Hatakera v Peisio [2016] SBHC 123; HCSI-CC 313 of 2016 (1 August 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN: OBED TREVOR HATAKERA & OTHERS - Claimants

AND: CHIEF NERIL PEISIO AND OTHERS - 1st Defendant

PACIFIC CREST ENTERPRISE LTD - 2^nd Defendant

Mr. Taupongi for the Claimants
Mr. Marahare for the Defendants

Hearing: 28 July 2016
Judgment: 1 August 2016

Oral application to strike out proceedings as failing to show a reasonable cause of action: Rule 9.75[b] of Court Civil Rules

Brown J:

These category A proceedings claim damages [presumably for trespass] to customary land and a permanent injunction to prevent both defendants from logging a parcel of land comprised in blocks 5, 6 & 7 of a harvesting coup approved by the Commissioner of Forests. The claimants say the harvesting plan included land of the Vitu tribe of Ranonga Island, Western Province, and while Ovana land of the Ovana tribe had been the subject of the timber rights process which recognised a boundary dispute between the two tribes over the three blocks, logging had proceeded.
Since appeals to the Kubokota Chiefs Council and hence to the Local Court followed the actual timber rights process under the Forestry Act have not been finalised it is necessary to firstly see whether the grant of timber rights to the 1^st defendant included the disputed land and if these claimants had been found to have rights sufficient to now afford them a right to enliven the jurisdiction of this court.
The defendants have by oral application sought to have the proceedings struck out for it is argued, the proceedings show no reasonable cause of action.

The proceedings had been set down for interparty hearing of the claimant’s various interlocutory orders sought, based on their statement of case and claim, proceedings before me today. Mr. Marahari relies on Rule 9.72 [b] and 9.75 [b][no reasonable cause of action is disclosed], his client’s conditional response and the sworn statement of his client, Chief Neri Peisio in support.
He says the basis of any claim for damages for trespass must rely on ownership yet the claimants are still pursuing that basis through the courts in contradiction to the conclusive findings in the timber rights process.

He says the claimant’s rights are not superior to those of the 1^st defendants. He relies on the decision of the Court of Appeal in Francis Pitabelama anors v Moses Biliki anors^[1] where the Court referring to the earlier case of Veno v Jino^[2]said;- “this court described the provisions of s. 8 [3] of the Forest Resources and Timber Utilisation Act as creating “another exception to the exclusive jurisdiction of the Local Court in disputes over customary ownership”. Although it was not necessary in Vino to discuss the issue that arises in this case, the observation must be correct. As was said in Simbe the identification of the customary owners is likely to be an essential step in the process of the determination under s. 8 [3]. The Provincial executive must determine whether the persons proposing to grant timber rights are lawfully entitled to do so and if not who such persons are. There is nothing in the Act to require that a dispute as to the persons lawfully entitled should be referred to the Council of Chiefs. There are two further points worth noting: first the FRTU Act is concerned with the identification of the persons lawfully entitled to grant timber rights. It is true that that will almost inevitably be the customary landowners of the land on which the timber stands but it is nevertheless the case that the purpose of the decision of the Provincial Executive and on appeal the Customary Land Appeal Court is different to that which is described in s. 12 of the Local Court Act. Secondly a genuine dispute as to land ownership does not necessarily arise just because it is claimed.”
Mr. Taupongi on the other hand said the question of ownership was very much a live issue. For neither the Provincial Executive nor the CLAC wished to touch the issue, so it is not correct to say the issue has been determined. In fact, a claimant has been, since the CLAC hearing, before the Council of Chiefs and not being satisfied, has appealed the Chiefs’ finding to the Local Court.

This court need follow the decisions of the Appeals Court when the facts fall within the same domain, and in this case as the Court of Appeal was careful to distinguish, the function of the Provincial Executive under s. 8 [3] of the Forestry Resources and Timber Rights Act, whilst having as an incident, ownership, is to determine those having the right to dispose of the timber rights in the customary land.

The Western Provincial Executive concluded the timber rights hearing on the 14 May 2009 following the Commissioner of Forests’ endorsement of the Form 1 application by Pacific Crest Enterprises Ltd over Ovana Customary land at Rannonga. The Form 1 had a map, of the area applied for, annexed. Apart from the contour lines and some village names and trig points, I am not assisted from a view of the map when faced with a dispute about the three logged blocks. While the 1^st defendant has annexed to his statement a copy of the Minutes of the Timber Rights hearing and the Minutes are also annexed to the statement of Obed Trevor Hatakera, one of the claimants, neither copy included various written submissions by persons supporting or objecting to the proposal by Pacific Crest, submissions which were referred to as exhibits. The Executive recorded the basis of the various submissions and on the evidence before it, after naming those of the Executive having particular knowledge of the customary land rights, found six particular persons “lawfully able and entitled to grant timber rights in the area bounded in red on the attached map being land held by the Ovana customary landowning group”.

Included in those six was Chief Neri Peisio, the 1^st defendant named as representative of the Ovana tribe. In the Minutes objections were recorded by various persons including Mr. Eddie Kotomae. He is recorded as objecting to “log a portion of his Vitu tribal and also covered in the application. When making his presentation, Mr. Kotomae basically read from his written submission attached herewith and labelled as Exhibit 5”.
Mr. Trevor Hatakera was also recorded:- “Claimed to be the spokesperson of the Gijiavara Clan of the Vitu tribe and told the hearing that he represented his father who was a Chief of the Vitu tribe and that the purpose of his objection was to dispute claims and /or submissions made over the Vitu land. In support of his claim, Mr. Hatakera showed a “jiku” and 2 fruits which are recognised traditional custom monies as evidence. According to Mr. Hatakera, the Vitu land objected to by Mr. Kotomae belongs to his father and his tribe now resides on Sambora, Vella La Vella. Mr. Hatakera clarified that Uncle Mark and himself “no loosim alketa but me fella must be long front line”. Mr. Hatakera argued that the manner in which the timber rights application was lodged and done without consultation is not acceptable so that it requires both parties to compromise first”.
The enquiry of the Provincial Executive is one of statutory construction, and while Mr. Hatakera may complain about proper consultation, the hearing in fact, after notice, afforded him time in which to consult with persons whomsoever he chose.

Martin Hite also disputed his boundary of the Boara/Lajei tribal and asked the Ovana tribe to go back to their correct boundary.
In the record of questions directed at the objectors, the Minutes show:-

1. The Chairman questioned Mr. Hatakera whether or not he supported the timber rights application and wanted development and what he meant when he said that he wanted compromise and Mr. Hatakera answered saying, “suppose olketa acceptim me and look save long daddy blong me” and that he would like to see “true consultation”.
   
2. The Chairman questioned Mr. Eddie Kotomae whether or not he objected to the Ovana land and timber rights application and Mr. Kotomae clarified saying that he did not object to the Ovana land and timber rights application but he disputed the boundary only and would like to see it excluded from the application. Similarly, Mr. Charles Rifia told the hearing that he only objected to having his Biete land included in the application and not the Ovana land.
   
3. Hon. Terry Kera questioned whether the 3 land boundaries objected to are owned by sub-tribes and Mr. Eddie Kotomae replied saying that in the case of Vitu, the land does not form part of the Ovana tribal land.
   
4. Hon. Richard Tekifono questioned Mr. Trevor Hatakera how his father became the chief of Vitu tribe on Ranongga when his father’s usual home of residence is on Vella La Vella and Mr. Hatakera answered saying “olketa self now appointim hem”.
   

In the summing up, Mr. Eddie Kotomae clarified “that some of the issues raised in the hearing were internal ones for the Vitu tribe to resolve themselves. Further he told the hearing that he respected his Vitu tribal chief and recognised the chief as someone who holds “reserved power” and so he did not want to bother him.
What is clear from the record of the Provincial Executive is that Mr. Obed Hatakera was not accorded status as an owner of Vitu land in those proceedings.

By Form 2-Certificate of Customary Ownership [Section 9 of the FRTU Act] the Executive named the six persons lawfully able to grant timber rights over the area of the marked map. Since the argument today concerns the three blocks claimed as Vitu land, I accept that those three blocks must be included in the area “bounded in red” on the map used by the Executive and the area affected by the Form IV agreement.

The Executive decision was appealed to the Western Customary Land Appeal Court which announced its decision on the 30 May 2012 and delivered a written judgment on the 22 June 2012.

The appellants were Mr. Andrew Savia claiming to be from the Ovana Land or tribe and Derrick Jiru who represents the Vitu and Vulu tribes who jointly lodged the appeal. The grounds were set out in a letter to the Clerk of the Court and were dealt with in sequence.
The appellant on behalf of Vitu tribe [Derrick Jiru] claimed the issue concerned the boundary with Ovana land which was said to overlap that of Vitu land. He did not oppose or object the timber rights hearing, neither challenging the ownership of Ovana customary land, rather he sought to stop the respondent {Chief Neri Peisio} from encroaching onto Vitu land. He had no dispute with the named persons able to grant timber rights over Ovana tribal land. The respondent accepted the common boundary with Vitu, Vulu and Boara tribal lands and had agreed in 2009 that the issue is manageable, in the sense that both parties can settle it amongst themselves.

The Court found the appeal ground had no merit to justify “ that the names in Form 1 are not the right people to grant timber right over Ovana customary land”, and dismissed the appeal.

The boundary issue was clearly left to be resolved between the parties represented by Mr. Derrick Jiru and Chief Neri Peisio who stands for the Ovana tribe. Since the license describes land by reference to the marked map, and the coup blocks have been marked by the forestry officers in conjunction with the license holder, the license holder in good faith in accordance with the implied undertaking given the Court by Chief Nei Peisio, needs to agree the boundary with his neighbours so that a fair apportionment of the value of the royalties obtained from the disputed land may be made. Derrick Jiru is not one of the named claimants in these proceedings, yet his standing both in the Provincial Executives timber rights hearing and the Appeals Court affords him authority to claim this right for a proper apportionment in accordance with custom. I accept the differentiation described by the earlier Court of Appeal when categorising the obligation of the CLAC to find persons able to grant timber rights as not necessarily concomitant with ownership for status of individuals within the community may afford some the right to speak for all the landowning community.

Mr. Derrick Jiru accepts those found to have the right to grant timber rights but he does not agree that his landowning group has been properly accorded recognition to some part of the land the subject of the license. I find no error in the CLAC approach in these circumstances. To remit the matter back to the CLAC would not serve the interests of justice, but further delay resolution. If the License holder cannot in all fairness reach an equitable settlement over the sharing of the royalties, the aggrieved party, Mr. Derrick Jiru, may sue in the Local Court for debt for his tribes’ moneys.

Yet Mr. Vitu is not named in the proceedings before me as a representative of the Vitu tribe, rather Mr. Obed Trevor Hatakera and those others claim. It is Mr. Obed whose sworn statement supports the statement of case where, in paragraph 2 he says:- “I was authorised by the Chief, all members of our Vitu tribe and all the claimants herein to make this sworn statement on our behalf in these proceedings.”

In the statement he refers to the appeal by Derrick Jiru from the Provincial executive decision “on our tribes behalf” to the CLAC. It can be seen from the Minutes of the Provincial Executive hearing that Mr. Hatakera claimed then to be spokesman for the Gijiavara clan of the Vitu tribe and that the Vitu land [objected to by Mr. Kotomae] belongs to his father and his tribe who now reside on Sambora, Vella La Vella. It is difficult to reconcile the apparent conflict on the one hand between the assertions of Mr. Hatakera that Vitu land belongs to his father [living on Vella La Vella] and on the other hand the obvious representative capacity of Mr. Derrick Jiru who appealed the decision to the CLAC with Mr. Andrew Savia. The representative of the Ovana tribe, Chief Neri Peisio acknowledged Mr. Jiru’s right to speak in the Executives hearing by stating the boundary dispute was one that could be settled between them.

Mr. Savia’s appeal to the CLAC was based on his denial of the right in Neri Peisio to claim chieftain status and speak for the tribe. The CLAC found on the evidence before the court that Neri Peisio was the paramount chief of Ovana tribe, with the right of control over the tribal land.

There was also an argument raised before the CLAC that no proper consultation had taken place and that the notices were defective. The CLAC found the ground was without basis.

The CLAC clearly considered the matters raised in the appeals and confirmed the six persons named in the Executives decision as those able to grant timber rights.
At no stage, did the claimants in these proceedings purport to engage in the appeal process to the CLAC neither claiming rights of representation of the Vitu tribe nor alleging a mistake in the findings of the Executive.

It is immaterial that Mr. Obed has proceeded by way of claim to the Council of Chiefs, whom he now alleges have vitiated the decision made, through fraud on the part of some of the chiefs causing him to appeal the decision further to the local court. Those proceedings are unconnected with the bald claim for damages against these defendants acting under appropriate license given in accordance with the FRTU Act.

The claimant has failed to show any right of ownership in the land in question nor have the other named claimants. They were not disputants in the CLAC proceedings which made findings in favour of the 1^st defendant and others, findings which facilitated the logging operations on the subject block.

As the Court of Appeal alluded to in the case of Francis Pitabelama, a genuine dispute as to land ownership does not necessarily arise just because it is claimed.
In these proceedings, it is plain that the assertions by Mr. Obed were not given credence by the Executive and he was not a party to the later CLAC hearing. The CLAC has decided on the matters required of it in accordance with the FRTU Act.
The Act provides, in section 10 [2]:-
“Notwithstanding any provision to the contrary in any other laws the order or decision of a customary land appeal court on any appeal entertained by it under subsection [1] shall be final and conclusive and shall not be questioned in any proceedings whatsoever.”

The right to deal with the timber resource over Ovana land rests with those named by the CLAC. It does not advantage Mr. Obed and it is immaterial that the disputing person, Mr. Jiru who spoke for the Vitu interests in the CLAC, disputed the boundary between the lands. It cannot in any way be seen as affording Mr. Obed the right to presume ownership and now seek to upset the findings of the CLAC. His rights arose from his statement “olketa self now appointim hem”. To use the phraseology of an earlier author about such a person as Mr. Obed, “he had a pushing way of shouldering himself [morally and physically] into companies and conversation that argued well for his shouldering his way up in life”. But his provenance to the land, or that claim of the other claimants, is not to be seen. The Provincial Executive obviously saw him as an improbable witness and he was not concerned with any appeal to the CLAC. I consequently find his assertions to be without merit in this case.
A claim for injunctions affecting the forestry rights of the 1^st defendant and the consequent rights of the 2^nd defendant and for damages is without basis in fact.

Orders.

The proceedings are dismissed.
The claimants shall pay the costs of both defendants.
I further direct that the judgment and orders be transmitted to the local court clerk having carriage of the appeal pending since the appeal is made nugatory by my findings and the ratio decidendi of the Court of Appeal.

By the Court

BROWN J

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^[1] [2007] SBCA 21; CA-CAC 04 of 2006 [10 May 2007]
^[2] [2006] FBCA 22; CA-CAC 02 of 2004 [12 April 2006]