Kengava v Kuchibatu [2014] SBHC 77; HCSI CC 421 of 2013 (29 July 2014)

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

CIVIL CASE NO. 421 OF 2013

Between:

CLEMENT KENGAVA
(Representing Koma customary trustees and Timber rights grantors)
Claimant

And:

WERIO KUCHIBATU
(As Chief of Korasavara customary land owning group)
First Defendant

And:

JOACHIM QALOKANA, TITUS MANKOLISA and VINCENT KENABATU
(Representing themselves as land trustees of Korasavara Customary land and members of the Korasavara customary land owning group)
Second Defendant

Date of Hearing: 24th June 2014
Date of Ruling: 29th July 2014

Ms L. Ramo for the Claimant.
Mr B. Eteomea for the Defendants.

RULING

Faukona J: This application was filed by the Defendants on 13th May 2014 pursuant to Rules 2.9 and 7.5. The reliefs sought are, an order directing Varisi House of Chiefs to hear and determine the boundary dispute between Korasavara and Koma customary lands. And secondly to stay interim injunctive orders perfected by this Court on 14th November 2013.

2. Follow on from those interim orders the parties then appeared in Court on 20th May 2014 and agreed that the dispute concerning the boundary between Koma and Korasavara customary lands be referred to the Chiefs for hearing and that should resolve relief one sought by the Defendants.

3. In this current hearing, the Counsels agree that the Court hears the application by the Defendants. Both Counsels also agree that the only issue left for determination is the disposal of 145 logs that had been felled and were lying in the bush.

4. I have critically perused the application and I am able to conclude that it was an application in response to the interim orders of 14th November 2013. There was no mention of how felled logs were to be disposed of or treated, in both the interim orders and the application itself. Despite that, it strangely emerges in this hearing, which I will deal with accordingly.

5. It is agreed that there are 145 logs been felled and are lying on the ground. The Counsel for the Defendants argues those logs be untouched until the Chiefs determined the issue of boundary. His reason is that they were felled in order to provoke reaction by the Defendants.

6. On the other hand, the Counsel for the Claimant submits that it would be more appropriate that those logs be hauled and exported and proceeds paid into a joint trust account in the names of the Solicitors. This is to avoid the logs being left to rot and loose its value.

7. In considering the best approach to resort to, I noted Mr Etomea has agreed that it would take some time before the Chiefs finally determine the issue of boundary.

8. Undoubtedly, the Counsels are well versed with the processes and time taken to get a dispute determined by the Chiefs. It is agreed that it will take months or even years. An important point to note that a determination by the Chiefs is not a final one. Their decision is subject to reference to the Local Court. And that is expected to extend further delay. By then the logs would have been decayed and loose its value. At the end of it, no one will benefit from its value and resources.

9. Perhaps the best option is to arrange and have the 145 logs exported and proceeds deposited in a joint trust account in the names of the Solicitors. As the element of delay is anticipated as a predominant feature, it would be ideal that the value of the logs be preserved by converting them into cash. The main course of preservation is to have the logs sold and proceeds be preserved in a joint trust account until whoever finally wins the land dispute in Court will get the monies.

Orders:
1. Order that 145 logs be arranged and be exported and proceed paid into joint trust account in the names of both Solicitors.

2. Cost of this application is to be paid by the Defendants to the Claimant.

The Court.