filed on 3rd May, 2013 share the same sentiment.

27. Both sworn statements concertedly disputed they had trespassed onto the two lands and fell 408 logs. They are wholly concentrated on the concession lands under the license; and they are tevadai, patubai, valahoana (buburahi), terete, borama, konjongo and sasano lavata. Sworn statement of J Aleve further states that all logs exported in February were from blocks 2, 3, and 4. At the time of complain they were operated on blocks 10 (tinete) and 11 (borama).

28. It appears to me that logging operation had never entered the two lands being subject of this litigation. The lands are on kele side and logging is concentrated on kachere side. Between them is the rough and rocky ridge that divides them. The Defendants deny cutting 408 logs and deny making verbal agreement with the Claimants to pay royalties.

29. I have checked the license and the lands that comprise concession area under the license. It reflects exactly what Mr. J. Aleve deposed. There is no mention of bukulu and gahu lands, neither they been included.

30. If the claimants own those two lands then there are no disputes because logging activities had never encroached across the rough and rocky ridge. It therefore so obvious that ownership of the two lands had never been litigated. As such, there is no triable issue for the Court to entertain. If there should be any dispute, it would perhaps concerning actual location and boundaries of the two lands. Meantime it's not an issue for this Court as it has jurisdiction to entertain. This Court can only grant relief by way of injunction as aid to the exercise of customary Courts settling of land dispute.

31. Further, there is no independent evidence to verify allegation of trespass. There is no Chiefs survey report on Forest report on trespass as would normally be required.

32. Since there is no triable issue identified, the need to consider balance of convenience is irrelevant.

Additional restraining orders:

33. In the amended application to set aside ex-parte orders, Counsel for the Defendants also include interim restraining orders against the Claimants. Sworn statements of J. Aleve filed on 3rd March 2013, and 29th July, 2013 deposed that after the Claimants acquired the ex-parte orders they have been causing disturbances. They blocked the road making it difficult to haul logs cut within concession area; in particular blocks 15 and 16.

34. Also, noted is a police report attached to the second sworn statement. Attach to the report are three photographs taken of damages done to one of log trucks. From that evidence it is of necessity that such restraining orders be made.

Conclusion;

35. Having found that the Claimants do not have locus standi to come to Court and be heard, and having satisfied on the balance of probability that there is no triable or serious issue to litigate, the balance of convenience surely tips in favour of the Defendants. The Claimants have made undertaking for damages, an obligation self-realised.

36. The circumstances of this case have allowed me to strike out the amended claim and the ex-parte orders made on 3rd May, 2013 and grant restraining orders prayed for by the Defendants in their amended application to set aside.

Orders:

1. Ex-parte orders granted on 3rd May, 2013 are set aside.

2. Amended claim filed on 5/6/2013, be struck out for the reason that the Claimants do not have locus standi to bring this action and in doing so is an abuse of Court process.

3. The Claimants, their family relatives, agents, servants, employees and associates are restraint from interfering with logging operations by the Defendants in their concession area.

4. That the Defendants shall have unhindered access to haul for export logs cut from blocks 15 and 16 being stopped by Claimants and their agents.

5. Cost be paid to the Defendants

The Court.

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^[1] [1987] SILR 75.
^[2] [1983] SBHC 13; [1983] 19 LR 112 [2 May, 1983].
^[3] [1982] SILR 15.
^[4] [1999] SBCA; CA – CAC 8 of 1997 (9 February 1999).
^[5] [2004] HCSI, Civil Case NO 452 of 2004.
^[6] Civil Cae NO 152 of 2003.