Wasi v Sanau [2015] SBHC 109; HCSI-CC 80, 244, 282 of 2015 (16 December 2015)

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

Civil Case No. 80 of 2015
No. 282 of 2015
No. 244 of 2015

Civil Case No. 80 of 2015

BETWEEN:

STEVEN WASI
(Representing customary landowners of
Arapuamora and Taninikaro lands)
Claimant

AND:

JOHN SANAU, CYPRIANO TAMORA, BEN HOROI and CHRIS WATE
First Defendant

AND:

JOHN HOU, WALTER HIKU, KELLY HOU,
GIBSO OASANAU and CHRIS WATE
(Carrying on business on trading as Southern
Forest Industry)
Second Defendant

AND:

GLOBAL (SI) LIMITED
Third Defendant

Civil Case No. 282 of 2015

BETWEEN:

CHRIS WATE
First Claimant

AND:

SOUTHERN FOREST INDUSTRY
Second Claimant

AND:

JEFFREY ISIOLA, LABAN HONIMAE, and STEVEN WASI
(Representing themselves and their families)
Defendants

Civil Case No 244 of 2015

BETWEEN:

JEFFERY ISIOLA, LABAN HONIMAE
KEMUEL KOKEPAINE, GEDION ATELIU and
DAVID AHUKELA
Claimants

AND:

CHRIS WATE
First Defendant

AND:

FOREST INDUSTRY
Second Defendant

AND:

GLOBAL (SOLOMON ISLANDS) LTD
Third Defendant

Date of Hearing: 21st October 2015
Date of Ruling: 16th December 2015

Mr. D. Nimepo for all the Defendants in CC no. 244 of 2015
for all the Defendants in CC No. 80 of 2015
for Claimant in CC No. 282 of 2015

Mr. B. Upwe for the Claimants in CC No. 244 of 2015
Mr. M. Ipo for the Claimant in CC No. 80 of 2015

RULING ON APPLICATION TO STRIKE OUT THE CLAIMS AND INTERIM ORDERS

Faukona, PJ: This application was filed by the Defendants in CC No. 8 of 2015 and CC no. 244 of 2015, to strike out the claims in both Cases and the interim orders issued respectively.

2. The Claimant in CC No. 80 of 2015 had filed a claim in category A on 16th March 2015. Premise on the claim and other relevant documents, interlocutory restraining orders were granted on 1st may 2015.

3. The Claimants in CC No. 244 of 2015, filed a Category A claim for trespass and damages done to registered land Lot 6 of LR 719 of which they claim as being registered joint owners of the perpetual estate of the registered lot. The Claimants also claim compensation for damages done to arapuamora customary land, and of course consequential restraining orders.

4. Premise on the claim and other relevant documents restraining orders were granted on 24th June 2015 against the Defendants. Later, on 30th June 2015, an amended claim was filed.

Grounds for striking out and discharging of interim orders:

5. It would appear, the only ground elicited by the Counsel for striking out the claims and discharging of the interim orders is in term of locus standi. That the Claimants in both cases lack standing or have sufficient interest to come to Court.

6. Retrospectively, the Counsel for the Defendants commonly concur that there is dispute as to the ownership of the land in issue.

7. However Counsel Nimepo further argues that in CC No. 80 of 2015, the Claimant has no standing because there was no objection raised at the timber rights hearing of which a subsequent determination by the Malaita Provincial Executive identifying the first and the second Defendants as persons entitled to grant timber rights on arapuamora and taniniakaro customary land had been made. There was an appeal lodged to Malaita Customary land Appeal Court but was dismissed. Mr Akosaua was a brother of the Claimant (Mr S. Wasi), and he was one of the appellants in the appeal.

8. Since the appeal was dismissed on 31st may 2013, the Claimant's rights had been exhausted. He cannot challenge the log felling licence No. A10114 issued to the second Defendant in CC No. 244 of 2015.

9. Virtually, Mr Nimepo incline that CLAC had finally determined the ownership of the land, and that right granted by that determination took precedent over the Chiefs determination on 18th September 2014.

10. The issue whether the determination by CLAC on appeal from Provincial Executive determination take precedent over Chiefs determination of the same customary land. That issue though legal and of paramount importance, the Counsels have not eloquently make expository submissions on it. As such gives less urge to the Court to give fair and liberal treatment to the issue.

11. In any event an appeal to CLAC from Provincial Executive determination is confine to S.8 (3) (b) or (c) of Forest Resources and Timber Utilisation Act only. It would appear the issue of land ownership may never been included in such an appeal. In the current case there was nothing. Paragraph 7 of the CLAC judgment expressly stated that the Court agreed with the respondent's submissions that the grant of timber rights is not based on customary ownership of the land but it is based under the processes and procedures of FRTU Act.

12. That paragraph reflected the understanding that land ownership issue is yet to be determined by a rightful forum crated by statute for that matter. Hence, the argument by the Claimant, that he comes to Court relying on the determination by the Chiefs in which they decided that the male tribe/clan had no heir, hence the female linage/clan control of the land. The Claimant is one of the female linage which was given the rights by the Chiefs. Premise or that the Claimants have locus standi to come to Court and seek remedy.

13. There is argument the Chiefs were not from the locality where the land was situated and were not registered and reorganised by Local Court requires full disclosures and evidence. There is nothing much in this case. Otherwise, in the alternative, is a question reserve to be raised at the referral hearing as an appropriate avenue. In regards to House of Chiefs, the Local Court Act does not talk about registration. S.11 defines chiefs as chiefs or traditional leaders residing where the land is.

14. With the question of ownership been determined by the Chiefs in favour of the Claimant and party that right should take precedent over the CLAC decision under the FRTU Act. Where particular and certain decision taken by the officials are irregular and controversial the person identified as landowners by the Chief's determination has right to question it in a Court of law. In this instance the Claimant in this case has standing or locus standi or sufficient interest to come to Court.

Issue of locus standi in CC No. 244 of 2015:

15. In respect to CC No. 244 of 2015, the argument against the Defendants is similar to that in the above case; see sworn statement of C. Wate filed on 25th June 2015. And that refers to unsuccessful appeal to Malaita Customary Land Appeal Court.

16. In addition, the Defendants are specifically reinforcing the issue of locus standi that Lots 6 belongs to Maka community in Southern Region. It is a cattle farm and comprised of station, village and resettlement. Lot 6 is not within the concession land and is not arapuamora customary land either.

17. The defendants are also saying there is a pending High Court case claiming fraud against the Claimants in registering Lot 6.

18. It is a trite law in this jurisdiction, where there is no decision made by any or one of the institutions conferred with powers to determine the issue of customary land ownership, in particular, the Chiefs, the local Court or the Customary Land Appeal Court dealing with that issue, then a decision in a timber rights hearing can be accepted as better rights conferred than nothing. In this case the appeal from Provincial Executive determination to CLAC does not concern the issue of land ownership, but confine to two areas I have expounded in paragraph (11) above. It therefore contemplates and accepted as prevalent law that the Chief decision on 18th September 2014, take precedent over the CLAC decision on 31st May 2013, in respect of land ownership. Until the Local Court determine otherwise, the chief's decision stands.

19. On the issue registered land Lot 6, LR 719, there is a documentary evidence exhibit "LHI" attached to Laban Honimae's sworn statement filed on 11th June 2015. The document is a perpetual estate register which bear the names of all the Claimants as joint owners of the estate.

20. Meantime that evidence remains valid for all purposes until a Court of law declares otherwise. A claim that fraud was committed in the process of registration cannot demean the current status of the document and the evidence it contains.

21. From reasons I have alluded, there is nothing convincing to establish that the Claimants have no locus standi to come to Court. They were the registered owners of perpetual estate, and they claim there was trespass committed by the Defendants in constructing logging road, and used the land for stock piling logs without their consent being sought.

22. For reasons I have stated I must therefore dismiss the application to strike out the claims and also dismiss the application to discharge the interlocutory orders in both cases.

Orders:

1. The application by the Defendants in both cases to strike out the Claims hereby dismissed accordingly.

2. Application to discharge interlocutory orders in both case refused.

3. The Defendants to pay costs of the applications to both Claimants.

The Court.