Alisae v Oita Holdings Ltd [2014] SBHC 105; HCSI-CC 182 of 2014 (9 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 182 of 2014

BETWEEN:

JOHN ALISAE & OTHERS (Representing Maraloa of Baimana)
First Claimant

AND:

THOMAS SALENA & OTHERES (Representing Talili Clan)
Second Claimant

AND:

OITA HOLDINGS LIMITED
First Defendant

AND:

OCEANIA TRADING COMPANY
Second Defendant

AND:

WESTERN PROVINCIAL EXECUTIVE (Represented by Attorney-General)
Third Defendant

AND:

COMMISSIONER FORESTS (Represented by Attorney-General)
Fourth Defendant

Date of Hearing: 15th September 2014
Date of Ruling: 9th October 2014.

Mr J.S. Pitabelama for the First and Second Claimants
Mr Nimepo for the First and Second Defendant
Defendant (1) and (2) not represented, application does not affect them

RULING

Faukona PJ: This is an application filed by the first and second Defendants to discharge interim restraining orders perfected by this Court on 20th June 2014. The orders were obtained by way of ex-parte application.

2. This case concerns logging by the first Defendant which contracted the Second Defendant to undertake logging operations on two customary lands, known as oita customary land including uho island and hasaoriau customary land on Fauro Island, Shortlands, Western Province.

3. There was a timber rights hearing resulted in a determination by the Western Provincial Executive (WPE) on 30th April 2013. Mr Dominic Jomu was identified as person lawfully abled and entitled to grant timber rights over the three land areas known as concession area. They are known by their boundaries as (1) uho island (2) Obeani ovau to kikiribona to patukobelai and then to obeani ovau (3) Panau river to koera river to toga river to kirahai to popolea and to panau river.

4. Against that determination, the first and second claimants together with others (8 in all) jointly appeal to the Western Customary Land Appeal Court (WCLAC). The WCLAC on 9th of October 2013 heard the appeal and allowed it by setting aside the determination by the WPE. The WCLAC further ordered in order 2 afresh, the Oita holdings to operate on portions of land that were legitimately owned by Mr Dominic Jomu and his tribe. Any new proposal to enter with resolution among parties.

5. It would appear from the CLAC determination, though the appeal was successful, Mr. Jomu can still undertake logging operation on land or lands he legitimately own. The problem is which land did he own? There was no mention of any land with boundaries demarcated own by Mr Jomu either at the timber rights hearing or in the determination by the WCLAC. The lands identified in Form 1, as a concession area, had been the subject of the CLAC decision; hence nothing was left Mr Jomu to own.

6. In the Form1 application, Mr Jomu's Company Oita Holdings applied to log in a concession area shown in the map marked green with general descriptions. The WCLAC is expected to arrive at a determination identifying a particular land own by Mr Jomu which he would exercise his rights to log and which lands own by other tribes or clans.

7. There was no particularisation of each land with boundaries clearly marked in a map by means of colour or bold dotted marks. What appear in the timber rights processes are three customary lands being the subject of the application. One is an island and two customary lands without names but with boundary names. All of that which Mr. Jomu able and entitled to grant timber rights himself without any further tribesman or clansman. The map as would seem used in Form1 application is exhibited as AS7 attached to joint sworn statement of Mr Alisae and Mr Salena.

8. In the midst of that anomaly the Clerk to the Western Customary Land Appeal Court, by his letter dated 18th November 2013 introduced for the first time that Oita Holdings to operate on portions of lands known as Oita customary land and hasaoriau customary land, purportedly own by Mr Jomu. There was no description of boundaries of those lands. Attach to that letter is a map coloured green with indication and positon of the two customary lands (Exh AS12).

9. Following the WCLAC secretary's letter Mr Jomu acted accordingly and hence a map was drawn Exh.DJ3 attached to his sworn statement filed on 9th July 2014. The map indicated in orange colour two customary lands asserted to be owned by him. They are Oita and hasaoriau customary lands including the island of uho.

10. On 21st January 2014, the Commissioner of Forest recommended to Western Provincial Executive to approve and endorsed Form III between Oita Holdings and trustees of oita and hasaoriau customary lands pursuant to Section 12 of the FRTU Act. On 23rd January the Provincial Secretary issued Form III to Oita Holdings and trustees of the two concern customary lands.

11. From hence on the process set on motion and eventually a logging licence No. A101254 was issued to Oita Holdings on 30th January 2014.

12. A harvesting plan for 2014 was submitted but was rejected by the Director of Operation per his letter of 10/3/14, alluded that after plotting of the amended map they found that the area is the same as the initial application that has been set aside by the WCLAC. Ten (10) days after the Directors letter, the Commissioner of Forest on 20th March 2014 approved the same 2014 annual harvesting plan submitted by Oita Holdings with certain directions that logging operation should be confined to lands covered by the timber rights process. Again another misconception of the entire case.

13. What actually gave rise moving the process forward with eventual granting of logging licence, was an impracticable quality of exercising jurisdiction by the Clerk to WCLAC on personal level. He could have abstained himself from identifying on a map two lands which Mr. Jomu claimed to be he's which he could log following the CLAC decision. That could have been a decision expected and left for the CLAC in its collective and arbiter function. What the clerk did was an unprecedented exercising of power beyond what the law vested on him. In such circumstance, it is proper to describe such action as exercising extra-ordinary powers which is not authorised by law. WCLAC could have rightfully identified those lands Mr Jomu and tribe own in their decision with clear demarcated boundaries rather than making a blank decision.

14. When comparing the initial map on Form 1 of the concession area, with the map Exh. DJ3 attached to Mr Jomu's sworn statement filed on 9th July 2014, there is no different however the same including uho island. Conclusion can be drawn that the Defendants are conducting logging operations on the same lands that had been set aside by WCLAC when it determined the appeal from WPE decision. The only difference is that blocks 7 and 8 are not included as part of hasaoriau land claim by Mr Jomu. And blocks 4, 5 and 6 are the same with the exception of two green tips on the eastern part of the orange land.

15. I could able and confidently conclude that the Defendants are conducting logging operations on customary land describe as 4,5 and 6 which known to the Claimants as paupau, maraloa and as hasaoriau in Mr Jomu's version. Whatever colour and names the parties wish to describe the lands makes no difference but boils down to one and the same lands. I therefore refuse to grant relief sought by the Defendants.

Orders.

1. The interim restraining orders dated 20th June 2014 to continue in operation.

2. Relief 2 and 3 sought refused.

3. Cost of this hearing is borne by the Defendants and payable to the Claimants on indemnity basis.

The Court.