Pas'asi v Arasihanua Land Trust Incorporated [2016] SBHC 219; HCSI-CC 479 of 2004 (19 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOSEPH PA’ASI, STEPHEN TAHUNIMAKE, JOHN MAKAANA,
ROMEO TOISUTA, WILLIE POIRARO, JOHN MAHANE, AND FRANCIS HASIA’U
Claimant
(Representing the Hanuaraua Tribe of Waisisi, West Are’Are, Malaita Province)

AND:

ARASIHANUA LAND TRUST INCORPORATED

1^stDefendant

JOY ITAIA
(Trading as Oceania Trading Company)
2^ndDefendant

THE ATTORNEY-GENERAL
3^rdDefendant
(Representing the Commissioner of Forests)

Date of Hearing: 9 November 2016
Date of Judgment: 2 December 2016

Mr. P. Afeau for the Claimant/Applicant
No appearance of the 1^st Defendant
Mr. J. Zama for the 2^nd Defendant
Mr. J. Muria of the Solicitor-General Office for the 3^rd Defendant

Brown J:

These proceedings were commenced in 2004 and have had much disputation, since then including an appeal from an earlier order of this Court to the Court of Appeal^[1]. It is convenient to reiterate facts leading to that appeal and the determination for the nature of the claim will appear from that ruling.

The appeal was by these seven who claim representative status for the Hanuaraua Tribe of West Are’Are, Malaita Province, seeking orders invalidating the effect of purported ‘Timber Rights Hearings” affecting the claimants land; for a consequential timber licence was granted, (it would appear from the recorded decision of the Appeal Court) to Oceania Land Trust affecting Hanuaraua Customary Land. In addition, the Appeals Court considered a timber rights agreement “in which the first defendant (John Hero’au), the head Chief of the Hanuaraua Tribe, had permitted to grant timber rights to the Trust” (The Trust in this context was the Arasihanuaua Land Trust Incorporated, the 1^st defendant). The appeal related to the Order of this Court given on the 30 June 2006 when, on the application of the claimants, the Court ordered:-

1. The 2^nd (Arasihanuaua Land Trust) and 3^rd (Joy Itaia (Trading as Oceania Trading Company) defendants be restrained from entering and remaining on Hanuaraua Customary Land or constructing roads within it;
2. Be restrained from logging and removing trees pending further order;
3. Logs already felled be sold and moneys paid into a Joint Trust Account; and
4. Any agreement for the use of the roads on Hanuaraua Land for access for transporting other tribes’ logs be discussed between the plaintiffs (claimants) and Members of the other tribes.
   

The Appeal Court then, after quoting from the judgment of the decision under appeal said:-

”It is our view what is important in this case is that the parties should get on with action. It has been around now for three years, the first summons for interlocutory relief was issued three years ago and we understand that no defence has yet been filed. It is therefore very important that the parties should comply with the procedural rules in the next stages of this case and that the matter should come before the High Court as soon as possible.

We therefore refuse the application to set aside the injunctions granted by the learned judge and we refer the matter back to the trial judge for him to deal with any problems which arise in procedure and then to get on with the hearing of this case when these matters, which raise serious questions of fact and law, can be gone into.

The application today is therefore dismissed”.

The injunctions given on the 30 June 2006 may be said to have become permanent. Then followed various orders of this Court.

On the 25 August 2008, Izuako J. heard an application under R 3.42 (proof of representation rights) by certain defendants for the claimants to provide proof they are mandated by the Hanuaraua Tribe to continue the proceedings, failing which the proceedings should be dismissed.

I set out the judges reasons why the application failed:-

...” I cannot agree with this position. An uncontested document from an independent and authoritative source such as the relevant council of chiefs and dealing with the question of who is who within the Hanuaraua tribe cannot be ignored. In the same vein, I see no need to expunge paragraphs of the 1^st respondent’s affidavit because they refer to tribal membership of certain persons which to my mind are matters of fact.

I am mindful too that in the course of proceedings such as this, several deponents are likely to make conflicting affidavits to support the cases of the parties regardless of the laws of perjury. A careful examination of the various affidavits, exhibits and documents placed before the court in this application by both sides agree on one issue critical to this application. It is the fact that the claimants/respondents are members of the Hanuaraua and that they command enough clout, recognition and responsibility within the Hanuarauan tribe to be made chiefs of three of the four sub tribes and members of the tribal committee.

I find no need to consider whether this action may be struck out or dismissed or whether the claimants/respondents may continue it as mere members of the tribe having locus standi by dint of their membership. There is no need also to give a generous or liberal interpretation to rule 3.42 as its wordings are unequivocal.

Another tribal meeting to seek a democratic mandate on the part of the claimants/respondents is not only outside of the contemplation of rule 3.42 but will promote the false notion those tribal meetings can be convened as often as parties to an action need to have their way. More than that, there will be as many tribal meetings as there are divisions in the tribe with the parties bringing conflicting minutes of these meetings. I have already referred above to paragraph 35 of Albert Alick Nori’s affidavit in which he deposed that a “continued political war waged against the chiefs, leaders and supporters of 2^nd applicant by the 1^st respondent and his associates culminated in a decision to convene one more final meeting of the tribe to end all speculations in decisions and doubts”. As the Court of Appeal had pointed out, there is need to resolve procedural issues and move on in this matter which after three years in court has barely taken off.

I find that on the balance of probabilities, the five claimants/respondents are entitled in custom to represent the Hanuarauan tribe. I find that they are sufficiently entitled in custom to commence these proceedings and to prosecute it. The application hereby fails”...

The judge has not alluded to the Arasihanua Land Trust Incorporated or how it has affected these proceedings for the Trust was imbued, it would appear, with power of the tribe to grant timber rights. With respect a finding on the balance of probabilities that certain persons are entitled in custom to represent the tribe is not available to this court. For by s. 239 of the Land and Titles Act, the manner of holding, occupying, using, enjoying and disposing of customary land shall be in accordance with the current customary usage applicable. This court is not the forum for that enquiry.^[2] For it is well understood, customary matters are better left to the accepted tribal authorities or chiefs, for truth is seldom given a stranger. As the Court of Appeal has said, this court may assist a proper finding whether by the Local Court or the Customary Land Appeal Court, by supporting injunctive order but has no jurisdiction to entertain customary questions arising in High Court proceedings.

Then the Claim came before Chetwynd J. on 19 October 2011 for a Pre-trial Conference when a preliminary issue was addressed. The issue related to the effectiveness of a Second Form 2 Certificate (given by a Provincial Executive in accordance with S.8 (3) of the Forest Resources and Timber Utilisation Act certifying its determination of those found able to grant timber rights over Customary Land) and indirectly a logging licence. To detail what had happened in this case, I set out part of Chetwynd J.’s ruling^[3]:-

...”As has been mentioned, a copy of the Form 2 certificate issued by MPE following the meeting of 24^th July 2003 is exhibited as AAN5 to Mr Nori’s sworn statement filed 29^th November 2004. There has been no suggestion the copy so exhibited is incomplete or is not otherwise an exact copy. It says the determination made by MPE in relation to section 8(3) is that Michael Oritaimae is entitled to grant timber rights in relation to Huro land, Moramai Paina can do so for Hahoramuhua land, Kouresi can do so for Ohoraha land, Raroisuu can do so for Siararaitoro land, Solomon Naotoro can do so for Tahiohu land and Francis Aniratana can do so for Hanoapusu land. The Form 2 certificate is conclusive evidence that MPE made no determination in respect of Hanuaraua or Surairu lands. If MPE intended to consider these lands at a later date this should have been made clear in the certificate or at the very least, by a covering letter or note.

The importance of a Form 2 certificate cannot be understated. It gives rise to a right of appeal under section 10 of the Act. It triggers further action by the Commissioner of Forests under section 11 which in turn triggers further action by the appropriate Government under section 12. Under section 11 the Commissioner has to be satisfied that there is no appeal (pursuant to section 10) or that an appeal has been disposed of and;

(c) the agreement for the granting of the timber rights referred to in such certificate has been duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of, such agreement accord with such certificate or, where there has been an appeal under section 10 with the order of the court determining such appeal

Once he is satisfied he then recommends to the appropriate Government that they grant approval to such agreement. Once the appropriate Government receives the recommendation pursuant to section 11 and a duly stamped agreement then in accordance with section 12 it issues a further certificate which is the Certificate Approving Timber Rights Agreement Negotiation or Form 3. It is the Form 3 certificate which has to be sent to the Commissioner which finally authorises him to issue the licence applied for under section 5. What this means is that there should be no substantial mis-match between Forms 1, 2 and 3, particularly Forms 2 and 3. In other words, if the Form 3 does not mirror the determination certified by Form 2 then it is defective. The appropriate Government cannot certify approval of the negotiations if they are between persons who are not named in the Form 2. It would defeat the whole object of Part III of the Act if an appropriate Government could ignore the effect of its determination, or an appeal from it, and issue a Form 3 certificate in respect of different persons and/or different land.

In this case the Form 3 certificate is exhibited as AAN 8 in Mr Nori’s sworn statement. It is dated 11^th November 2003. It certifies that Chief John Hero’au is the representative of Hanuaraua tribe or land and Chief John Kereha’i is the representative of Surairu tribe or land. As set out in paragraph 11 above, those two persons and those two lands were not part of any determination as certified by the Form 2 dated 24^th July 2003.

There is a second Form 2 certificate. That is exhibited as JP11 to the joint sworn statement of Joseph Pa’asi and Stephen Tahunimake filed 21st October 2004. It is dated 3^rd September 2004. This postdates the Form 3 certificate by almost 12 months. Obviously then the Form 3 certificate cannot relate to the September 2004 determination”... .

It may be said that the Second Form 2 Certificate was not accepted by Chetwynd, J. as it did not, in the judges view reflect the need for the Executive to re-convene the Timber Rights Hearing. While this Court has no jurisdiction in relation to a judicial review of the findings or acts of a Provincial Executive, [for the Forest Resource and Timber Utilization Act exclusively details procedures where persons are aggrieved by decisions] the judge did opine on the issue and obiter dicta, found that the logging licence which covered Hanuaraua Customary Land was defective.

The reasons said:-

...”Given the findings set out in paragraph 13, if it were necessary to look at the licence issued by the Commissioner certain observations could be made. A copy of the licence is exhibited as JP10 to the joint sworn statement of Joseph Pa’asi and Stephen Tahunimake filed 21st October 2004. It is dated 11th December 2003. Presumably it was issued as a result of the Form 3 certificate. As the Form 3 was defective, it included lands which were not the subject of any determination; a licence based on it must also be defective. The Commissioner can in no way be satisfied “the applicant has obtained the approved agreement referred to in Part III” ^[4].That conclusion seems to follow as sure as night follows day.

The preliminary issue can be dealt with this way. The Form 2 certificate of determination dated 24^th July 2003 did not include a determination about Hanuaraua land or Surairu land. Any further or subsequent certificates required under the Act which purport to include Hanuaraua land or Surairu land are defective and a nullity. The Form 2 certificate of determination dated 3^rd September 2004 did include Hanuaraua land. Any further or other certificates issued or dated prior to 3^rd September 2004 which purport to include Hanuaraua land are defective and a nullity.

Whilst that may dispose of the preliminary issue it is unlikely to dispose of the whole case. However it may persuade the parties to reach some sort of compromise and consider a consent order. The matter will be adjourned to a date a month or so ahead. If a consent order is forthcoming which does dispose of the case then the hearing can be vacated. On that basis I will says costs are in the cause”... .

The Executive act in furnishing the Second Form 2 is an act falling for consideration in accordance with S. 10 of the Act.

For “one of the features of the statutory procedure under Part 11 A (is) that an Area Council (Provincial Executive) is a Tribunal, and not a court of record, or indeed a court of any kind whether Customary or Common Law” ³

It is not available, then for this court, by way of prerogative writ even, to grant relief by adjudicating on this preliminary issue, for the recourse is for an aggrieved person to appeal to the relevant Customary Land Appeal court, allowed by S.10(2). For again, recourse to this Court earlier when one reads the reasons given by Izuako J at the ultimate paragraph, where the judge’s determination, “I find that on the balance of probabilities, the five claimants/respondents are entitled in custom to represent the Hanuaraua as tribe,” rather stands instead of a decision of a council of chiefs, local or customary land Appeal Court, or tribunals able to adjudicate upon ownership matters over customary land.

Certainly, only where a decision binding on the particular parties and favouring them as against other parties in these proceedings, will the High Court find jurisdiction in support of an application for injunctive relief.^[4] Unequivocal representative status to favouring them to represent in these proceedings in the face of the Incorporated Trust appearance need be exhibited. Such would not appear to be the case here.

This brings me then, to the submissions on behalf of the Claimants filed on the 2 November 2016 where, relying on the ruling of Chetwynd J, they pointed to an assessment of damages (for trespass) (For the second Form 2 Certificate by the Provincial Executive was found by Chetwynd J to be a nullity) The result nullifying the logging licence is claimed to be an admission of liability in these defendants in relation to the amended claim for damages for trespass. Certainly no unequivocal admission in the pleadings or in court has been made.

The Attorney General, representing the Commissioner of Forests appears to have accepted this proposition, for by Counsel, refers to two case law precedents and then pleads the statutory immunity since the Commissioner “issues licences under the (Forestry) Act but cannot be seen to be “trespasser”.” The precedents do not relate to the asserted “admission” of liability.

Mr. Zama, Counsel for the 2^nd defendant, Joy Itaia (Trading as Oceanic Trading Company) has filed a comprehensive reply to the claimants’ submissions which go wholly to the claimed right to damages for trespass and the relevance of the evidence furnished in support. The 2^nd defendant wholly refutes the suggestion that the judgments amount to findings that the defendants have committed the trespass and consequently the remaining matter for the court is that solely for assessment of damages. I do not need to consider the assessment of damages for it does not arise.

I propose to address the issues which have arisen as a consequence of the earlier orders.

In accordance with the ruling of the Court of Appeal, to which I have referred, this case cannot proceed on the basis of a presumed admission of liability for damages for trespass onto Hanuaraua Customary Lands; certainly no such admission has been made by the 2^nd defendants.

Trespass is a tort in common law, while Justice Chetwynd’s findings (be they accepted) go to the separate issues of legislative acts. For irrespective of whatever permits or licences the Commissioner purports to grant under the FRTU Act, by s.40 no such licence shall convey or be construed to convey any right which the Government [by the Commissioner of Forests] does not have, to enter or use private land without the authority of the owner of that land.

To enter customary land then, without the authority of the owner, may amount to an offence under S.4 of the Act, but the fact that a licence to log has by court order, been found to be void, cannot be seen nor accepted as proof of the absence of the authority to enter to the owner of the land. For in this case, the very opposite, an authority to enter, would seem to have been given since the late John Hero’au, appointed head chief of the Hanuaraua tribe, appears to have granted, by form of Agreement for Timber Rights dated 29 October 2003, as representative of the landholding units listed in the Agreement, to the Arasihanua Land Trust, the right to log in Hanuaraua land. And consequently, the Trust contracted with Oceania Trading Company to carry out the logging, so irrespective of any consideration about the efficacy of the logging licence and the Form 2 claimed by the Trust, on the face of this Agreement, all the chiefs representative of the named land holding groups, signed to grant rights (implied to include access and entry onto the groups land) to log “from Arasihanua Irora Territory in West Are’Are, Malaita Province.

For while the document has in brackets at the top commencement (“Section 5 G”), it is evidence of all the matters recited although, in the absence of stamp duty paid, it may not be used to support a claim for breach. Such is not the case, here, but the evidence (Court Book One - 104-–16) is clear, that a right of entry to fell harvest and extract timber for sale from the customary lands listed was presumed by the tribal chiefs named and while Chief John Hero’au has passed away, his status has never been impugned. There is then, ostensible right in the Trust to deal with these customary lands, a right given by the tribal chiefs.

So in common law, by virtue of the Agreement, there would appear an ostensible right in the Trust and the Trust may use the document as a shield against this claim of trespass.

This has not been argued before me, since the 2^nd defendant has proceed along another avenue, but I have pursued this line to seek to show, on the agreed facts, that liability (while not conceded by the 2^nd defendant, Oceania Trading Company for the reasons to be addressed, and while there has been no appearance of the 1^st defendants, although they face a claim exceeding $8 million dollars,) cannot be presumed through the decision of Chetwynd, J., since the issue of rightful entry onto the customary land had not been addressed and was a wholly separate issue to that of the apparent breach of process under the Forest Resource & Timber Utilisation (FRTU) Act found by Justice Chetwynd.

The claimants rely wholly on the implication they seek this court to draw from that earlier decision of Chetwynd J. Where the justice of the case so requires, this court should not avoid the underlying legal flaw in the claimants argument.

The 2^nd defendant, on the other hand, addresses issues going to the right of these claimants to speak for Hanuaraua land in this fashion.

Counsel referred me to an earlier decision of my brother judge Faukona, J.^[5] who said, in part:-

...”In assessing damages for trespass, the major issue still remains to be resolved, is (sic) identification of the three Te’ete’s owned by the claimants and their boundaries...”.

Putting aside the reference to “trespass” the identification of the Te’ete’s remained to be resolved. [I also leave the vexed questions concerning the various assessments done addressing the supposed loss since damages do not arise in these circumstances on the facts found].

It was not until Maina J’s directions on the 14 March 2016 that the Te’ete’s comprising Hanuaraua land were identified and presumably accepted.

For these three named Te’ete’s, Iramou, Wa’anamori and Perahau were earlier referred to in the Arahanimae Council of Chiefs determination (Chiefs decision 1) dated 5 August 2005, where the Chiefs Panel determined:

...” Hanuaraua Arata exclude Perahau Te’ete’e from logging. Oha’ano Te’ete’e to include for logging. Wa’anamori Te’ete’e, half for milling and half for logging. Iramou Te’ete’e half for logging and half for milling”...

(This Chief’s decision was referred to in the submission of Mr. Zama, no objection was taken to its use in that fashion and I am satisfied it is relevant for the determination of these proceedings).

As Mr. Zama claims, the Chiefs did not qualify their determination by reference to these claimants having rights of denial.

The Arahaniumae Council of Chiefs Panel decision dated 21 February 2008 did not address the claimants asserted right to ownerships (since perhaps it would by implication, deny rights in other persons) but rather focussed on the land boundary for the sub-clan within the Hanuaraua land^[6].

In the event, I am satisfied the claimants have rights, with others, to the respective Te’ete’es and “trespass”, envisaged in the common law sense, does not arise in relation to the whole of Hanuaraua land. If it did, then other sub-clan and tribal owners, who have attested to the Land Trust document, may well find themselves liable to pay damages in an amount of 8 million dollars to these particular named claimants. I find that intention bizarre.

What is plain from the Chiefs determinations is that while Hanuaraua land was comprised of five Te’ete’es, whose sub-tribes were responsible for their own portion, there were persons able to speak for those portions when it “comes to any decision concerning major developments”.

It would be seem the Chief Spokesman for Hanuaraua was formally John Hero’au deceased, who entered into that Agreement [with others], to assign the timber rights to the 1^st defendant. But the efficacy of that Agreement has long since been denied by these claimants, although the Council of Chiefs has not denied his authority to deal with the Arasikanua Trust by such assignment of interest. There seems to be no dispute about the standing of other landowner representatives to enter into the Agreement.

For the heads of the Respective Te’ete’e were named in the First Chief’s Decision. They were John Hero’au (Ohano Te’ete’e), Romeo Toisuta (Iramou), John Mahane (Wa’anamori) and Francis Hasiau (Perahau).

The claimants cannot speak for other Te’etes. Joseph Pa’asi conceded Hanuaraua land did not exclusively belong to the claimants, however, the Head of Chief of each Te’ete’e is the Head of each land block.^[7]

That statement rather puts paid to or ends the claim for “Trespass” to Te’ete’e’s of others.

Mr. Zama then, addressed each Te’ete’e in turn for, supported by the Chiefs Decisions regarding the five Te’ete’e’s or sub-tribes making up the entire Hanuaraua land, while the separate chiefs or representatives of the individual Te’ete’e’s had interest in Hanuaraua land, that interest was concurrent with others entitled to the land and could not enable particular individuals of a Te’ete’e to claim “trespass in relation to Hanuaraua land, or any part”.

While the presumption arises that the late head chief of “Hanuaraua tribe” John Hero’au had representative capacity to bind the various Te’ete’e’s making up Hanuaraua, (for he and the other representatives of the “Arasihanua Irora territory” signed the Standard Logging Agreement in favour of the Trust, in October 2003, an act which illustrates a right to speak for the respective lands named, including Hanuaraua), I am not asked to determine whether such presumption is a fact, rather I am asked to accept, on the evidence of the two chief’s hearings that the individual chiefs or representatives, as it were, of the Te’ete’s making up Hanuaraua land have no established right to speak for or power over adjoining te’ete’s. I am satisfied that is the case. I accept Mr. Zama’s argument that any claim for trespass must be confined to the individual claimants particular Te’ete’e land.

He says so far as Perahau Te’ete’e is concerned, no “trespass” has occurred. He relies on the Statement of one of the claimants, Joseph Pa’asi^[8] who confirmed no logging had taken place within Perahau. Alick Savo^[9] also said “in relation to Perahau there was no entry into that part of Hanuaraua and no logging was carried out there”.

Then Mr. Zama points to evidence which suggests confirmation of my acceptance of the fact that individuals had no rights to speak for adjacent Te’ete’e’s. For Alick Savo^[10] says:-

...”It appears very clearly that Pa’asi and Tahunimake (claimants) have purposely attempted to extend the boundary of Perahau Eastward so as to cut in the way of the road route into Iramou, which is a different Te’ete’e...”

There may well have been a boundary dispute, but I accept the dispute arose, if at all, as a consequence of the need to show ingress of the logging road through Perahau [for the purpose of these proceedings]. The separation of Te’ete’e is exhibited as “A5-1” at pages 324, 325 ^[11]. In view of the obvious need to show ingress into Perahau and the conflicting evidence concerning the logging road, I do not accept the evidence of Joseph Pa’asi where he says “I have personally seen that road access has been constructed within the Perahau Te’ete’e”^[12].

I accept Mr Zama’s submission that the claimants have failed to show logging or roads into Perahau Te’ete’e.

Discontinuance of Claim-^[13].

Former claimants Angel Koremae (Uramou), John Makaana (Ohano) and Willie Poiraro (Wa’anamori).

This Notice was filed on the 19 April 2005.

So on the 5 August 2005, some months after the discontinuance by these particular named representatives, the Arahanimae Council of Chief’s (1^st decision)^[14] in an attempt to reach unanimity amongst the Te’ete’e’s, sought expressions of interest, from those responsible for their Te’ete’e, for logging. As I have shown, the Council recorded the particular Te’ete’e’s and their expressed wish for logging or milling.

Oha’ano chose logging while Wa’anamori and Iramou chose half for logging and half for milling. (Perahau was excluded from logging). Remeo Toisuta (Iramou), John Mahare (Wa’anamori) and (the late) John Hero’au (Ohano) were named heads of the respective Te’ete’e’s in the Chief’s decision.

I am satisfied Perahau was not logged. I am not satisfied it was affected by logging roads. In light of the fact of the Chiefs first determination, I am satisfied these particular claimants representing Iramou, Wa’anamori, and Ohano were party to the commonly expressed agreement to log or mill as recorded.

Mr. Zama referred me to the decision of the Chief Justice Palmer in Hilly v Milikada^[15] where he considered the effect of such a notice of discontinuance. While the Chief Justice was obiter of the opinion that actions of members of the same family are estopped by the notice of discontinuance of a family member, from continuing the action, these proceedings before me may be distinguished for the Council of Chiefs has reappointed by recognition, as it were, other representatives of the particular Te’ete’e’s. But as I have found, the plausibility of ownership claimed by these “representing the Hanuaraua Tribe of Waisisi, West Are’Are” is lacking. It is not, then a question of estopped, but rather the failure of these claimants to prove their right of ownership, sufficient to involve the common law claim to “trespass”, for the tort is rather premised on a proven right of ownership or exclusive possession, a right shown to be absent in these claimants.

For were they to succeed, they would be left to recover the judgment moneys from their own kind, those represented landowners of the Arasihanua Land Trust Incorporated.

For the 2^nd defendant has by terms, of the Technology and Marketing Agreement a right of indemnity if it should be proven the presumed right to log assigned by the Trust was absent. If that be the case, again all the landowners of Arasihanua Irora Territory would stand liable for any judgment given in favour of these individual claimants, a bizarre outcome.

I find the Amended Claim, paragraph 4 claiming:-“Damages for trespass in Hanuaraua Customary Land, in particular Iramou Te’ete’e, Wa’anamori Te’ete’e and Perahau Te’ete’e in Hanuaraua Customary Land” has not been made out.

Consequently the claims following, for damages and costs fail also.

The orders of the court are;

1. Proceedings instituted by Further Amended Statement of Claim filed 10 July 2006 are dismissed;
2. The defendants shall have their costs of these proceedings from the claimants.
3. Moneys held in the Solicitors Trust account pending determination of this claim shall be paid into court.
4. Counsel shall submit agreed short orders in relation to any moneys paid into court pursuant to 3 otherwise the court orders after 28 days, in the justice of the case, such moneys shall be paid to the 1^st defendant.
5. Any extant injunctive orders affecting the subject land, Hanuaraua are discharged.
   

__________________
By the Court

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^[1] Arashianua Land Trust v Pa’asi [2007] SBCA14, CA –CAC 22 of 2006 (15 October 2007)
^[2] Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 [9 February 1999] at para 25
^[3] Joseph Pa’asi anors v Arashianua Land Trust Incorporated anors cc.479/2004 Chetwynd J dated 31 January 2012.
3 Simbe v East Choiseul Area Council anors (1999) SBCA9, CA-CAC 9 of 1997 at paragraph 8.
^[4] Simbe abid, paragraph 24,25.
^[5] Judgment given in cc.479 of 2004 dated 29/8/14
^[6] Chiefs decision- Court Book Two-Part 2 Page 405
^[7] Court Book Two-Part 1 Statement of Joseph Pa’asi Page 26
^[8] Court Book Two-Part 1 Page 26
^[9] Court Book Two-Part 2 Page 153
^[10] Abid page 313
^[11] Court Book Two- Part 2
^[12] Court Book Two-Part 1 Page.26 Paragraph 9
^[13] Court Book Two-Part 2 Page. 201,202,203
^[14] Court Book Two-Part 2 Page.163
^[15] (2006) SBHC 142