Kaki v Kemisi [2014] SBHC 80; HCSI CRC 346 of 2012 (18 August 2014)

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

CIVIL CASE NO. 346 OF 2012.

BETWEEN:

DONILI KAKI, WALTER SEMEPITU, LIO BAZUPALA, MOTIKAI DEURA and DANIEL KIPILI.
(Representing themselves and members of their clan or tribe)
Claimant

AND:

ROBERT CHRISTOPHER KIMISI
(Representing himself and members of the belobelo clan or tribe)
Defendant

Date of Hearing: 1st August 2014
Date of Decision: 18th August 2014.

Mr G. Suri for the Claimants
Mr N. Laurere for the Defendant

DETERMINATION ON POINT OF LAW

Faukona PJ: The land in question is wagena B customary land located within miga land, a bigger portion, on Vella la Vella Island, Western Province.

2. On 19th November 1997, the Area Council convened to determine, inter alia, persons lawfully entitled to granted timber rights over that land. Subsequently it determined the Claimants were the persons entitled to grant timber rights over wagena A and B lands within miga land. At that hearing, the Defendant was an objector.

3. In its determination, the Area Council was assisted by a Chief's decision on 6-7 on March 1997, as the authority for landownership by the Claimants. Being aggrieved the Defendant then appealed to the Western Customary Land appeal Court (WCLAC) and the CLAC on 14th November 2006 determined by including the Defendant among the Claimants as rightful person lawfully entitled to grant timber rights.

4. After the determination, the Defendant refused to execute the Standard Logging Agreement (SLA) and hence frustrated the statutory right of the Commissioner of Forest to recommend to Western Provincial Assembly to approve the SLA.

5. The issue is whether the Claimants are entitled to execute the SLA without the Defendant with Wagena Development Co. Ltd as required by Section 11(c) of the Forest Resources and Timber Utilisation Act (FRTU).

6. Section 11 has vested power upon the Commissioner of Forest to recommend to Provincial Assembly to approve and administer the Standard Logging Agreement. In other words on receipt of the certificate of determination by Provincial Assembly or after appeal (if any) has been determined, the Commissioner shall recommend to Provincial Government to administer execution of Standard Logging Agreement by the parties. In this case, an additional person identified by the CLAC decision, the Defendant, had refused to execute the agreement. Hence frustrated the powers of the Commissioner to make any recommendation.

7. For relevancy purposes it is necessary to identify the land in dispute. The Claimants say the land in dispute is wagena B, whilst the Defendant concern with wagena A. In any event the Area Council determination covered both wagena A and B.

8. Mr Suri's argument can be summed up by the fact that since the Defendant is of a different tribe and not belong to wagena tribe, and that he had lost at the Chiefs and Local Court hearings, and subsequently died, he has no right to refuse to execute the Standard Logging Agreement. Mr Suri refers to the Court of Appeal judgment in Majoria V Jino[1] and the case of Muna V Holland[2] and Others.

9. Mr Laurere in submissions point out that there were three Chiefs hearing. One of them was won by the Defendant. He further states that the issue of landownership is yet to be decided as the appeal is still pending before WCLAC. In such circumstance, the case of Majoria V Jino[3] cannot apply, as it was decided on the basis of landownership which has finally decided. Therefore, the Claimants cannot unilaterally execute the Standard Logging Agreement.

10. This case is faced with a situation where legal complications emerged from the operation of the two regimes of Acts.

11. Before I comment on the regimes provided under the Acts, it is my opinion that there can be no more than one Chiefs' hearing concerning the same litigants and the same land. One hearing is enough and should one party aggrieved with a determination a reference case be filed with the appropriate Local Court. However, despite three Chiefs hearing there is no challenge to the fact that the Area Council had in mind the Chiefs determination on 6-7th March 1997 when it determined persons entitled to grant timber rights over miga land on 19th November 1997. The chief's determination is very clear that miga land comprised of wagena, kaneporo and nagei sorezaru lands and is vested on the Claimants and their respective tribes.

12. And then the Local Court decision on 10th May, 2013. The question is, against which chief's decision was the reference. In any event, the answer is irrelevant. The point is that the parties had finally brought their dispute before a Court of law and had determined in favour of raura wagena miga land, which the Claimants own and represent.

13. At this point in time we have two decisions. One by WCLAC an appeal from timber rights hearing which decided to include the Defendant among the Claimants as grantors, and the Local Court decision which excluded the Defendant completely from the ownership of wagena or miga lands. The question is, has the Defendant right, which entitled him to sign the SLA together with the Claimants?

14. The argument by Mr. Suri is that the Defendant is bound by virtue of the decision of the Velle Lavella Chiefs, the Local Court and by case authorities in Muna V Holland and Others and Majoria V Jino. I noted from Mr Suri's submissions, which is not challenged that the WCLAC on determining the appeal under FRTU refused to consider the issue of land ownership.

15. It now appears that the WCLAC decision has no basis and ineffectual so far as ownership of customary land is concerned. The principle adopted in Majoria case is thus;

"Consequently, if there is a Local Court decision on the question of customary ownership that is binding on the parties in the conventional sense, they are stopped from seeking a different decision in respect of that question under the regime instituted by the Forest Resources and Timber Utilisation Act. Furthermore, S.254 of Land and Titles Act provides that the decision of the Local Court as to customary ownership is final and conclusive and shall not be questioned in any proceedings whatsoever"

16. From the authority any reliance on the WCLAC decision including the Defendant as a grantor is almost without legal basis. That in my opinion had been subsumed by the Local Court decision. In other words, the Local Court decision concerning landownership right is a prevailing one. It came latter course in time, or most recent than the CLAC decision. The principle that whoever owns the land, owns the trees is naturally a conservative belief pre-existed before the FRTU came into force.

17. S.11 of the FRTU is a straight forward legislative provision. Its operative effect can only be frustrated where one grantor refused the operative demand.

18. Where a grantor is identified and decided based on grounds indifferent from being a landowner, apart from the rest who were landowners, then the rights of a non-land owner is subjective to those whom the Court decided to have rights to the land. His rights are not equated to them. Being decided as landowners, and who had been identified as those lawfully entitled to grant timber rights, the Claimants are legally obliged to sign the SLA without the Defendant. Section 11© empowers those identified to sign the SLA. The fact that the Defendant had refused to sign has no weight. By court decision, he was faced out completely from being a landowner. Even if he is still alive he would be forced by an order to sign. His failure and refusal would entitle the Claimants to sign without him.

19. In this case, the Defendant was an objector during the timber rights hearing. On appeal to the CLAC he admitted be wanted logging. His motive in the CLAC was a delay tactic to have the whole entire logging operation abandoned. His refusal to sign the SLA is a reflective of his attitude at the timber rights hearing. The Local Court had decided the Defendant's fate. In my opinion, he cannot seek to rely on the CLAC decision under FRTU as one of the grantors see Majori V Jino[4]. He does not own the land as had been decided; hence have nothing to do with it. Since he had died, the tribe he represented also faces out. The Majori case has made it clear, once customary land ownership had been decided the Defendant is bound by it and therefore stopped from seeking or relying on CLAC decision under FRTU, which in my view is almost redundant. In my respectable view, the Claimants can execute the SLA even in the absence of or without the Defendant or his representative.

20. In respect to CLAC appeal that was filed on 9th August 2013, and which is still pending determination, that be taken care of by processes under FRTU after the SLR is signed and logging operations commence.

Order:
1. The Claimants are entitled to sign the Standard Logging Agreement even without the Defendant or his representative.

2.Cost of this hearing be paid by the Defendant to the Claimants.

The Court.

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^[1] CA-CAC 36 of 2006.
^[2] Citation not supplied by Counsel.
^[3] Ibid
^[4] Ibid