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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).
Civil Case No. 319 of 2012.
BETWEEN:
VICTOR MAESI and HELEN HAIHU
Claimants
AND:
DAVID WAKASI, DORIS KITA and
UNITY RARO
First Defendants
AND:
MIDDLE ISLANDS INVESTMENT PTY LTD
Second Defendant
Date of Hearing: 28th October, 2013.
Date of Ruling: 14th November, 2013.
Mr W. Rano for the Claimants
Mrs M. Bird for Defendants (1) and (2).
RULING.
Faukona J: An amended claim was filed on 5th April, 2013. In that claim the Claimants sought a number of reliefs, however not limited to issue estoppel, right to grant timber rights, trespass and damages including manse profits and permanent restraining orders.
2. Where the issue of trespass and damages are involved, the requisite issue for determination premise on ownership of land, which rated as a forefront issue in a substantive claim.
3. Subordinate to that, is this application filed on 16th July, 2013. There are two major issues on paper. One is under the Forest Resources and Timber Utilisation Act, its application and right under the Act. The second is in respect of the land tribunals, their determinations and the effects of those determinations.
4. The fact that the preliminary issues comprise issue of land, any determination in favour will end the case early.
Brief facts.
5. On 17th November, 1982, Haununu Area Council determined a timber rights application by Integrated Forest Industries (S.I) Ltd, concerning customary land known as Bwaunamou land. On 11th December, 1983, David Wakasi, one of 1st Defendants appealed to the Customary Land Appeal Court. The appeal was allowed and the land was divided to three people. Mr T. Takaragimou to own land edged black, Mr J. Marasina to own land edged red and Mr S. Hagataravinuriu to own land edged blue. The lands were identified by a map (Court plan 3) attached to the decision and is exhibited in a number of sworn statements.
6. On 6th September 1988, Haununu Area Council conducted and determined further application by Integrated Forest Industries (IFI) concerning lands from Moroto bay west to Apurahe. The lands covered are: Bwaunamou 1 and 2. On 27th February, 1989, a standard logging agreement was executed. In 2001, operation by IFI ceased.
7. In 1997, Mr Wakasi said he acquired his logging licence. On 31st May, 2001, the licence was issued to cover certain customary lands in Ward 19, including lands within Ward 17, 18 and 20 but subject to successful completion of timber rights. The licence was also extended to cover Araoha and Bwaunamou 1 and 2. This simply mean Mr Wakasi cannot log lands within wards 17 – 20 without successful holding a timber rights hearing including Araoha and Bwaunamou 1 and 2 lands. That licence was expired on 31st may, 2006, again was renewed on 6th June, 2006 and expired on 6th June, 2008, with the same condition.
8. On 26th August 2002, Form 1 application by Wahere Development Holdings Ltd was lodged. On 2nd October, 2004, the Makira Provincial Executive convened to determine the application. Form II determination was published on 7th October, 2004. The application basically covered Bwaunamou, Arahoha, Hiru and Anaonigai lands.
9. Somehow, though not clear from Form II determination, it becomes apparent that Bwaunamou customary land was excluded for some reasons. That appeared to be confirmed by the fact that when licence No. A10117 was renewed on 6th June, 2006, the same condition still attached to the licence.
10. Earlier than 5th July, 2011, Wahere Development Holdings Ltd again applied for Form I. On 15th July, 2011, the Provincial Executive Convened and heard the application; a Form II was published to that effect. North Bwaunamou, which was covered by the application, was excluded because of dispute.
11. On 24th January, 2007, was a Chiefs hearing between Helen Haihu and David Wakasi in respect of customary land which was never mentioned in the findings of the chiefs, as well as in the accepted settlement form. However, the land boundaries were described on paragraph 4 of the accepted settlement form.
12. Noted from the accepted settlement form, paragraph 5, in which the Chiefs outline the reason for the dispute. The basic reason as stated therein was that a logging company landed machineries in November, 2003, without any timber rights hearing. However, the timber rights hearing were conducted later on 29th October. Also noted from the accepted settlement form, Nisely Nasi who was shown on the form as a witness for Mr Wakasi denies he was a witness at all. This raises the issue of authority, at the same time whether those machineries were owned by the 2nd Defendant or some other.
The boundaries of Bwaunamou land:
13. There are two extreme versions on the boundaries of Bwaunamou land. According to the Claimants, the boundaries are shown in the map Exhibit "MV" attached to Maesi sworn statement filed on 16th July, 2013. On the other hand, the version by the 1st Defendants as to the same customary land was reflected in the map attached to the CLAC and labelled as (Court plan 3).
14. In comparing the two maps, the Claimants version of the land is a large portion of land, which includes three portions of lands subject to CLAC. It also indicates that Awaniuraetagae and Manatanaruka lands are outside of Bwaunamou land claim by the Defendants but inside Bwaunamou land asserted by the Claimants.
Timber Rights hearing:
15. Focussing on the microscopic investigation and assessment of this entire case, it appears throughout that the 1st Defendant Mr Wakasi is not interested as being a grantor of timber rights concerning Bwaunamou customary land. How could he be as he was already a licence holder since 1997? Therefore, his status is quite different from two other 1st Defendants.
16. To question his indulgent would include the contractor, which executed the Technology and Management agreement. Should there be breaches in the timber rights agreement both could be liable for any damages proved.
17. In any event, I do not expect Mr Wakasi to grant any timber rights. By logic he can't. In that instance, there is no evidence that the 1st Defendants were ever determined as grantors. Not because there was no timber rights hearing, there were, but did not materialise as it progressed, or either abandoned, or was rejected.
18. Despite the puzzles, Wahere Development Holdings Limited signed a timber rights agreement with persons identified by CLAC in 1983. It could appear that that approach was the view of Mr Wakasi's former Counsel, see letter Exhibit DWF attached to Wakasi sworn statement filed on 27th June 2013. In the letter dated 9th October, 2007, the Counsel quoted what was said in the case of Chachabule Amoi V Qoanakae (CC No. 192 of 2006). It was held that where a timber rights hearing has been conducted and persons have been identified as those entitled to grant timber rights over an area of land, it is not necessary for further timber rights hearing be conducted each timber logging is proposed to be carried out in that area. Those identified as been entitled to grant timber rights are entitled to sign agreements with logging companies at any time without having to go through the timber rights procedure again.
19. That law seems to reinforce what Mr Wakasi had practically applied four years back in 2002. Not for long that view was altered in 2010, in the case of Dalapakia V AG[1], and I accept as good law. That pronouncement was adopted in Sakiri V Kalikongu Development Co. Ltd[2]. Goldsbrough J said as follows;
"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 Court be correct, and is indicative of the fact that the Claimants do not have an arguable case".
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".
20. In simple form, what the Courts are saying is that, any new application for timber rights in respect of the same land has to go through timber rights process, despite the fact that there were many occurred in the past where there are findings of persons entitled to represent the customary owners. In that instance, Mr Wakasi's developed ideology to have person identified in CLAC decision in 1983 to sign the agreement with Wahere Development Holding Limited could have worked out well under the authority of Chachabule case in 2006, but could not overcome the hurdle in Dalapakia case in 2010. Hence, any operation before 2010 could have been done on proper legal basis. The question is whether Mr Wakasi is aware of Dalapakia Case in 2010 that is a question of fact. And if not, there must be evidence to proof his intentional diversifying the law to circumvent the process.
21. The Claimants aver that around July the Second Defendant continue to remain on the land for its campsite, storage, workshop and base. Between end of July, and August 2012, the 2nd Defendant entered to remain on the land within Bwaunamou and felled trees. On or about 26th October, 2013, it exported an estimated 5000 cubic metres of logs. Therefore, they continue to trespass and continue cause damages. Those are questions of facts stemmed from the question as to whether there was a timber rights hearing conducted and who were the grantors identified and entitled to grant timber rights.
22. Mr Wakasi in oral evidence says his operation ceased since 2008. Attempts were made later to acquire timber rights but failed. However, he is still recognised as rightful owner of Bwaunamou land by 2nd Defendant by virtue of Leo's letter dated 2nd February, 2013. That assertion has to be measured up to the competing rights acquired from 1983 CLAC decision and the Chiefs determination on 24th January, 2007. The result will conclude which decision prevails over the other.
23. Would the evidence urge me to conclude that Mr Wakasi authorised the 2nd Defendant to engage in logging activities on the land without timber right hearing, he denies it. Despite that, the 2nd named 1st Defendant, Mrs Doris Kita admitted authorising 2nd Defendant to enter her land to cut timber for her house and for export as well without timber rights hearing. Mr Wakasi contended that the land is too small for a timber rights hearing. She admitted receiving $20,000.00 royalties. Furthermore, there are royalties paid by 2nd Defendant to Wahere Development Company of $67,360.11 and Arahoha Investment Company, on 14th August, 2012. On the heading, I noted that the licensee is Wahere Development Company. Besides that there was an environmental report drafted 8th August, 2008, after the Chiefs determination.
24. From evidence I could able to conclude that as recent as August, 2012, Wahere Development Holding, as Licensee still engaging 2nd Defendant to do logging, from which land, that cannot be verified because waimarega camp is outside of Bwaunamou land.
The Lands and Land Courts:
Bwaunamou land:
25. The boundaries of Bwaunamou land has been described in paragraphs 12 and 13 above. Suffice to say that the boundaries determined by the CLAC in 1983 were subsumed into the boundaries claim by the Claimants.
26. That appeal was diligently dealt with by CLAC. I must commend them for the effort manifested in the work. In fact, it was one of the early appeals and dispute concerning logging operations in the early stages of that development. From the record of judgment, CLAC approach in dealing the appeal equated with any appeal concerning ownership of customary land. There were claims filed, maps produced, genealogical recitement and a survey was conducted. At the end of it, customary rights to land ownership was determined and practically awarded. In my opinion, that should be a proper approach in dealing with appeals from Provincial Executive determinations. Solomon Islands as a Melanesian and aboriginal society, there suppose not to be any separation of rights over timbers and lands. Traditional principle adopted that a tribe that owns land also own the timbers. Where rights to timbers are at stake that should be determined together with rights to ownership before granting of timber rights.
27. On the issue of estoppel or res judicata, I do not seem to identify any course or path that this principle should penetrate through. Mr Wakasi admitted in his own evidence that the current Claimants are not related to those whom CLAC had identified as being entitled to grant timber rights 1983. However, that should emanate as impracticable to initiate a cause of action premise on issue estoppel. It will worth and value discussing the principle if there is a claim that the Claimants are related to a losing party, hence, one is estopped from re-litigating the same issue between the same parties again. There is no evidence to suggest this course is close for time being, but does not thwart raising it. All along I figure there is a misunderstanding of the applicability of the principle concerning this land.
Anawaniuraetagae land:
28. There are conflicting assertions in respect to the location of this land. I have the privilege to examine the maps more closely. I noted though there is some evidence that the land was located within waimera land; waimera land has never been defined by boundary and location. Upon further assessment, it appears that the land or good portion of it is situated in Takaragimou's land. Therefore, it becomes crystalline clear that boundary of the land is a real and live issue here.
Manatanaruka land:
29. The 1st Defendants claim this land is part of Bwaunamou land. I have examined the judgment by Local Court in 1976 exhibited as DW2 attached to Wakasi's sworn statement filed on 18th December, 2012. I noted the submissions by Rano that the Court merely said Phanuel Pirigiaharo claim the land to be his and not Rowotaginia. Mr. Rano is a Counsel representing a client (the Claimants) and he is bound to defend and serves his client.
30. For a Court of justice, I look beyond just the literal words and venture in depth to discover the real meaning of what were said. One significant consideration is the calibre of the Court President and the Clerk. Were they all well-educated? Local Court members, in the lower land Courts, even Clerks had either minimal standard of education or not at all. English grammar may not be of any restriction. One has to think deep to mean what the Courts said, in particular Courts in the 60s and 70s. This is a 1976 case and I accept what they said and mean that Manataranuka land was owned by Ph. Piringiaharo and not H. Rowotagania. The question ought to pause is whether that land is located within the Bwanamou land decided by CLAC 1983, or is it within the land boundaries claim by the Claimants. Again this is an issue of boundary and location.
31. I agree there was no decision in respect of ownership of Bwaunamou land between Wakasi, except for Manatanaruka land, a small portion where the claimant's uncle H. Rowotaginia lost to Wakasi's father. Further, I also agree that the decision of the Chiefs on 24th January, 2007 is a valid one against Wakasi which remain unchallenged: See Muna V Billey[3] and as approved by Veno V Jino[4]. But it has to be noted that impact and effect of that determination commenced on 24th January, 2007 up until now.
32. For the purpose of this application, I agree with Mrs Bird that the boundary is a live issue. With respect to Bwaunamou land itself there and two boundaries. Included is a small portion which Doris claim to be hers within Takaragimou portion, which she authorized Arahoha Investment Company to undertake logging without timber rights hearing.
33. This boils down to the very fact that there could have been illegal logging operations on Bwaunamou land after the Chief determination on 24th January, 2007, the recent could be in August, 2012, but on which land. If within Bwaunamou land then marked it on the map for verification purposes.
34. I find there are some disturbing anomalies in this case; may be because of lack of understanding of the law or deliberate kind of selfish behaviour. Payment of royalties' indicative of a continuous logging operation, but on which land, location must be definitive and constructively marked on a map.
35. Of course, I find there is some logging activities going on and may be without timber rights hearing. The fact is that we are not concern with any restraining orders and we are not concerned with the issue of trespass and damages. Any fact or legal issue litigated in Court must have an ultimate remedy. I don't see any remedy sought, and the result of this application does not pave a way to affirm any trespass followed by damages.
36. In conclusion, from what I have discussed, I now return by answering the reliefs sought.
37. With the mix decision, I feel cost be in the cause.
The Court.
[1] [2010] SBHC 96; HCSI-CC 36 of 2010 (16 August 2010).
[2] [2012] SBHC 42; HCSI-CC 51 of 2011 (22 May 2012).
[3] [2003] SBHC 9; HC-CC 284 of 2001 (11 December, 2003).
[4] [2006] SBHC 22; HC-CAC 2 of 2004 (12 April 2006).
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