Pone v Fitupogu Area House of Chiefs [2014] SBHC 101; HCSI-CC 101 of 2014 (2 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

CIVIL CASE NO. 101 OF 2014 AND 170 OF 2014
Civil Case No. 101 of 2014

BETWEEN:

JOSIAH PONE AND CHARLES MARIU NIHAMAE (Representing Lodusapeo Nakredio Tribe)
Claimant

AND:

FITUPOGU AREA HOUSE OF CHIEFS
First Defendant

AND:

DAVID SOLT AND JANATHAN SIMATA (Representing Terisa Jajae Tribe)
Second Defendant

Civil Case No. 170 of 2014

BETWEEN:

JONATHAN SIMATA, JASON AUMANA AND DAVID SOLT
Claimant

AND:

CHARLES MARIU NIHAMAE
First Defendant

AND:

JOSEPH HEIMANE
Second Defendant

AND:

PACIFIC LOGGING COMPANY
Third Defendant

AND:

GALLEGO RESOURCES LIMITED
Fourth Defendant

Date of Hearing: 15th September 2014
Date of Ruling: 2nd October 2014.

Mr G. Suri for Claimants in Civil Case No. 170 of 2014 and first and second Defendant in Civil Case No. 101 of 2014.
Mr W. Rano and C. Fakarii for Claimants in Civil Case 101 of 2014 and first and second Defendants in Civil Case No. 170 of 2014.

RULING ON APPLICATION FOR INTERLOCUTORY ORDERS AND APPLICATION FOR LEAVE.

Faukona J: There are two applications heard simultaneously at the same time. First is an application by the Claimants in Civil Case No. 170 of 2014, and in respect of application for interlocutory injunctions, and secondly is an application by the Claimants in Civil Case No. 101 of 2014 for leave to bridge time to file a claim for judicial review, quashing the determination by Fitupogu Area House of Chiefs dated 1st may 2013. Strategically and for ease of reference I will deal with the two applications separately.

2. The two applications stem from a customary land ownership dispute and logging activities over certain lands, at Hograno District, Santa Isabel Province. The Claimants in Civil Case 170 of 2014 label the land as terisa jajae, which they own, and the first Defendant claim it as lodusapea, and the second Defendant claim it as terisa fafara land.

3. The claims by parties may vary in terms of description of boundaries and location, but the fact of reality is that the land was eventually logged. There was a timber rights hearing of which a subsequent determination was published on 6th June 2012. A logging licence was issued to the third Defendant on 26th October 2012. The fourth Defendant is the contractor to carry out logging operation within the land.

4. Before the timber rights determination on 26th October 2012, there was a land dispute heard by the Hograno House of Chiefs in land case No. 5 of 2011. The case concern lodusapeo customary land. The Chiefs decided that the land ownership was vested on nakminufunei lodusapeo mariu clan. The Chief who was expected to represent terisa jajae clan was George Kaepada who was not physically present at the hearing. In other words, the Chiefs proceeded with the hearing on ex-parte basis.

5. After the timber rights hearing there was another House of Chiefs hearing concerning terisa jajae customary land. On 1st May 2013 the Fitupogu House of Chiefs decided in favour of terisa jajae united. The other named parties were not present at the hearing including lodusapeo tribe and two others. Again the Chiefs proceeded ex-parte.

Applications for injunctive orders:

6. Injunctive reliefs are not final orders of the Court. They are prerequisite orders given on interim basis, which do not finally determine the rights, duties and obligations of the parties to a proceeding.

7. In this jurisdiction, the Courts have adopted the principles enunciated by the famous American Cyanamid case and Rule 7.11.

8. The substantive cause of action filed on 5th June 2014, provided a footage for this application which premised on the decision by the Fitupogu House of Chiefs. Upon that Chiefs decision the first, second, third and the fourth Defendants trespassed onto terisa jajae customary land, felled and converted trees or logs for sale and export. By virtue of the same decision a Standard Logging Agreement (SLA) signed by the first and third Defendants on 27th September 2012 is ineffective and unenforceable in law by operation of section 40 of Forest Resources and Timber Utilisation Act (FRTUA).

9. Hence, permanent restraining orders are required. From Mr Suri's submissions this application premise on two grounds, first is ownership of terisa jajae customary land and secondly Environment Development Consent.

Environment Development Consent (EDC):

10. The Claimants aver that lack of EDC is a ground for injunction application. There is contention that the Defendants were carrying out logging operations before applying for and obtaining Environment Development consent. The truth of the matter is not denied, however, confirmed by the Deputy Director of Environment by his letter dated 27th march 2014. Apparently, by noncompliance, the Defendants were in breach of S.25 (1) of the Environment Act 1998 as read with Regulation 10 (s) of the Forest Resources and Timber Utilisation (Felling Licences) Regulation 2005.

11. It would appear since logging had commensurated in 2013 without any Environment Development Consent (EDC) issued, should have prompted actions by the Commissioner of Forest or the Environment Department about the Defendants breaches. What could have been done was outline in Hulanga V Hulanga[1] criminalising such activities. The relevant paragraph is on page 3 paragraph 6 where His Lordship Mwanesalua stated,

"the Court notes the fact that MDC did not have any development consent from the Director of Conservation to conduct logging on the land. That is illegal. But is a matter for Police and the relevant authority to bring the matter to Court if they so decide. This Court merely deals with the civil aspect of the case"

12. In this case, nothing was done until the EDC was issued on 25th August 2014. Now the logging operation has moved forward. It would be perceived as out of context to bring into litigation the mischief that has been lawfully remedied. It is an argument that does not hold any validity.

Ownership of terisa jajae customary land:

13. The other issue raised is ownership of jajae customary land. The issue of ownership, in this case is the foundation of the cause of action. And the Claimants wish to argue that the finding of the Fitupogu House of Chiefs prevails over the timber rights determination made by Isabel Provincial Executive on 6th June 2012.

14. One particular hurdle the Claimants may definitely confront is that the Provincial Executive decision is not the only decision stands out in their way. There is also a decision by the Hograno House of Chiefs, which was heard first in time. They have to challenge. The question of which decision to prevail extends to encompass the decision by Hograno Chiefs as well. In reality, the claimants now find themselves confronting two decisions from two fronts. There is no mention of Local Court case of 1992 in the written submission except in oral submissions. It would appear the Local Court Case concerned kaipito land. From the map Ex-S1 the land as claim is part of the Claimant's land.

15. The Claimant's argue that they were not aware of Hograno Chiefs decision until it was attached as exhibit in this case. That is unacceptable. The minute of the timber rights hearing clearly indicated that Chief Josiah Pone, the first spokesperson reiterated that they had evidence to prove that his tribe own the portion of land they wish to do logging activities. He made reference to the evidence that Hograno Chief's decision was in favour of his tribe, the vihuvunagi. This was further affirmed by Mr. Elliot the second speaker who affirmed there was no appeal filed against the Chiefs decision.

16. It appears on page 5 paragraphs 2 and 3, that before determination, the IPE had enquired into whether there had been an appeal. The fact is that IPE was aware of the Hograno Chief's decision prior to determining who the grantors were on 19th June 2013.

17. The evidence of the two Chiefs decision and IPE decision is available as fact in this case. It is expected this Court to critically assess the challenge by the Claimants as to which will prevail. However, Mr Rano prompted me to note that the timber rights determination was in favour of the Defendants as well as Hograno Council of Chiefs. That being enough to render the Claimant's case without serious triable issue. The decision of Fitupogu House of Chiefs came later in time and stood out alone without support. Mr Rano further urged me to consider the case of the Lauringi V Lagwaeano Sawmilling and Logging Ltd,[2] the Court stated;

"the determination of timber rights in favour of the defendants against which there had not been appeal, and the decision of the Council of Chiefs about ownership in favour of the defendants, was enough to render the plaintiffs' case without serious triable issue".

18. Being as it may, I find the arguments as to which decision to prevail favours the submission raised by Mr Rano. However, on paragraph 13 in Mr Rano's submissions in CC 101 of 2014 that the question of which decision supersedes the other and be quashed is a serious issue that need to be justly determined. In fact, I would agree that it is an issue in law, which require legal arguments before determination.

19. The next issue is premised by reference to the application by the Defendants for leave to quash the decision of the Fitupogu House of Chiefs in Civil Case No. 101 of 2014. The risk as I am able to glean is that if leave is granted and the claim for judicial review goes through and if the Defendants succeed then CC No 170 of 2014 will collapse and will be ineffectual. If not granted then the issue of land ownership is still to be sorted in a proper forum.

20. I have to venture as far as identifying the risk at the same time avoiding show of gesture pre-empting any result. The fact is that the substantive claim is for trespass and damages. The issue of trespass and damages cannot be determined until the ownership and boundaries of the land in issue are finally settled.

21. Again this issue may not be serious in nature to be tried. Application will be heard premise on evidence that surrounds the conduct of the Chief's hearing and whether the provisions under the Local Court (Amendment) Act 1985 were complied with. As I have stated there is one issue remain as a triable issue to be considered at trial, and that is which of the decisions will prevail.

Damages as adequate remedy:

22. The issue finally identified as serious triable issue may be argued at trial but will not finalise or resolve the question of trespass and damages because of the party's rights to file a reference case with the appropriate Local Court. It boils down to the issue of ownership again which have to be dealt with by the relevant authority.

23. There are arguments as to the question of damages. I noted the Claimants had applied for timber rights to do logging themselves. One common denominator equated to parties is that they involved with intention logging to take place. The Claimants cannot now claim to protect the environment. However, any harm may be caused to the Claimants can be remedied by damages.

24. In submissions, the Claimants assert there will be more harm to them in allowing the logging to continue than the Defendants being restraint. The balance of convenience only falls where there are serious issues to be tried and where damages alone are not adequate remedy. In this case there is one serious issue and damages are adequate. Therefore, it is appropriate to suggest that the circumstance qualify for interim restraining orders. Reasons for granting the relief sought may not be sufficient but I take comfort in the use of the word "may" in Rule 7.11 which directly makes reference to discretion which I exercise herein being so satisfied.

Application for leave to extend time to file judicial review claim:

25. Rule 15.3.8 states a claim for quashing order must be made within six (6) months of the decision. However, the Court may extend time within or outside of the prescribed period for making, if it is satisfied that substantial justice requires it Rule 15.3.9.

26. The Claimants received notice of the hearing in April 2013. The Fitupogu House of Chiefs gave its decision on 1st May 2013. The Claimants justification for not filing a claim for judicial review against the decision was because they only got hold of a copy of the decision in November 2013, six (6) months after the decision was made.

27. One of the Claimants Charles Nihamae deposed in his sworn statement filed in 20th June 2014, that he was aware of the decision not long after the Chiefs heard the case. However, his attempt to acquire a copy from the secretary of Fitupogu House of Chiefs failed, though five (5) occasions were attempted.

28. The Claimants' argument is the question, which decision will supersede the other and be quashed. Mr Rano agrees that it is a serious issue needed to be justly determined. On the second limb of argument he raises the crucial question whether Fitupogu House of Chiefs decision can co-existent and be acknowledged in the face of pre-existed Hograno House of Chiefs decision. The other issue raise is whether the Fitupogu House of Chiefs decision is lawful and was given in compliance with S.11 of the Local Court Act in particular the definition of "chiefs".

29. The Defendants' argument is that failure to act swiftly must be reasonable, overwhelming, special and unavoidable to be justified under the principle of substantial justice. However, there is no argument to discredit five occasions upon which the Claimant Mr. Nihamae attempted to get a copy of the decision from the Secretary to the Fitupogu House of Chiefs. By unwillingness to give a copy prejudices the right of the Claimants to file a claim for judicial review in time. Is that not substantial injustice? Of Course it was. It prolongs and retardates the action to be taken swiftly so as to uphold the principle of substantial justice. I think that is the crux of this application.

30. I noted submissions go wide the circle to include letter by the Deputy Paramount Chiefs, Chiefs decision in a prescribe from 1 etc, etc. Some of those issues are not necessary at all to be considered in the application of this nature. Those issues may be raised at a proper time as may be required. For time being they are not relevant.

31. In am satisfied, that unwillingness to release a copy of Fitupogu House of Chiefs decision by the Secretary is an act prejudicial to the rights of the Claimants to file a claim for judicial review in time. This is permitted by the circumstances that substantial justice is called for. I therefore grant leave to the Claimants to file claim for judicial review within fourteen (14) days from the date of this ruling.

Orders:

1. Grant all injunction orders sought in the application in CC no.170 of 2014 as spell out in paragraphs (A–D).

2. Penal notice is hereby attached to the orders (Anyone breaching these orders shall be in contempt of Court, and shall be liable to imprisonment).

3. Application for leave for extension of time is hereby granted in CC no. 101 of 2014. Claimants to file claim for judicial review within the next fourteen (14 days) from the date of this ruling.

4. Both application succeeds cost be in the cause.

The Court.

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^[1] (2009) HCSI-CC 203 of 2009 (12 August 2009)
^[2] [1999] SBHC 93; HC – CC 131 of 1997 (16 September 1999).