Kapvai v Pitakaji [2014] SBHC 32; HCSI-CC 468 of 2013 (1 May 2014)

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

Civil Case No. 468 of 2013.

BETWEEN:

METTELY KAPVAI
(Representing kobi clan of Kobongava tribe
of South Choiseul)
First Claimant

AND:

MARK PITAKAJI
(Representing rengana clan of kobongavaveveda tribe
of South Choiseul)
Second Claimant

AND:

JOY ITAIA
Defendant (Trading under the business name of OCEANIA
TRADING COMPANY)

Date of Hearing: 1st April, 2014
Date of Ruling: 1st May 2014.

Mr S. Toito'ona for First and Second Claimants
Mr M. Pitakaka for the Defendant.

RULING.

Faukona J: An urgent application for ex-parte interlocutory injunctive orders was made by this Court on 17th December, 2013. On that, date there was no claim formally filed. However, this Court takes comfort of Rules 7.9 and 7.12 of the Civil Procedure Rules. By R 7.12 an order was made persuading the Claimant to file a substantive claim on 20th December 2013. That order was complied with accordingly.

2. The claim seeks three declaratory orders; an order for production of inventory of logs; volume and species extracted from the land (Kobonga vaveveda) and an order for damages to be assessed.

3. The Claimants are representatives of two clans emanated from kobongavaveveda tribe in South Choiseul. The First Claimant represents kobi clan and the second represent the Rengana clan.

4. On 17th and 18th July 2012, there was a timber rights hearing conducted by the Choiseul Provincial Executive (CPE) in respect of the Defendants application to conduct logging operation on kobongavaveveda customary land. Subsequent to that hearing, the CPE published its determination on 29th August, 2012.

5. The determination identified seventeen (17) persons representing all persons lawfully able and entitled to grant timber rights over the land. The two Claimants were among the seventeen grantors. Having aggrieved of that determination the second Claimant and the brother of the first Claimant appealed to the Western Customary Land Appeal Court (WCLAC) but their appeal was dismissed on 15th February 2013.

The issues:

6. 1. There are two major issues; the first issue is the right to represent. Legally and technically, it refers to locus standi or standing. The question is has the Claimants right to represent their clans in this case.

2. Secondly, whether the failure to have form 4 agreement signed by all seventeen persons named in Form 2 was fatal to the licence issued.

Locus standi/standing:

7. The Common law approach and interpretation of locus standi or standing is someone who has an interest in the matter and will be affected by a subsequent determination. In Solomon Islands Rule 3.42 provide a mechanism whereby a community, tribe, line or group may sue or be sued through a person entitled in custom to represent that community, tribe, line or group. Further, the Rule adds that the Court on application by any party or its own initiative may require that person to provide proof of their entitlement in custom to act as such representative before any further step in the proceeding may take place. Where the issue is customary land a clan or tribe is expected to have interest. However, they have to be mandated by those he represent their interest in Court.

8. Mr Pitakaka submits that in order for both Claimants to represent two clans they must be mandated by their respective clans. In other words, Mr Pitakaka is actually reinforcing Rule 3.42 that the Claimants must provide proof of their entitlement in custom to act as representatives of their respective clans. He refers to the case of Alex V Kova[1]

9. In that case, on paragraph 5 Justice Goldsbrough referred to Rule 3.42 and recommended as a useful provision for a collective to bring proceedings without the need to name every member.

10. Mr Pitakaka also points out by making reference to the determination by the CPE and the genealogy table that was used at the timber rights hearing. He particularly emphasises that the second Claimant in the determination was a trustee representing parasa clan. In the genealogical table his name did not appear under either parasa or rengana clan. Concerning the first Claimant there were five of them representing galokisa clan in Form 2 determination. In this proceeding, he is the only person representing galokisa clan, then where are the four? Mischief has been reflected and should render both Claimants lack standing.

11. I have closely followed up Mr Pitakaka's submissions and I could able to perceive the mischief. To have someone not in the genealogy of parasa or rengana clans to represent either in Court cannot be the case. I could not able to find that he was not mandated to be spokesman. Therefore, the second Claimant can be perceived as from totally different clan who has no interest in the dispute. I also noted Mr Pitakaka himself falls into the same pit. Form 2 determination identified him and another as representing all persons entitle to grant timber rights in piukana land. On the same genealogical table, his name was not identified under piukana clan. It would appear to me the genealogical table was incomplete hence cannot be relied on as valuable piece of evidence.

12. Concerning the first Claimant, I find quite hard to accept Mr Pitakaka's argument. Though five were determined as persons representing galokisa clan, it is not a requirement that all of them should represent galokisa tribe in these proceedings, one is sufficient provided he was mandated by his clan. I find Mr Mettely Katovai has standing to represent his clan in these proceedings. I take comfort based on a minute by members of Kobongava vevenda tribe held at Gizo hotel on 30th July, 2012. At that meeting it was agreed that first Claimant and Mr Moses to be the leader of their tribe. Mr Pitakaji was present at that meeting but there was no mention of him. The minute was Exh. MK9 attached to the first Claimant's sworn statement filed on 12th December, 2013. As a leader he assumed authority to represent his tribe in any issue affecting the tribe or clan for that matter.

13. I find in the circumstances of this case warranted that both Claimants have standing to represent their clans and initiate this proceedings.

14. On the second issue, arguments revolve around the question whether the failure to have the standard logging agreement signed by all seventeen persons named in Form 2 render fatal to the licence issued. There is no dispute that two persons did not sign the (SLA), the two Claimants. It is not disputed that the Claimants refused to execute despite being requested to do so. In such circumstances, the Claimants argued that failure by the Claimants to sign therefore render the licence fatal.

15. To the contrary, Mr Pitakaka admits that it is not that the Claimants were not aware of the signing, but they personally refused, hence acted against their obligations. Consequently, both should be excluded.

16. The starting point is that at common law a contract to which there are two or more parties on one side, until the contrary is demonstrated, presumed to be joint and not joint and several. See Halsbury's Laws of England (4th Edn) paras 617-621.

17. In the case of Harry V Kalena[2] the court stated on page 8, paragraph 4;

"There is however, in S.8 (3) (b), nothing at all to suggest that all those entitled to grant timber rights will become joint parties to the ensuing contract, with a power of controlling the land or the timber rights of everyone else who is a party to the same contract.

18. A similar notion was echoed in Rupakana V Vozoto[3] at paragraph 17, which the Court stated;

"It is correct to say that nowhere within the legislation, as opposed to regulations made under the authority of the legislation, is there any indication of a requirement that all persons identified as representing the customary owners or a piece of land must sign a timber rights agreement. Regulation makes it clear that this is to be the case. Moreover the High Court has said the same when considering the question on a previous occasion".

19. The Court also made reference to the position in Equity which stated, "returning to the earlier agreement signed by only four of them than eleven survivors, it has long been the position in equity that some only of the trustees cannot act without agreement of the reminder".

20. Whilst no provision in the main body of the Act legislate on parallel rights and obligations of grantors to execute the agreement, the Regulations providing from Form 4 which require that the agreement shall be signed by all persons specified in paragraph 3 of Form 2 of the Schedule to the Forest and Timber (Prescribed Forms) Regulation.

21. From different perspective the facts in Rupakana case in some ways similar to this case but not all. Both cases demonstrated that some of the grantors determined by Form 2 executed the logging agreement without the consent and acknowledgment of others. That must be distinguished from the case of Harry V Kalena[4] which concern with the issue as to whether the power under clause 30 of giving notice to the company to suspend operations is exercisable severally by the individual who signed the contract as representative on behalf of landowners entitled to grant timber rights; or whether he may do so only jointly and so with concurrence of others who entered into the contract.

22. In Rupakana's case the Court grant the declarations sought and ruled the agreement and the licence issued were invalid. In Allardyce v AG[5] the Court refused to grant the declaratory orders sought by the plaintiff as well as the fourth defendant. In Harry's case, the Court refused to strike out and allow the case to proceed to trial so that evidence is adduced on the question whether the promise in clause 30 or power it confers is joint rather than several.

23. I have no doubt that since CPE determination the Claimants were overwhelmed with grievances. CLAC(W) did not resolve and provide relief, neither the tribal meeting held at Gizo Hotel. Despite exhausting relevant avenues for possible relief, the Claimants had never thought of an alternative to withdraw their names from being trustees. That could have been done at the CLAC during its proceedings. Realising legal avenue is almost at stake, the Claimants resort to absolute refusal to sign the standard logging agreement to secure a legal rationale for this case.

24. In reality the facts of this case is almost similar to the case of Vaguni V Dekurana Development Ltd and AG[6]. In this case, the Claimants are among seventeen (17) persons who were lawfully entitled to grant timber rights. Regulations make it clear that those whom the CPE determined in Form 2 shall sign the agreement. The Claimants refused to sign the agreement though persuaded to do so. Their reason as stated was because they did not accept logging in their land.

25. Apparently, the Claimants had failed to foresee they were not the only representatives of their clans. The first Claimant had four other beside him whilst the second Claimant had another. Those others subsequently executed the SLA with the rest as representative of all persons entitle to grant timber rights. In my respectable view that should provide and fulfilled the requirements under the Regulations.

26. A contrary approach should prevail should both Claimants were the only representatives of those persons entitle to grant timber rights. That is the core legal rationale for the Court's refusal to rule in favour of the application to strike out in the case of Harry V Kalena; to accommodate evidence at trial that may throw further light on the question whether the promise in clause 30 confers power as joint rather than several.

27. Further to that the power that confers must accommodate that the Claimants being the only representatives, and should they refused to sign, will leave their clans vulnerable in respects to their rights and timber, or it's proceed from those other landowners under the same contract. And further, to ensure payments of royalties to them as representatives of the landowners; deals with disputes with landowners and the Company over interpretation of the terms of the agreement to which landowners as such were not parties.

28. In these circumstances, others identified with the Claimants as representatives of their respective clans had signed, therefore making it not a requirement and a need for both Claimants to sign before it could validate the SLA and the licence that was issued.

29. On the issue of dead trustee there are set procedures for it. I noted there are correspondences and evidence to proof Robert Lala was the son of the deceased (Walter Kotovai). Provided the process was not done in secret, it gives less fatality to invalidate the SLA and the licence that was issued.

30. I therefore summarily dismissed the claim, the agreement signed by other trustees is valid and the licence issued to the Defendant is also valid.

Orders:

1. Order that both Claimants have standing.

2. Grant summary judgment for the Defendant and dismissed the claim.

3. Interim orders perfected, signed and sealed on 17th December 2013 discharged.

4. Cost payable to the Defendant.

The Court.

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^[1] [2010] SBHC 64; HCSI-CC 434 of 2005 (14 October 2010).
^[2] [2000] SBCA 1; [2001] 3 LRC 24 (19 April 2000).
^[3] [1989] SBHC1; [1988-1989] SILR 78 [18 August 1989].
^[4] Ibid par. 17
^[5] [1988-1989] SILR (18 August 1989).
^[6] [2012] HCSI-CC No.94 of 2012.