Bird v Vago [2015] SBHC 66; HCSI-CC 457 of 2011 (24 July 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 457 of 2011

BETWEEN:

TUINITA BIRD
Claimant

AND:

REDLY VAGO
First Defendant

AND:

KOLOKO ENTERPRISES LIMITED
Second Defendant

AND:

XIANG LIN (SI) LIMITED
Third Defendant

Dates of Hearing: 18th February 2014, 4th June 2014,
19th September 2014, 21st may 2015

Date of Judgment: 24th July 2015.

Mr N. Laurere for the Claimant
Mr A. Pehu for the First and Second Defendants
Mr A. Rose for the Third Defendant

JUDGMENT

Faukona PJ: A claim in Category A was filed on 14th November 2011. The Claimant sought the following reliefs;

(a) A declaration that the second Defendant's License No. A-10624 does not cover Central Kohigo land;

(b) Damages for trespass against the first, second and third Defendants, to be assessed but limited to $3,000,000.00;

(c) An order that the first and second Defendants account for all logs

Felled within Central Kohigo land and for all proceeds of sale of round logs or milled timber derived from this land.

Brief background facts

2. In April 2010 the first and second Defendants submitted their Form 1 application for logging on Western Kohigo and Central Kohigo of Kohigo Island, VonaVona, Western Province.

3. On 16th July 2010 a Timber Rights Hearing was conducted at Noro in the Western Province. At the hearing Wilson Galaboti and Hopeful Piosasa attended on behalf of the Claimant and objected to the boundary as being from ghalughalu in the north to mandamadara in the South. They stated that it should be from ghalughalu in the North to Tiparere village in the South.

4. As a result of the objection the whole of Central Kohigo was excluded from the process and a revised map was executed as agreed upon at the timber rights hearing showing ghalughalu to tiparere to be the boundary separating West Kohigo from Central Kohigo.

5. On 13th August 2010 a determination by Western Provincial Executive (WPE) was published under Form II, identifying Mr Runi, Runikera, Vago, Sai, Joseph, Silas, Timmy, Pati and Todonga as persons lawfully and entitled to grant timber rights in the concession area bounded in red.

6. On 5th October 2010 a felling Licence No. A101021 was issue to the second Defendant to cover Western Kohigo customary lands as a concession area.

7. In December 2010 the Claimant alleged that the first, second and third Defendants entered Central Kohigo customary land and carried out logging operations, result of which this case was instituted on 14th November 2011.

Issues:

8. (a). What is the boundary that separated Central Kohigo land from West Kohigo land according to the Claims by the parties as contended.

(b). If the boundary is from ghalughalu to tiparere, then who owns Central Kohigo customary land?

(c). Did the logging operation entered into Central Kohigo land,

if so what is the extent of Defendant's liability?

(d). Can the third Defendant rely on the Technology and Management Agreement to include the first and second Defendants liability to contribute or indemnify them in full if the claim for trespass and damages is in favour of the Claimant?

Common boundary between West Kohigo and Central Kohigo lands.

9. On the outset, it is a trite law in this jurisdiction that the High Court has no jurisdiction to determine any boundary of customary land. For the Claimant to sustain her claim, she maintains that the boundary line that separates West Kohigo and Central Kohigo is from ghalughalu to tiparere. That was an affirmation derived from the decision of the Western Customary Land Appeal Court on 23rd April 1982. What appears to be lack of precision is whether the land being the subject of the decision described as kohigo is west of the boundary mark as decided. No wonder Justice Cameron in Pati & Todonga V Bato & Others[1] described the CLAC decision in respect of the same boundary as unclear and is capable of more than one construction.

10. During the course of trial the parties seemed to contemplate and agree by expression that the land being the subject of the decision is west of the boundary mark identified by the CLAC. It amplifies very plain and which all parties agreed that the land west of the boundary is owned by leanabako tribe and the Appellant in that CLAC case. The first Defendant in this case is of igolo/ ghasa/eapa clan or sub-tribe which traced its originality from leanabako tribe. The point of contention here is not so much on the land west or east of the boundary, but the boundary mark itself, whether it is from ghalughalu to tiparere or from ghalughalu to mandamandara.

11. The WCLAC had decided the boundary is from ghalughalu to tiparere. That is the boundary that separates West Kohigo land and Central kohigo land. It is all irrelevant to rely on agreements, letters, certificates and minutes of meetings to a Court decision which of its own a letter of law. Any material apart from a lawful decision cannot be afforded a status of law. In this case all that were recorded in those documents were merely relied on CLAC decision on the boundary. Therefore reliance on them tantamount to assertions. When cross examined by Counsel Pehu, the first Defendant admitted that the CLAC decision was in their favour. Therefore I find no difficulty to decide he is bound by that decision.

12. Apparently the Claimant is not interested on the land west of the boundary and the first Defendant likewise the same to the land east of the boundary. It is very clear that the disputed area is a small rectangular land envisaged by a number of maps exhibited by the parties. There is no dispute as to its boundaries. The question now is whether the rectangular size land is part of West Kohigo or east Kohigo. This boils down to the question as to who owns Central Kohigo land that lies east of the boundary. The land that lies west had been well identified and had already been determined. Mr. Ero who filed a sworn statement on 24/2/12 affirms what Mr. Vago said, is a mystery. Both of them should read the CLAC decision very carefully.

13. As to which tribe owns Central Kohigo customary land, again I must reiterate that this Court has no jurisdiction to entertain and to determine the ownership of a customary land, the authority is Simbe's case[2].

14. The argument advance by Mr. Laurere in support of the Claimant's ownership of Central Kohigo land are many but basically premised on CLAC decision on 23rd April 1982. That points to the fact that members of the first Defendant's tribe know the limit of ownership established by CLAC. That beyond the boundary (eastern side) was another tribe which owns the land and that tribe are ago/simaema tribe. To urge the Court to accept someone's knowledge of certain facts is a presumptuous effort and must be rejected.

15. The Claimant also relies on a letter addressed to the Principle Magistrate, Gizo and a certificate attached to it. In those documents representatives from ago/simaema tribe and igolo, eapa and gaso tribes expressed themselves with some kind of understanding that the boundary established by CLAC will promote a co-existence living in harmony by the two tribes. In my respectable view, any consensus expressed in a written form is merely an understanding in a conventional sense. It is not an agreement or a contract intended to create a legal relationship which binds the parties. Of course it is subject to adverse argument that it constitutes acknowledgement by the parties. However, the greater obstacle is that neither party can sue or be sued on the grounds of understanding and acknowledgment. There is no term or condition binding on the parties or provide liabilities and responsibilities identified in the understanding and acknowledgement.

16. This approach also applies to the declaration deposed under oath by the Chairman of Kindu Counsel of Elders and his Secretary Mr Ngumi, acknowledging ownership by Tena Boti of ago/simaema tribe. That recognisance was accorded to Mr Beti because he won a small piece of land called tiparere in a previous court. It does not concern the rights of the whole ago/simaema tribe so far as Central Kohigo customary land is concerned.

17. It is quite difficult, and an absolute disarray to allow the application of law to shift, that would be inconsistent. For the Court to decide in favour accepting acknowledgment by the Claimant's rights of ownership is a risk to do so. To rely on such agreement is fluid and has no legal basis.

18. If it ought to be allowed and accepted such reliance premised on agreement, declaration, and acknowledgement, then what would be the legal course if dispute arises between the parties. Will an aggrieved party sued or be sued on the basis of those understandings, agreement and declaration, or will he come to the High Court and seek remedy for damages for breach of terms and conditions and liabilities. In my respectable view such circumstance do not guarantee an aggrieved party to come to Court, he lacks standing. The only avenue available to entertain such dispute is before the Chiefs forum. The High Court lacks jurisdictions because all that is agreed upon is in regard to the ownership of customary land. I have to reiterate again that the proper forum is to seek the jurisdiction of the Chiefs tribunal.

20. Whilst the case is continued preceding another turn of events emerged. On 13th January 2014 about a month before the commencement of this trial, the Roviana Chiefs heard the land ownership issue in respect of Central Kohigo customary land. The Chiefs Panel after deliberation decided that Kindu tribe is the principle landowner of Central Kohigo customary land. The Panel also affirmed that the customary boundary between West Kohigo and Central Kohigo is at madamadara to ghalughalu which was established in 1914. That was in conflict with the Statutory Declaration which stated the boundary was from ghalughalu to tiparere.

21. The first point which notably distinguishes the decision of CLAC on 23rd April 1987, to that of the Chiefs, is that the boundary mark established by the CLAC was diverted and moved in favour of the boundary contended by the Defendants. I noted the Claimant and perhaps the first Defendant are not a party to the Chiefs hearing. However, it appears strange that the same Chief Arthur Paia who the Claimant affirms as her Chief and who authorized her to take up this case as a representative, was a witness to the Kindu tribe in the Chiefs hearing. There was nothing sinister about him, but appear as a witness in his formal status as a chief representing ago/simaema tribe. What effect was his evidence had on this case? Mr Laurere submits that since the Claimant was not a party to the Chiefs hearing therefore not binding on her? Then the next question arises, what about the principle of privity, does it apply here?

22. Perhaps a different route could have been recourse to should the parties had informed the Court of the Chiefs decision before the commencement of this hearing. As it stands, the situation is subjected to various allusions. One notion is, so that the decision will distort this case. However, it appears no one ever realize, even the Claimant herself, that what her chief did was questionable and appear controversial.

23. In any event despite the Chief conflicting decision, the boundary set by CLAC in 1982 remain the same. It was a decision of a formal Court and a final one, there was no appeal lodged against it. It was first in time and first in right (one of equity maxims).

24. In terms of ownership the Chiefs said it all. The Claimant is a privity to the decision. The very Chief of ago/simaema tribe claimed by the Claimant as her Chief had taken a strange step and gave evidence to support Kindu tribe's claim of ownership to Central kohigo customary land. And the decision had gone their way.

25. It would appear this Court has no room to manoeuvre. What am saying is that I have no jurisdiction to determine the ownership issue. Even if the Claimant attempting to establish her tribes right of ownership, she would confront the Kindu tribe head on; that is her challenge. It would be unthinkable and out of normal decent reasoning why the Claimant's Chief supports another tribe altogether. This places the Claimants case in a very awkward positon.

26. The Claimant might have an ownership right to Central Kohigo customary land, but that has to be established by a rightful forum, and not this Court. Meantime her claim of ownership must stand as mere assertion. There is no contention that she did not possess any decision either from the Chiefs or the Local Court in her favour. Therefore it is prudent that the Claimant should not progress her claim further in terms of claim for trespass and damages. She hasn't got or possesses the necessary evidence to support her claim of right in ownership to central kohigo customary land.

27. I have determined the most two important issues of this case. The rest of the issues merely hang on these two issues. In the light of the conclusion I have arrived at, it is now not necessary to consider the remaining issues including trespass, extent of liability and the cross-claim.

Order:

1. Claim is dismissed.

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

The Court.

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^[1] Civil Case No. 425 of 2008.
^[2]