Maneniaru v Attorney General [2013] SBHC 118; HCSI-CC 14 of 2013 (22 August 2013)

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

Civil Case No.14 of 2013.

BETWEEN:

HONOURABLE JOHN MANENIARU, MP
Claimant
(Representing himself and his inamauriasi clan
of West Are'are, Malaita Province).

AND:

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

AND:

ATTORNEY-GENERAL
Second Defendant
(Representing the Malaita Provincial government
Assembly Executive).

AND:

ATTORNEY-GENERAL
Third Defendant
(Representing Minister of Forestry).

AND:

GREEN TREE TIMBER LIMITED
Fourth Defendant

AND JACOB HOITARA
Fifth Defendant
(Representing the timber rights trustees of Hauroa, Herairua, Heraniatai and Tawarao
Customary lands).

Dates of Hearing: 17/7, 31/7 and 1/8/13
Date of Decision: 22nd August, 2013

Mr. M.Pitakaka for the Claimant.
Mr. D. Lidimani for 4th and 5th Defendants .

DECISION ON APPLICATON FOR CONTEMPT.

Faukona J: This application is for an order for contempt of Court. It was filed on 12th March 2013, following the ex-parte orders granted on 31st January, 2013. The relief sought by the Claimants is to punish the General Manager and Directors of 4th and 5th Defendants for failure to comply with High Court Orders. One of the orders is Order 3, that the Sheriff of the High Court be authorized to sell the logs cut and removed from the disputed areas and deposit the proceeds in a joint trust account pending final determination.

2. The Claimant's main cause of action is basically for judicial review pursuant to Rule 15.3 in respect of decisions, determinations or actions of the Commissioner of Forest, the Malaita Provincial Executive and the Minister of Forest.

3. There are a number of reliefs sought in terms of quashing orders, declaratory orders, mandatory orders and permanent injunctions.

4. An account of all proceeds of sale of logs within the concession area under the felling license A101108.

5. Premise on that cause of action that the ex-parte orders were obtained on 31st January, 2013; followed by further variation orders on 4th March, 2013.

6. An application for Court Contempt is provided for under Rules 23.7 to 23.13. Any person alleged to have deliberately or repeatedly fails to comply with an order of Court, by Rule 23.12 (b) is allowed to make an explanation. The Defendants have come to Court with that explanation of their position supported by a number of sworn statements and exhibits attached.

7. It is a settled law in this jurisdiction so far as standard of proof in a civil contempt is concerned. In Tubara V James[1] where Kabui J (as he was ) stated at page 2, which he quoted from the case of Comet V Hawkex,

"A civil contempt is different. A typical case is disobedience to an order made by the Court in a civil action. Although, this is a civil contempt, it takes of the nature of a criminal charge. The Defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. In re Bramblevale Ltd (1970) 1 Ch. 128, 137, said that it must be proved with the same degree of satisfaction as in criminal charge. This passage by Lord Denning covers all the elements in a criminal charge"

8. The same view was adopted in Russel Islands Plantation Ltd V Kangovai[2], where Brown J said,

"The White Book speaks thus about O.52 r.l (in similar terms to our High Court Rules O.62 Division 3 as it was then at 52/1/3). It is an essential prerequisite to a finding of contempt that the factual basis shall be proved beyond all reasonable doubt and that there shall have been mens rea on the apart of the alleged contemnor (Re Supply of Ready Mix Concrete (1991) 3 W.L.R 708 C.A).

9. In support and proof of contempt, sworn statement of Peter Himarau filed on 4th March, 2013, states that as of 4th February 2013, the logging operation continued in customary lands within inamauriasi as hauroa, poronamae, uruhairamo (ruruone), siunamere, tatareho, hunanahu, kaonire (puriasi) and moisiro which are not identified within the concession area. To further verify this, sworn statement of the Claimant of 25th January 2013 affirm at paragraph 5 the boundaries of the land he claims as from Haruta river in the east to Oisia river in the west see Exh JM 1, the same boundaries he attested in Uhu Local Court case in 2004. In between the two rivers is the land he claims as inamauriasi. As he says, the three lands which are in the concession area are inland; they are herairua, heraniatai, and tamerao. To access them the Defendants trespassed onto the disputed lands and fell trees, construction of a log pond, construction of logging road, which cause depletion to environment through these unlawful activities.

10. The Claimant also relies on a local court case No. 3 of 2004, which is still pending determination by the Malaita Local Court. Upon that claim of right, license No. A101108 issued to Defendants be nullified and should be a valid ground to sustain the grant of ex-parte orders.

11. The Defendants oppose the application for contempt of Court, for reasons that the Claimant's tribal land of aimaua remains untouched and was not included as part of the concession area. By the sworn statement of Gabriel Wakato filed on 15th March, 2013, affirms that hunanahu sub-tribal land remains untouched by the Defendants logging operation. That land as it appears presupposes as belong to the Claimant. Mr. Wakato also deposes that on 6th March 2013, he signed a declaration with customary land owners of konaire and ruruone within aimaua land who confirmed that there was no entry by the Defendants logging onto those lands which they own. He also deposes that the correct boundaries were decided and demarcated by the aruaiasi and arisirina Council of Chiefs, which were true and according to Are'are custom.

12. In comparison and measuring the boundaries claim by the Claimant to the map attached to G. Wakato's sworn statement, it appears the disputed lands is as shown by No. 3 and 4 of that map. They are aimaua tribal land and manunaitawarao tribal land. Those two tribal lands fall in between osia river and haruta river.

13. In the Chiefs hearing (Exh. JM4) attached to Claimant's sworn statement, the Claimant had maintained his claim of the land with the same boundaries. In its determination, the Chiefs decided that there was a common boundary that separated aimaua tribal land, which is owned by the Claimant, and manunaitawara'o tribal land own by Moses Ramo. Being aggrieved by that decision the Claimant utilised section 12 (1) (a) of the Local Court Act, by filing a referral case in the Malaita Local Court. An attempt by the Local Court to hear the land dispute was unsuccessful. Meantime that referral case is still pending determination by the Local Court.

14. Also noted is a case, which actually not emerge in the submissions but perhaps may have some bearing in consideration. There was a Local Court case No. 1 of 1988 (Exh. AM2) attached to sworn statement of Aloisio Maekai, which the Court found and believed that Tawairao land boundary was in the bush and did not extend to the sea. That evidence was affirmed by two representatives of Mr Moses Ramo who were present at the survey. Both Mr Wasinihona and Mr. Raphael approved that statement as true. The same statement was referred to in the decree at paragraph 7, not with the exact words, but to the effect, "... manunaitawara'o is truly separated land or state, Iora at the bush. The Local Court decision was appealed against to the customary land appeal Court but the Customary Land Appeal Court affirmed the local court decision. That decision could have significant impact on the Claimant's claim.

15. Having identified the boundaries of the disputed land and having identified which land the parties own from those decisions, then came the timber rights processes.

16. In Form II determination persons as lawfully entitled to grant timber rights were identified for 24 tribal lands. Those lands are said to have comprised the concession area presumably located within manunaitawara'o tribal land. Having compared the number of lands from Form II determination and lands of which description the licence applies to known as concession lands, they are almost the same except for one additional land in Form II determination.

17. Drawn from the evidence it becomes crystalline clear that the disputed land is marked no. 4 (manunaitawara'o tribal land). And that is the land that formed part of the claim the Claimant instituted in the Chief hearing and eventually a referral was made, and currently pending Local Court determination.

18. At this juncture, I am satisfied that the interim ex-parte restraining orders were appropriate to aid the local court perform its functions. In the interim, the Defendants should be restraint until determination is made by the Local Court in respect of the ownership of the land.

19. The rationale behind issuant of the restraining injunctive relief, whether it be ex-parte or otherwise, is expounded in the case of Simbe V East Choiseul Area Council[3], which the Court stated;

"...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 land appeal Court specifically vested with power to decide it"

20. This brings us to the terms of the ex-parte interim restraining orders. Have the Defendants failed to comply with the orders of the Court.

21. It is a settled law on civil contempt, which seems to say that for a civil contempt to arise there must be neglect, refusal or disobedience of a judgment or order of the Court requiring an act to be done within a specified time. Example of specific civil contempt in this case is breaches of injunction orders. The facts to look for must be breaches by the party whose obligation is to observe and honour such injunction requiring an act to be done, or neglect by the party upon whom on order is binding.

22. There is evidence from the sworn statement of Peter Himaru filed on 4th March, 2013, that by 4th February 2013, logging still continued despite services of the ex-parte orders were effected upon Defendants 4 and 5. Logging activities were carried on in the following customary lands; hauroa, poronamae, unuhairamo (ruruone) and moisiro, land areas which are not within the concession area. That evidence is supported by the sworn statements of Mr Aloisio Maukai filed on 26th March, 2013, and sworn statement of Joseph Manemaea filed on 26th March, 2013.

23. On the other hand there is evidence from sworn statements of Jacob Hoitara filed on 27th February, and 15th March, 2013 stating that the Claimants have customary ownership right over aimaua land which is not part of the concession area. Further, on paragraph 9 it states that the tribal land aimaua remains untouched to date nor will it be include in the concession area. That evidence is supported by the sworn statement of Gabriel Wakato filed on 15th March, 2013, who shares the same sentiment, and also the sworn statement of Martin Gelakau who denies any allegation of trespass by 4th and 5th Defendants into any or all sub-tribal lands within aimaua land. There are also survey reports by Forestry Officer and a Police Officer concerning the issue of trespass. This is not the case of trespass. It's a case of contempt.

24. It would appear that there could have been some confusion in this case; and it is relevant to precisely state the thrust of this case. The claim here is in the nature of category (C) and the major remedy sought in the claim is for judicial review. All other relief sought as declaratory orders, mandatory orders, trespass and injunctive orders are all minor portion of the main cause of action. Secondly, it has to be noted that chief's determination on 13th April, 2004 was not final. There had already been a case referred to the Malaita Local Court which is still pending hearing and determination.

25. On the whole, when one takes account of the entire perceptions of the dispute, it would reflect that the original claim by the Claimant, which was placed before the chiefs, was in respect of a land dispute concerning a portion of land bounded by Osia river in the West and Haruta river in the east. The chiefs had made their decision, and parties had acknowledged it was done. Thereafter, the Claimant made a referral case to Malaita Local Court against the entire chiefs' determination. If Aimaua and Manunaitawara'o lands are located between the two rivers then they are subjective to Malaita local Court. Any activity done on the land after the referral case was filed, that activity or development (as known by others as logging) is subject to be questioned in Court.

26. In this case it is common knowledge that whilst Local Court is yet to determine the issue of land ownership, logging activity penetrated the same land and commenced the process by way of Form I application endorsed by the Commissioner of Forest on 17th March, 2011. Followed by public hearing of the application by Provincial Executive on 24th and 25th May, 2011. By 6th June 2011 or thereafter, Form II determination was displayed. Followed by letter of no appeal dated 18th August, 2011.Subsequently a felling licence No. A101108 was issued to 4th Defendant on 23rd October, 2012.

27. Amidst the whole entire timber rights process, were the Provincial Executive and Commissioner of Forest aware that the land upon which the logging activity was about to be conducted was under dispute, and pending Local Court hearing. If the answer is no then were they been coerced or manipulated to defy the Court procedures, as the issue of land ownership take its course up the hierarchy of the land Courts.

28. It would be quite hard to accept any argument that the Claimant owns Aimaua land, which is outside of the concession area, and logging has never encroached into it. If so, then the concession area covers block no. 4 alone, Manunaitawara'o land, which is part of the land dispute referred to Local Court by the Claimant. To persist that the concession area is outside of Aimaua hence not within the interest of the Claimant, is an elusive theory. Whether it be Aimaua land or Manunaitawara'o land both are covered by the ex-parte injunctive orders, and both lands of which ownership is yet to be made by the Local Court.

29. Whether it is out of misunderstanding, ignorant or deliberation, or for the sake of argument to gain integrity and prestige, I am satisfied on the evidence adduce by the Claimant supported by sworn statements beyond all reasonable doubt, that the General Manager and Directors of the 4th Defendant and the 5th Defendant Mr. Jacob Hoitara himself guilty of contempt of Court.

Orders:

1. That the General Manager and Directors Mr. Lau Khing Hung and Hii King Kang of 4th Defendant be punished for contempt of Court by paying a fine of $4,000.00 each. Pay within two weeks in default of payment two months imprisonment, each.

2. The 5th Defendant, Mr. Jacob Hoitara is punished for contempt of Court by paying a fine of $4,000.00. Pay within two weeks in default of payment two months imprisonment.

3. The Sherriff of the High Court is hereby authorized to sell the logs cut, felled and removed from disputed areas as contained in the order of 31st January, 2013.

4. The proceeds of sale in order 3 be deposited into joint trust account pending final determination of this case.

5. Injunction orders granted on 31st January, 2013 still in operation.

6. Costs are paid to the Claimant.

The Court.

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^[1] [1998] SBHC 94; HCSI CC 356 of 1996 (8 June 1998).
^[2] [2005) SBHC 7; HC SI – CC 197 of 2005.
^[3] (1999) SBCA; CA-CAC of 1999 (9 February 1999).