Sokaika v Baiabe [2015] SBHC 90; HCSI-CC 427 of 2015 (20 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 427 of 2015

BETWEEN:

DAVID SOKAIKA (Representing himself and members of Gagoniu tribe)
Claimant

AND:

ERIC BAIABE and SAMUEL TE SUA
Defendant

Date of Hearing: 24th September 2015
Date of Ruling: 20th October 2015.

Mr C. Fakarii for the Claimant
Mr N. Laurere for the Defendant

RULING

Faukona PJ: This application is for injunctive orders and is premised on Rule 7.38 of the SI Civil Procedure Rules 2007. The orders sought in this application are in the terms of royalty payments, log pond fees, advances made by Defendant and of course costs. The Claimant also states that only 20% of royalty be injuncted and the rest be released.

2. The Claimant is suing in his personal and representative capacity on behalf of the families who own gagoniu customary land, who have not received any royalty and log pond fees from logging operations on the said customary land under felling licence No. A 101182.

3. The Defendants are also members of the gagoniu tribe, who were appointed trustees over gagoniu customary land after the timber rights processes.

4. It is undisputed that the gagoniu tribe or clan is the customary owner of gagoniu customary land.

5. Following the completion of the timber right processes, the Mugaba Atoll Resources Company obtained a felling licence No. A101182 to fell, extract and export logs from gagoniu customary land. Mugaba Atoll Resources then contracted Pacific Crest Enterprises Limited to fell and export trees.

6. Having aggrieved of the failure by the Defendants to disburse and share the royalties and log pond fees to the Claimant and gagoniu families, the Claimant lodged a complaint to the Council of Chiefs of West Rennell to determine his claim against the Defendants for primary rights ownership over gagoniu land.

The issue of locus standi:

7. All along the Claimant is saying he had been opposing logging. He expressed that sentiment during the timber rights hearing and had appealed against the Provincial Executive determination to the Customary Land Appeal Court. About September 2013 the Claimant and the Respondents reconciled and allowed logging to continue on the land on the condition that the tribe should reap the harvest out of the operation from their land.

8. I have the privilege to read the sworn statement of Mr Baiabe including the annexures, filed on 23rd September 2015. I noted from the minutes of the timber rights, Annexure EB2, which has no indication that the Claimant had formally objected logging during the timber rights hearing. All I noted were his letters on 11th June 2012 and 12th October 2013 objecting to logging activities. However, those letters were written after the timber rights hearing had been accomplished. There is also no evidence of any appeal to the Customary Land Appeal Court.

9. Four months after the reconciliation process, about January 2014, logging machines landed on gagoniu customary land. A log pond was constructed and logging operation commenced thereafter. After the first export of logs, royalties and log pond fees were received by the tribe. Until today the Claimant claims has not received any share of the royalties and log pond fees.

10. It would be noted later that the parties in this case are close relatives; they are first cousin brothers. The Claimant was born from a female whilst the Defendants were born of a male who had direct attachment in custom to gagoniu customary land. From materials filed the Claimant has locus standi to come to Court and seek injunctive relief.

Triable issue:

11. Apart from the timber rights determination, the dispute in respect of gagoniu customary is in issue. Associate or link to the dispute, is the issue as to who has the primary rights of ownership to the land. Apparently, the parties are denying one another but accepted both are connected in custom to gagoniu tribe which own gagoniu customary land.

12. The Claimant has fashioned his description of the Defendants as persons without primary rights of ownership. That they had been adopted to another tribe in custom.

13. Likewise the Defendants are denying the Claimant as of gagoniu tribe. His father is from busageho tribe also from West Rennell. By customary law the Claimant should follow his father's tribe (patrilineal decent). Therefore he has no standing to come to Court and represent gagonia tribe.

14. I do not seem to be well versed with the rights of ownership of customary land by the parties because they are from Rennell Island, one of the Polynesian Islands in the Solomons. But according to the Claimant's submissions both parties are first cousins. The problem which I fall short to understand is the issue of custom adoption.

15. In any event those issues are customary in nature which this Court has no jurisdiction to entertain. Therefore they are best left for the Chiefs to determine.

16. If the Chiefs determination is in favour of the Claimant then he is entitled to be compensated by the Defendants for breaching their fiduciary duties, and for failure to disperse royalties and log pond fees to the clan and family members.

Pending case in the Chiefs Council:

17. On the issue of customary ownership of the land, the Claimant submits that a case has been filed with West Rennell Council of Chiefs. A receipt was issued to that effect, Exh.DS5, attached to the Claimant's sworn statement filed on 26th August 2015.

18. The receipt is disputed as to its authenticity. It has a wrong date on it, a date which has yet to come to being. Notwithstanding that, there is an explanation that it was wrongly entered by whoever issued the receipt. That is not the only mistake identified. The Land being the subject of dispute is bugaba land as appear on the receipt. However that anomaly
Has been rectified by the submissions that bugaba land is the same as gagoniu land.

19. In some areas in the Solomons, the Chiefs Council have their own stamps or seal that normally stamped on the receipts they issued. In the receipt as exhibited in this case there is no such. The question is should I belief the receipt? It would have reinforced the Claimant's evidence if the person issued the receipt deposed a sworn statement affirming that he issued the receipt for the fee received, and for gagoniu customary land dispute. In this case no such evidence is filed.

20. Undoubtedly, the issue in this case is customary land dispute which ought to be litigated in the Chiefs forum. Unfortunately the receipt of the fee paid gives some ambiguity and unclear impression.

21. In this case the Claimant has attempted to utilise the receipt to ground an application for injunctive orders. See the case of Bako v Gedi and Others[1], in which the Court of Appeal stated that a letter inquiring about referring a case to the Chiefs is sufficient ground to grant injunctive orders. In addition, it is pleaded that this Court exercise its jurisdiction in aid to the Chiefs Council conduct their sitting to decide on the customary issues before them. Despite the irregularities, the intention that the land issue be heard by the Chiefs had been well proclaimed. The Claimant has reflected his intention that the issue of ownership of land coupled with the acquisition of rights to property in custom are issues to be determined by the Chiefs. The fact that the money had been paid and receipted, with clear indication of bugaba or gagoniu land, the subject of this case be heard by the Chiefs, is sufficient ground. The Chiefs council in the area may not possess any stamp or seal that is the work of a well-established Council of Chiefs. It is not expected that all Council of Chiefs in the country most possess such stamp on seal.

22. The principle in Bako's case is a letter enquiring about referring a case to the Chiefs was a reflection of intention to file a case. In this case paying of the fee and issuant of a receipt, though there our defects, reflects an intention to file a case in the Council of Chiefs for hearing. In my opinion the receipt issued was a sufficient ground to grant injunctive orders.

23. In the case of Veno V Young[2] sum up test to be applied. His Lordship Palmer J, as he was then, stated,

"In so far as customary issues enumerated in this judgment are beyond the jurisdiction of this Court, that the proper forum for dealing with such matters is before the Chiefs and the Local Courts, this Court nevertheless has power to grant relief by way of injunctions as an aid to the exercise by a local Court or customary land appeal Court in its jurisdiction to decide such disputes. Such injunctive relief is designed to facilitate the determination of ownership issue in the local Court or the customary land appeal Court"

Balance of Convenience:

24. From legitimate reflection existed in the above discussions, the balance of convenience is undoubtedly tilted in favour of the Claimant. If no interlocutory relief is granted there is likelihood all royalty payments and log pond fees will be used without proper distribution to family members as beneficiaries and the clan as a whole. There may be other recent shipments, and should nothing is done now the trend of selfish ego will continue, and the rest of the clan and families will continue to be left out and in an unfortunate situation. No one will be prejudiced because the funds will be placed in a joint trust account. Apart from that, the Claimant only seeks 20% of royalty and log pond fees be restrained, 80% is free without any restrictive orders. To maintain the status quo the grant of injunctive orders are necessary.

25. For sure damages would not be an adequate remedy. The Defendants cannot afford to pay damages on their own. It is not known when the logging activities will stop. If injunction is refused there is high possibility that royalties and log pond fees will not reach other families or clan members.

26. I take note of the under-taking requirement as required by the Claimant. This is important to protect the Defendants against damages they may suffer by wrongful issuant of the injunction. The principle in the case of Sade V Attorney-General[3] is applied here. That the Claimant is an ordinary villager who does not have any formal employment. It would be unreasonable for him to make undertaking as to damages. I therefore waive off the requirement.

27. For reasons that I have outlined in this ruling, I therefor grant the injunctive reliefs prayed for.

ORDERS:

1. Order restraining the Defendants, their associates, agents, servants or relatives from disbursing 20% of royalties and log pond fees received and advances by the Defendants on behalf of gagoniu tribe, from logging operations on gagoniu land until further orders of the Court.

2. Order that the Defendants by sworn statement disclose records of all royalty payments received, log pond fees received and all advances made by Mugaba Atoll Resources Limited or Pacific Crest Enterprises Limited to the Defendants from logging operation on gagoniu land.

3. That a penal notice be issued that any further breach of this order amounts to contempt and punishable by fine or imprisonment.

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

The Court.

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^[1] (2011) HC-SI CC No. 366 of 2011.
^[2] HC-SI CC No. 152 of 2003.
^[3] (1999) SBHC 66; CC No. 200 of 1999 (28 June 1999)