Onamae v Eddie [2016] SBHC 191; HCSI-CC 284 of 2011 (26 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:
WILLIAM ONAMAE, PAUL KAIA& OTHERS
1^st Claimant

(Representing Ahua Landowners, West Are’are, South Malaita, Malaita Province)

SIMON ORIHAO, JOHN WAIKIRI & OTHERS
2^nd Claimant
(Representing Hake Landowners, West Are’are, South Malaita, Malaita Province)

AND:

TOISUTANA JOHN EDDIE, HAIKAU CARLOS AND OTHERS

1^st Defendant

(Trading as Rao Timber Enterprises)

SUNRISE TIMBER LIMITED

2^nd Defendant

Date of Hearing: 19 October 2016
Date of Judgment: 26 October 2016

Mr. M. Ipo for 1^st and 2^nd Claimant
Mr. P. Tegavota for 1^st and 2^nd Defendant

Application for damages for Trespass to customary lands following felling of timber

Brown J:

Reasons and Orders
These proceedings were commenced in 2011 by two groups, claiming to represent Ahua and Hake customary landowners, West Are’are, South Malaita.

In the statement of case of the Claim, the 1^st defendants (except one Jack Sunaiano) are admitted to be from the 1^st claimants’ landowning group who have rights to Ahua customary land. Jack Sunaiano is a member of the 2^nd claimants group with ownership rights over Hake customary land.

Then follows a series of allegations about the 1^st defendants felling licence A10750 and their trading under the name, Rao Timber Enterprises. For it was alleged by the claimants that the 1^st defendants failed to consult them for their consent as the determined and authorized members of the landowning groups.

Further the claimants alleged, following their complaints, that the Commissioner of Forests wrote to the 1^st and 2^nd defendants asking them to please explain why logs and properties “used to commit forests resources should not be seized”
The claimants say the defendant ignored the Commissioner’s request and the Commissioner suspended the felling licence of the 1^st defendant.

By defence filed 7 March 2012, the 1^st defendant deny knowledge (in custom) of the appointment of the 1^st and 2^nd claimants as representatives of the landowners (and consequently authority to commence these proceedings).
The defence recites the claimants are from the female side and the 1^st defendants are from the male side the line [of the clan].

The issues of genealogy were not relevant for the claimants conceded the 1^st defendants membership of the landowning group.

The issue of the right to fell Tress was the subject of the timber right hearing by the Provincial Executive on the 7 November 2007 when the 1^st defendants acquired the rights to deal with the timber on the lands. The Executive determination was not appealed against, as confirmed by letter dated 3 February 2008 from the Malaita CLAC office in Auki. By letter dated 29 February 2008 the Commissioner of Forests confirmed the 1^st defendants right to an agreement over Ahua land, and the Executive accordingly approved the timber rights agreement.

None of these facts pleaded in the various statements of case have by evidence been placed before the Court, but do raise a clear presumption that the 1^st defendant are part of the landowning groups concerned, and a presumption of regularity in relation to a timber rights process, at least as it affect Ahua land.

Following the 1^st defendant’s Defence a Response was filed on the 4 April 2012.

This Response followed an Order of the Court given by Chetwynd J on the 8 March 2012 refusing an application for default judgment directing that the matter proceed in accordance with Rules of Court.

Then followed an application for default judgment against the 2^nd defendant (the logging contractor of the 1^st defendant).

On the 30 July 2012, default judgment was given against the 2^nd defendant by Mwanesalua DCJ. Directions were given for a list of documents and inspection.

Later by order of Mwanesalua DCJ, directions were given for proceedings by way of sworn statements to be filed and served by 5 October 2012.

Then again on the 21 February 2013, it was ordered that the matter be adjourned generally.

Yet the matter appears to have proceeded and today comes before me for trial.

There has been neither appearance for the 2^nd defendant, nor defence. Its joinder as a party follows, it would appear, the unstated assertion that it was responsible for trespass and damage to the lands. By paragraph 5 of the statement of case, the claimants allege “The Second Defendant is an incorporated company under the relevant laws of the Country and has been carrying out of the business of logging and other related activities within the Country and was engaged by the First Defendants as their Logging contractor under their felling licence”.

I do not need to address the veracity of default judgment, notwithstanding the absence of any allegations of wrongdoing by the 2^nd defendant. The underlying cause of action must fail and hence, the order for judgment cannot stand.

For where the claimants are of the same landowning group, as they say, as the 1^st defendants, their rights to a just resolution of disputes amongst the tribe or line are rights in personam and cannot be adjudicated upon in this Court. They accordingly have not locus standi to commence these proceedings nor do they show a cause of action justiciable in the High Court. Their rights are to distributive justice in accordance with custom.

The proceedings are dismissed pursuant to R.9.75 (b)
Each party shall pay their own costs.

__________________
BROWN J