Oile v Attorney General [2013] SBHC 166; HCSI-CC 372 of 2012 (6 September 2013)

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

Civil Case No. 372 of 2012.

BETWEEN:

CHIEF JOSEPH OILE (Representing himself and his Vaululu tribe of Vella La Vella).
First Claimant

AND:

GRACE LOGGING LIMITED
Second Claimant

AND:

ATTORNEY-GENERAL (Representing Government Assembly Executive)
First Defendant

AND:

ATTORNEY-GENERAL (Represent the Western Provincial Government Assembly Executive).
Second Defendant

AND:

KAVANA CORPORATION
Third Defendant.

Date of Hearing: 16th August, 2013.
Date of Decision: 6th September, 2013.

Mr. Kaboke for First and Second Claimant.
Mr. R. Rano for Third Defendant.
Mr. Banuve for the First and Second Defendants.
(Mr. Banuve has excused himself, his clients are not affected by this hearing).

RULING ON APPLICATON TO DISCHARGE AND/OR SET ASIDE INJUNCTIVE ORDERS.

Faukona J: Injunctive orders were granted by Justice Mwanesalua on 12th December, 2012, to restraint the third Defendant, its logging contractor, employees, invitees and servants from entering Vaululu and Naiqao/Kaneporo customary lands for the purpose carrying out logging until further orders of this Court. The Second order that all proceeds of logs felled and extracted from Vaululu and Naigao/Keneporo customary lands is paid into joint trust account to be opened by the Solicitor of the Claimants and the Third Defendant.

2. The substantive cause of action in this case is a claim in category (c) for judicial review pursuant to Chapter15.3, and was filed on 8th October, 2012. Upon that cause of action on foot, that the application for restraining orders were granted and perfected on 12th December, 2012.

3. Mr Rano for the Third Defendant now comes to Court with an application to discharge or set aside the injunctive restraining orders. The first issue he raises is locus standi.

Locus Standi:

4. The argument advance by Mr Rano premises on Rule 3.42. Rule 3.42, in my view, have two aspects of representation of community, tribe, line or group. Community or group in Solomon Islands context has its own social fabric and composition. At most, communities or group may comprise of different tribes or lines. In such a set up, they have, perhaps, different processes to select someone among them to represent them. Where a community comprises of one and the same clan or tribe there is no much of any difficulty in choosing a representative.

5. In this case, the argument is that the Claimant is not a chief and was not authorized by the tribe to commence this action. He is from a different ethnical descendant and hence not entitled to represent Vaululu tribe.

6. Mr Rano refers to the case of Pa'asi V Hero'au[1], which deals with the issue of locus standi in custom to institute a cause of action. The main argument revolves around the interpretation of R.3.42.

7. The facts in Pa'asi's case may not be similar to this one, but principles in law have equivocal application. In that case, there was no dispute that the Claimants were members of the Hanuarau tribe and who were timber rights grantors in respect of Hanuarau customary land.

8. The Defendants who through their land Trust Incorporated held license over certain areas including Hanuarau customary land. The issue before that Court was that the Claimants must provide proof that they were entitled and mandated by the Hanuarau tribe to commence and continue the action.

9. What is expected by Mr Rano is that if the Claimant is entitled to represent Vaululu tribe, he must be a man who hold important role in the Community, as a chief, or even an elder and was recognised as person who could be entrusted in representing the Vaululu tribe as the occasion demanded. The argument is that the Claimant is not a chief and member of a different tribe. There is no proof by way of collective decision by members of Vaululu tribe appointing and authorising him to represent and commence this cause of action. Proof as expected is by way of resolution by members of the tribe endorsing the Claimant to represent the tribe in this case.

10. To reaffirm that expectation I refer to the case of Sekovolovo V Eagon Resources Development Company Ltd[2], which Palmer J (as he was ) referring to the plaintiff as suing in his representative capacity as chief of the land owning Kogoatovo tribe. If by that authority Joseph Oile is not a chief of Vaululu tribe neither is a member of trustee of Vaululu, he has no proprietary rights to Vaululu land.

11. There are number of sworn statements filed by parties in support of their respective cases. One is by R. Evala who in his sworn statement filed on 8th May, 2013 deposed that Joseph Oile was not a chief and did not have beneficial ownership or interest over Vaululu land. He further deposed he is the Chief and has custodian right of Vaululu customary land. The same sentiment is equally shared by Teddy Balu in his sworn statement filed on 4th December, 2012. He further deposed that Mr Oile's father is not from there.

12. In contrary to sworn statements filed by R. Evala and T. Bulu, Joseph Oile filed three sworn statements, dated 10th October, 2012; 1st May, 2013 and 15th August, 2013. In all his sworn statements, he attested he is the chief of Vaululu tribe. He denies Reuben Evala as a chief (sworn statement filed on 15th August, 2013). In that sworn statement he deposed by affirming that he inherited the title and primary rights to the land because he descended directly from the first marriage of Saruo. R. Evala was born from the second marriage of Saruao who begot Naji. And T. Bala and others are descendant from the second marriage of Mauduvuduvu and Bibaduvuduvu.

13. There is no independent evidence to support J. Oile's contention but I noted in the Form II determination by Western Provincial Government Executive, in which they identified persons entitled to grant timber rights over Vaululu customary land. The list comprised nine individuals including Mr R. Evala and Mr J. Oile. Mr Oile was given the title of Chief by the Provincial Executive and not Mr R. Evala. There was no dispute in regards to that title. How a Government Agency as Provincial Executive would recognised Mr Oile as a chief. There could be no mistake, that there was information available to them at that time that Mr Oile was a chief. With respect and recognition, his title was invested on him in a determination of the highest authority in the Provincial Government structure. I have no doubt, despite no independent evidence, perhaps because of grievances among themselves; however, most significant Oile is a chief by right.

14. The issue whether there is any proof and authority coming from the tribe as a collective group mandating Chief Oile to represent them. In Form I application Chief Oile was an objector. It turned out differently when he was included as one of those identified as persons entitle to grant timber rights. That showed he was someone with status in the community and should not be overlooked. By including him and addressing him with the title Chief affirms he was someone who played an important role in the Community and who was well trusted. With that authority despite no minutes of any meeting, took upon himself, acknowledge his role as a chief and instituted this case on behalf of himself and members of his tribe, see Sekevolovo case above. By reasons identified herein, Joseph Oile has the locus standi to institute this course of action.

Inadequacy of damage:

15. The test is whether or not monetary compensation would be sufficient to meet damages if when ordered at the end of day. In Manepuhi V Marovo Development Company[3] Ltd, His Lordship identified the reason for not granting injunctive relief on page 4, paragraph 14, which he started,

"The balance of convenience only falls to be considered where there are serious issues to be tried and where damages alone are not adequate remedy. The latter is not present here and the former is not show because there is no claim on foot"

16. In this case, there is a claim on foot. The major issue is, whether it is in accordance with the relevant provisions of (FRTUA) that the Provincial Executive, at its extraordinary meeting, held on 14th July 2012, approving Form I application by the 3rd Defendant without conducting a timber rights hearing. Consequent to that, ten days later on (24/7/2012), the 3rd Defendant executed a standard Logging Agreement (SLA) with the trustees of Vaululu customary land. That is indeed an arguable case, in the nature of its technicality and in law.

17. This is a case where a claim has been filed and the issues and trustees were already being identified. Adequacy of damages can only be considered where there are almost equal chances by the parties under the balance of convenience.

18. Indeed this is all about money and who gets the biggest share. It is not a case where one party don't want logging and wish to preserve natural forest and environment.

19. In any event undertaking as to damages had been offered and filed by the Claimant. And that should be viewed as pledging security if the 3rd Defendant wins at the end of the day.

Timber rights process:

20. In his claim for judicial review, the Claimant sought quashing and declaratory orders in respect of determination and actions by the 1st and 2nd Defendants in respect of the whole entire timber rights process from the beginning to the issuant of Felling Licence No. A101236. All in all the whole entire timber rights process is questioned and challenged.

21. In reading Mwanesalua J's ruling dated 12th December, 2012, page 2, paragraph 2, last sentence, stated,

"... On unknown date in 2012, the Third Defendant purportedly signed a logging agreement in respect of vaululu customary land not signed by the landowners and done without the timber rights hearing. There was a clear breach to Forest Act".

22. That conclusion was reached after His Lordship had read all the materials filed and he was satisfied, therefore grant the orders.

23. I have read the Standard Logging Agreement signed by Kavana Corporation and customary landowners of Vaululu where three trustees were signed on behalf of the customary landowners.

24. Interestingly Felling License No. 101236 issued to the 3rd Defendant was without any timber rights hearing. Mr Rano submits it is not necessary because timber rights hearing had already been conducted in Form I application by the 2nd Claimant in which grantors had been identified. The sworn statement of R. Moveni (Commissioner of Forests) filed on 22nd February, 2013, Exh. RM4, an attachment of one of his letters dated 4th July, 2012 addressed to Provincial Secretary, Western, in paragraph 2 stated, 'that the Attorney-General advised that application by Kavana Corporation does not have to undergo another timber rights meeting". In the same letter he advised Western Provincial Executive to hold an extra-ordinary meeting to approve Form I application by Kavana Corporation in order to enable them facilitate issuance of a Felling Licence.

25. There is no production or attachment of the Attorney-General advice if written at all. In the absence of any advice, the evidence appears vague and insubstantial. The question is, is there indeed an advice? Since Kavana Corporation is a new applicant, will it not a requirement to comply with sections 8 and 9 of the Forestry Act, though grantors had been identified in the previous application concerning the same customary land. The fact that there is no dispute that no timber rights hearing was conducted.

26. In the famous case of Simbe V East Choiseul Area Counsel,[4] the court stated that the High Court can exercise its jurisdictional power by granting injunctive relief to aid the local and customary land appeal Court function to hear a pending case before them. In this case, there is no pending case before the two land Courts. Will that jurisdictional exercise of power restricted to pending case before the land Courts only. Considering the facts of this case, can the Court vision beyond and affirm the restraining orders made previously and allow continuing to operate; or discharge it and set it aside?

27.
In the case of Dalapakia V Attorney-General[5], Goldsbrough J stated; at paragraph 5;

"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 needs 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".

On paragraph 8 His Lordship continued;

"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 further hearing is misconceived"

28. His Lordship then made a very important and useful remark by saying in paragraph 6.

"...There is no criticism of the statutory scheme under Cap.40 as being less than fair or appropriate, just that these Claimants do not consider that they should be bound to follow it. They prefer to be allowed to mix and match those parts that are favourable to them. It is not far from an abuse of process"

29. That ruling was followed in Sakiri V Kalikongu Development Co. Ltd[6]. The facts in Dalapakia's case are almost similar to this one. I am therefore bound to adopt that judgment. To conclude, if there was any advice by the Attorney-General at all, that advice was indeed an abuse of process.

30. It may seem necessary by perception looking in; I have intruding in dealing with issues of substantial cause of action, for instances timber rights process. That I concur is an attempt to ascertain whether the Claimant has any prospect of succeeding in his case. That is not a strange ideology and approach, but I am comfortably sitting on Rule 7.11 (a) which states, "the applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed. See also Simbe's Case.

31. Having considered the materials before me and the submissions heard, I am not satisfied, and therefore must decline to grant the orders sought by the application.

Orders:

1. Refuse to grant order discharging or setting aside injunctive orders granted on 12th December, 2012.

2. Injunctive restraining orders of 12th December, 2012 to continue in force.

3. Costs payable to Claimants.

The Court.

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^[1] SBHC; HCSI-CC 479 of 2004 (25 August 2008).
^[2] [1999] SBHC – 116.
^[3] (2010) SBHC 75; HCSI – CC 294 of 2008 (20 October 2010).
^[4]
[5] [2006] SBHC 96; HCSI – CC 36 of 2010 (16 August 2010).
^[6] (2012) SB HC 42; HCSI-CC SI of 2011 (22 May 2012).