Saru v Galo [2013] SBHC 221; HCSI-CC 106 of 2010 (16 December 2013)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case No. 106 of 2010

Morreen John Saru, Ivan Vava, Amson Kiko (representing the Suta Tribe)
The Claimants

V.

Robertson Galo, Gedley Pita, Martin Leketo, Samson Mamarena and Owens Galo,
First Defendant

And

Robertson Qalo, Gorton Gogoboe, Woodington Songa, Nollex Busu, Deni Benjiman, Owens Qalo, Tender Pentan and Andrew Kiko (trading as Suta Land Holding Group)
Second Defendant

And

Robertson Qalo, Newton Qalo, Owens Qalo, Tender Poloso, Denson Benjamin, Gendley Pita, Norlex Busu, Woodington Soga, Ralph Pitakia.
Third Defendant

Hearing: 5th September 2013
Judgment: 16th December 2013

For the Claimants: James R. Kaboke.
For the Defendants: John Smith Pitabelama

Palmer CJ.:

• This is an application inter alia for the following orders:
  
• an account for all royalty money received in respect of 15% of FOB in respect of logs exported from Suta Customary land pursuant to Licence Number A10495;
  
• an account for all royalty money received in respect of 15% FOB in respect of all logs exported from access road within Suta Customary land and rental charges pursuant to the Log Pond Campsite and Access Agreement executed between the Third Defendant and Delta Timber Limited on September 16, 2004;
  
• Damages to be assessed for unpaid royalties;
  
• Exemplary and Aggravated Damages; and
  
• such other orders as the Court deems fit to grant.
  

Background information

• Suta customary land is a tribal land situated at Loloko, South Choiseul, Choiseul Province and is owned by the Suta tribe. The former chief, Chief Galokale Makoti, has been succeeded by Chief Owens Qalo.
  
• A timber rights hearing was held in 1995 over the said land when an application for timber rights had been lodged by Eagon Resources Development Company ("Eagon") and a determination made in respect of nine (9) persons, Chief Galokale (deceased), Kiko Poloso (deceased), Gedley Pita, Martin Leketo (deceased), Robert Qalo, Samson Mamareana, Zabana P (deceased), Sabolo (deceased), and Owens Qalo, ("the Representatives") as the persons representing all the persons, lawfully entitled to grant timber rights over the said land.
  
• Eagon never got around to commencing operations on the land. Subsequently, the Representatives incorporated the second defendant, Robertson Qalo, Gorton Gogoboe, Woodington Songa, Nollex Busu, Deni Benjman, Owens Qalo, Tender Pentan and Andrew Kiko, trading as Suta Land Holding Group. The Suta Land Holding Group ("the SLHG") then executed the timber rights agreement with the Representatives and after securing timber rights over their own land, it applied for a licence and was granted Felling Licence No. A10495. I guess having secured the licence, it enabled them to enter into a technology agreement with a logging company, Delta Timber Limited, to conduct logging activities on their land.
  
• It would appear SLHG was incorporated to facilitate the acquisition of a timber licence and for logging activities to be carried out for and on behalf of Suta tribe.
  
• In addition, a number of persons were further identified and styled "appointed representatives", inter alia to assist with investment and business activities which the tribe could enter into. These were:
  
  • Newton Qalo,
  • Tender Poloso,
  • Denson Benjamin,
  • Nolex Busu,
  • Woodington Soga, and
  • Ralph Pitakaka.
    

Issues in this case

• A number of issues arise from this case. First, is the issue of adequacy of the process of distribution. The Claimants say the process of distribution adopted was inadequate and they had not been consulted. They say it was not only inadequate but unfair and unjust.
  
• The second issue raised relates to the distribution and payment of royalties, more specifically entitlements of members of the Suta tribe. The Claimants assert they have not been paid their entitlements.
  
• The third issue relates to the consultation process and in the formation of the SLHG. The Claimants say the process is unfair and unjust.
  
• The fourth and final issue relates to allegations made against one of the representatives and members of the SLHG, Robertson Qalo that he dealt with all royalty payments without authority.
  

Preliminary issue of locus standi, membership of Suta Tribe

• During the hearing of this case, the issue of standing was raised as a preliminary issue or jurisdictional issue, which the court was asked to consider on the basis that if the court ruled in favour of the defendants, that would dispose of the application of the Claimants. I will deal with this first before addressing the issues that have been identified and orders sought.
  
• According to the evidence before this court, the process of distribution of royalties is done by some form of recording or "registration" of names of members of Suta tribe. The reason or rationale for this is that it enables the defendants to determine the issue of membership of the tribe and who is entitled to receive royalty payments and benefits.
  
• "Membership" it seems is resolved by some form of identification and or connection to the Suta tribal genealogy. This assumes the existence of an accepted genealogy tree that any member can check, but whether such genealogy exists is not clear. Also who makes the final decision about membership is not clear; the defendants say it falls within the responsibility of the chief and their appointed representatives.
  
• Ultimately, questions of membership raise issues of fact based on the criteria the tribe uses or accepts to define or confine membership to. If for example, membership is by virtue of a family tree, it raises further questions about members who reside on the land and those who reside elsewhere and whether they are equally eligible in terms of distribution of royalties.
  
• Membership can also be determined by some connection, whether through marriage, customary adoption, migration, settlement or some form of transaction connected to the land or tribe whether through gift, purchase, compensation or some other customary arrangements.
  
• On the issue of membership of the Claimants or locus standi, I am satisfied it has been clearly established that the Claimants are legitimate members of Suta Tribe, via membership of the Vina Poda clan. And Vina Poda clan is represented in the SLHG by Andrew Kiko, Tender Pentan Poloso and Ralph Pitakia.
  
• In addition, at page 17 of the closing submissions of learned Counsel, Mr. Pitabelama, it was conceded that "The First, Second and Third Claimants are legitimate members of Suta tribe; hence entitle to benefit from the royalty derived from Suta customary land."
  
• The concession also by the Defendants of royalty payments in the sum of $12,250 to Sherwin, the real brother of Ivan Vava (the second named Claimant), and descendants of the Claimants, Newton Tokotoko, Newman Kogoro and Tosen Segana are all evidence of membership.
  
• These admissions should dispel any uncertainty about the question of locus of the Claimants and entitlements to the proceeds of the logging operations on Suta land.
  
• The defendants however argue and it seems this is the main ground relied on against the submission of locus. Learned Counsel, Mr. Pitabelama for the Defendants say, that in spite of membership or right of membership, the Chief and the Representatives can disqualify members from receiving royalty payments and or any benefits derived from the logging operation, for custom infringements or wrong, such as being outcasts ("Vaidoko"), immoral practices, and rebellious activities against the Chief and people.
  
• It is clear on the evidence that the main reason for the stand taken by the Defendants to withhold further royalty payments were because of such things as the "rebellion" activities of the Claimant Ivan Vava, his "negative actions and attitudes" towards the tribe, continuing "ongoing disputes" over things planned or organized by the Suta Tribe, and or displaying "negative attitude".
  
• This argument however raises more questions than answers. First, is the issue of notice, (right to be informed), whether the Claimants have been informed of the decision or reason for their disqualification. Second, whether they have been given opportunity to be heard (the audi alteram partem rule) and given a fair hearing before any decision to have them excluded or denied their rights or benefits was exercised.
  
• It appears from the evidence that some may not have been accorded such basic rights, never mind knowledge of the substance of the allegations in custom, and whether the Chief or Representatives can deny legitimate members their proceeds (entitlements) from the logging activities.
  
• Thirdly, it raises questions about tribal rights, tribal property, including land, tribal genealogy (membership), tribal customs (whether any written code or rules of custom exist), and custom penalties.
  
• Fourthly, it raises questions about severance in custom; when can a legitimate member (tribal member) be excommunicated (cut off) from the tribe and lose his rights of membership, including entitlements to the tribe, tribal land, property and other rights such as rights of residence, use and identity. It raises questions about whether there are inalienable rights accorded to members of tribes, that is, whether once a member always a member? It raises questions about breaches in custom and penalties, bearing in mind always that custom is subject to the Constitution and the law, such as freedom of association, movement, expression etc.
  
• Fifthly, it raises questions of relevance, that the penalty imposed must relate to the breach or offence. Even if the Claimants oppose logging or the activities carried out by the defendants, does that necessarily exclude them from accessing or receiving their benefits and entitlements? Can they be denied something that rightfully belongs to them, unless they themselves decide not to receive it?
  
• On the preliminary issue of locus therefore, I am not satisfied it has been established on the balance of probabilities that the Claimants do not have standing to take up this case against the Defendants.
  
• Adequacy of process of distribution.
  
• The first issue raised by the Claimants queries the process of distribution. They assert they had not been consulted. I am not satisfied however the process is inadequate. Rather the evidence adduced showed it was more than sufficient to inform members of the tribe, including the Claimants of all or most of the activities of the Defendants. Some of the appointed representatives for instance, were specifically chosen to represent their interests so that if any of them had any concerns, questions or issues, they could find out or raise them with their representatives. There is nothing as well to suggest that the Defendants could not be contacted or approached by the Claimants. Rather the problem appears more on their (Claimants) own failure or refusal to find out what was going on or, attend meetings called by the Defendants. This issue therefore must be dismissed.
  
• Issue of distribution and payment of royalties, entitlements
  
• This issue raises questions about whether the Chief and or representatives can deny the Claimants their royalties or entitlements. I am not satisfied however this has been established on the balance of probabilities. In so far as some payments of royalties in favour of the Claimants have been withheld, these should be paid to the Claimants, unless they may have decided not to receive them.
  
• The argument in asserting that issues in custom should not fall within the ambit of this court cannot be sustained in the light of what has been said in this judgment. The court retains jurisdiction and can intervene in such situations by virtue of its supervisory role to ensure that the process utilized and arrived at such as the jurisdiction exercised is fair and just, not oppressive or unlawful, while the merits or issues in custom remain primarily with the chiefs and representatives.
  
• The same argument applies to the question of distribution and disbursement of royalty payments. The process relied on too must be fair, just and not oppressive, or unlawful.
  

Formation of the Suta Land Holding Group

• The Claimants assert that the process relied on is unfair and unjust. Unfortunately, they have failed to demonstrate on the balance of probabilities that this is so; for instance, if it was unfair, to what extent. I think this is a problem area for many tribal communities in the country and it is up to the tribal community to try and come up with something that will assist them in the fair and just distribution of proceeds from the logging activity carried out on their land.
  
• Sometimes it is not so much the formation of the group or representatives that is the problem, more the issue of distribution, if not, disagreements within the tribe as to the best or most practicable and economical use of the small royalties received. Sometimes it relates to a lack of understanding of the role of representatives or trustees, who are there to represent their interests, whether clan rights, family rights or whatever. Ideally, there should be some guideline on how a tribe is to be represented. I appreciate this is not as simple as it sounds but each tribal grouping should prayerfully and responsibly consider the best way of representation and the best way of using their money that has been received by way of royalties. When compared to the size of a tribe, which may be in the vicinity of one thousand to two thousand members or even more, the amount of money received is quite small.
  
• I do not think there can be any perfect system for representation and distribution etc. In this particular instance, I am not satisfied it has been established that the formation of the SLHG is unfair or unjust or that it has acted in an unjust or unfair way.
  

Allegations against Robertson Qalo.

• The thrust of the submission against Mr. Qalo is that he used all royalty payments without authority. It is not clear what "authority" is referred to here but from the evidence before the court, all or most of the activities which were described in the submissions of the Claimants referred to various purchases or transactions that had been made supposedly by Mr. Qalo without authority.
  
• The evidence adduced before this court however, equally showed that some of the purchases referred to had been authorized by the SLHG and that numerous meetings had been conducted for purposes of consultation. As well, learned Counsel for the Defendants points out that financial reports were disclosed to the Claimants and invitations issued to attend meetings to try and resolve some of their outstanding issues but to no avail, even at the direction of the court.
  
• I am not satisfied the allegations against Mr. Qalo have been established on the balance of probabilities, that he unilaterally used any money or royalties belonging to the Tribe without authority. The flaw in this argument is that having declined to take up the opportunity to come together and address any specific issue and concerns they have, they had opted to come to court. Unfortunately, they have not shown that the purchases were unauthorized or that Mr. Qalo had acted improperly. Allegations of fraud must be specifically pleaded and if it is alleged he has misappropriated funds, particular facts must be pleaded in support.
  

Conclusion

• Reliefs (i) and (ii) for an account of all royalty money received in respect of all logs exported from Suta Customary land and money received for access fees and rental charges pursuant to the Log Pond Campsite and Access Agreement cannot be granted on the basis that the evidence adduced showed that adequate disclosures of financial statements and reports in the years 2006 – 2009 had been provided but that the Claimants had not been prepared to discuss any issues or concerns that they have arising from these. They have not raised any particular aspect in this case to justify any separate orders for an account and accordingly the orders sought must be dismissed.
  
• In terms of order (iii) for damages for unpaid royalties, I am also not satisfied that any such orders should be issued other than that for the amount already calculated and determined by the Defendants. While the refusal to pay out their royalties may have been misplaced and misguided, when the circumstances which gave rise to such view is taken into account, I am not satisfied any orders for damages is warranted other than that the payments be disbursed forthwith.
  
• I am not satisfied a case for exemplary and aggravated damages has been made out and this relief must also be dismissed.
  
• This raises the question of costs. I also form the view that costs in this case should be borne by each party themselves. It is evident this case need not have progressed this far and incur unnecessary legal costs had the Claimants been more willing to raise issues directly with the Defendants, more so at the direction of the court to do so.
  
• This case is simply about members of the Suta Tribe disagreeing about how certain things were being done and needed to come together and have the matter resolved amongst themselves peacefully and amicably.
  

Orders of the Court:

• Refuse orders (i), (ii) and (iv).
• Grant orders (iii) in so far as it relates to the payment of outstanding royalties belonging to the Claimants.
• Order that each party bears its own costs.
  

The Court.