Pone v Anasia Corporation Ltd [2016] SBHC 3; HCSI-CC 126 of 2009 (20 January 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS.

(Faukona, PJ)

CIVIL CASE NO. 126 OF 2009
CIVIL CASE NO. 167 OF 2009

CIVIL CASE NO. 126 OF 2009

BETWEEN:

JOSIAH PONE and NICOLAS MAELANA
Claimant

AND:

ANASIA CORPORATION LIMITED
First Defendant

AND:

RITETRADE PACIFIC LIMITED
Second Defendant

CIVIL CASE NO.167 OF 2009

BETWEEN:

OLIVER GILBERT
Claimant

AND:

SOLOMON ISLANDS RESOURCES LIMITED
First Defendant

AND:

ANASIA CORPORATION LIMITED

Second Defendant

Date of Hearing: 9th March 2014, 11th March 2014, 13th March 2015,
16th February 2015 and 10th November 2015.

Date of Ruling: 20th January 2016.

Mr W. Rano for the Claimants in CC No. 126 of 2009
Mr A. Hou for the Claimant in CC No. 167 of 2009
Mr J. Keniapisia for the Defendants in both Cases.

Faukona PJ:

JUDGMENT.

Introduction

1. Litigation in the current cases emanates from the cause and effects of logging operations. The two cases were consolidated because they deal with the same issues derive from the same cause of action on the same customary land. Notable, common issues often encountered in such a branded development are claims of customary land ownership, claim for trespasses and damages, issue of development consent, environmental issues, and of course challenges to the timber rights processes and issuant of felling licence.

2. In this case, Anasia Corporation Limited is a Company keen to indulge in forest resources development. Subsequently, it acquired a felling licence No. A10704 to conduct logging operations in a concession area that covered four customary lands namely; Roghasi, Kolomamata, Soflata and Titiligama. All the customary lands are located within Gao District in Isabel Province.

3. Anasia Corporation Limited then contracted Ritetrade Pacific Limited to conduct logging operations on the concession lands. Both company then engaged Solomon Islands Resources Limited to carry out the survey which consisted of mapping the concession areas to where roads should be constructed and where logging should take place.

4. Correspondingly, it was attested by the two distinctive claims affirming that both logging companies landed equipment and machineries at the same time on the same spot that is at Taname'e point or Raja coast, within the customary land the subject of this dispute.

5. The Claimants in Civil Case No. 126 of 2009 represent the Limapogu and Hovi land owning group, also known as Vihuvunagi clan of Gao District, Isabel Province.

6. The boundaries of Limapogu customary land runs from Beakasa to Hurukati to Hoa to Saela to Tanapiro and the back to Tanagamu. The boundaries are indicated in blue on a map attached. The boundaries of Hovi customary land in brief run from Taname'e to Hovi stream to Titiligama stream to Farihegna stream to Poto and back to Taname'e – see full boundaries describe in paragraph 33.

7. The Claimants also claim ownership of Rarai customary land located within Titiligama whose boundaries run from Farihagna to the mouth of Kolopoipoi stream to Khikulu valley then to Polilagu (end of Rarai ridge) then along Titiligama stream then back to Farihagna, situated at Gao District, Isabel Province. A dispute over this particular land had been referred to the Fituphogu House of Chiefs in Isabel Province.

8. The Claimants claim of ownership over Limapogu and Hovi customary lands were by virtue of the decisions of:

(a). Gao House of Chiefs decision of 2nd January 1992,

(b). Local Court decision on 23rd April 1995,

(c). Gao House of Chiefs decision on 1st March 1999,

(d). Isabel Local Court decision in CC No. 8 of 1964 dated 2nd November 1964 and;

(e). Isabel Local Court decision in CC No. 4 of 1965 dated 2nd April 1965.

9. The Claimant in Civil Case No. 167 of 2009 claims as being a member of Tavia tribe of Hovi village of Gao District, who owns Hovi customary land.

10. The Claimant seems to advocate that he had not been indulged in any dispute concerning the subject land. Hence his right of ownership has not been questioned. However, on 9th March 2009, the Tataba Ward Chiefs of Gao District declared him as true and rightful owner and custodian of Hovi land. Besides that, the Claimant's traditional payment and ownership of the land was first marked with a ceremony held on 15th June 1958, and later another ceremony known as "diklo" which was conducted and held on 1st march, 1984 at Hovi village.

11. The Defendants are saying that the logging operations stated in Kolomamata customary land where the log pond was located on a registered land as PN 131-002-3 owned by one Mr William Fititei.

12. Roads were constructed commencing at the log pond moving inland along the poto ridge then branched out with one turning left towards Titiligama customary land and the other went up towards Roghasi customary land.

13. They are also saying the land called Hovi is not part of the concession area and was not located within the concession areas as well. The land now claimed as Hovi customary land is in fact Gagada customary land which is not part of the concession area. (Those lands are well identified in a colour map tended to Court).

The Issues:

14. With the competing claims by the Claimants in both cases, the question to pose is who really has the right of ownership over Hovi customary land? The second issue concern the actual location and boundaries of Hovi customary land, and whether the defendants had trespassed into Hovi customary land or not.

The Claim in CC No. 126 of 2009:

15. Both Claimants in the above case represent Limapogu and Hovi land owning groups called Vihuvunagi clan, who at all material time owners and proprietors of Limapogu and Hovi customary lands. The land Limapogu does not form part and partial of this dispute. From observing the maps, it is located quite remote from the centre where the dispute concentrated. From pleadings and submissions the dispute focusses on Hovi customary land and its boundaries. The Claimants refer to the land as indicated in yellow on a map they have produced in Court.

16. It is of paramount value to examine the decisions of various institutions conferred with power to determine the issue of land ownership and land boundaries. In this manner it will assist the Court verifies the true ownship of the land and its boundaries and whether there had been any trespass at all.

17. Inclusive to that is a close examination of the traditional payment transactions which the claim in CC No. 126 of 2009 premise. This is to ascertain its truth and to verify its impact and prevalent value as oppose to the above decisions.

18. From evidence available, it is apparent that the question of ownership of Limapogu land is not an issue since the Defendants felling licence did not cover Limapogu land and they have no intention of entering Limapogu land to carrying out any logging operations therein.

Local Court Case: CC No. 8 of 1964 and CC No. 4 of 1965:

19. The claim in these cases comprises the same grounds upon which the claim in CC No. 126 of 2009 was grounded. They were relied on as evidence of determination by the Local Court which was in favour of Mr Patterson Tada, concerning hove customary land. Mr Tada as revealed during trial is of Mariu Vihuvunagi clan (otherwise known as Nakremifunei or Mariu eagle).

20. The substance of the two cases was not clear. However, there was a hint by reference to Sections 115 (k) and (b) which I guess from the Penal Code. Section 115 is the same as Section 121 of the current Penal Code. That section is part of Part X11 which basically focussed on offences in relation to the administration of justice. Affirmation can be extracted from S121 (b) of the Penal Code which deals with failure of a person to attend having been summoned to give evidence in a judicial proceeding. That should correspond to the second case CC no. 4 of 1965.

21. From the revelations, a conclusion can be drawn that both cases did not deal with the issue of ownership of land but dealt with criminal activities related to land. It would be of great assistant to the Court if full court proceedings were tendered to the Court to ascertain exactly what were the real issues dealt with by the Local Court at that time. With a brief extract from the Court record book, does not provide sufficient evidence that can be relied on to ascertain rights of ownership by the Claimants. In the absence of such, it would be difficult to affirm whether Mr Tada was determined to have actually owned Hovi customary land. If determination was such, then record would have revealed evidence related to ownership of Hovi land itself with well documented boundaries. A Local Court dealing with customary land cannot determined the ownership in the absence of customary evidence associated with the land, boundaries of the land and other traditional evidence and social activities connected to the land.

22. In both cases, the Local Court said that Tada owned Hovi customary land without any basis in evidence, reasons, demarcation of boundaries and location of the land. In my personal assessment it would be unsafe to rely on the two cases as evidence of determinations of ownership of Hovi customary land.

23. The comfort, as it appears, derives from the extracts of the Court record book. Upon analysis it is in line with the submissions made by the Counsel for the Defendants in CC No. 126 of 2009, at paragraph 10 of his submissions. That ownership issue cannot be ascertained where a survey was not done. In fact as it appears from the record, it was not a land dispute but a criminal case related to land issue. It could be an issue that prompted a land dispute. Meantime that cannot be affirmed because no full record of Court proceedings is disclosed.

24. Assuredly, the Local Court Cases do not reflect any convincing evidence of ownership. Despite that, other decisions rely on by the Claimants may perhaps make any difference, we will explore further.

25. The Gao House of Chiefs determination on 2nd January 1992 was that Mr Nelson Saina was a member of Posomongo clan and originally from Maringe District of Isabel Province. The same decision was proclaimed by the Local Court on 23rd April 1995. And again repeated by the Gao House of Chiefs decision on 1st March 1999.

26. The issue that was placed before those tribunal and Court for consideration was whether Mr Nelson Saina was a member of Vihuvunangi clan or not? The decisions concluded with the same tune and sang the same song, that Mr Nelson Saina was not a member of Vihuvunagi clan. Notably, the Gao House of Chiefs decisions of 1st March 1999 had mentioned that Mr Saina was a foreigner to Limapogu land. In addition, the Local Court decision that was undated but certified as true copy on 19th February 2002, eventually decided the ownership of Limagogu customary land was vested on Fr. Jasper Huahuati. The problem truly encountered is that Limopogu customary land has not been an issue in this case. It has neither being part and partial of the concession. The Defendants were not grantors nor were they wish to conduct logging operation on that land at all. They have no interest in it.

27. Ultimately, those decisions had never touched on the ownership of Hovi customary land and its boundaries. The central focus of this case confine to Hovi land where it was claimed that the rights of the Claimants had been violated by illegal harvesting of forests and construction of logging road without their consent.

28.. Taking those decisions as basis of evidence relied on by the Claimants in CC No. 126 of 2009, provide no assistant at all to the Court. In other words, the decisions were in respect of a different land not being as issue in this case and hence cannot be figuratively implied that the claimants own Hovi customary land. Hovi customary land is a separate land with well demarcated boundaries from Limopogu customary land which was differently located and has its own boundaries. The evidence from those decisions are not convincing that the Claimants own Hovi customary land.

29. It definitely appears that the decisions of which the Claimants in CC No. 126 of 2009 relies on, has not in any way support or in favour of their claim. In search of supporting evidence I will now turn to the Fitupogu House of Chief decision dated 15th September 2009.

30. From material available the Fitupogu House of Chiefs had conducted two land dispute cases. On the first part, proceeding was concerned Titiligama customary land, and the second part concerned hovi (gagada) customary land.

31. In both cases the Chiefs determined that Mariu Eagle clan (Nakremifunei) were the primary landowners of Hovi and Tililigama customary lands. The boundaries of both lands were well documented in the record of the Chiefs hearing. In respect of Hovi land the boundary starts from mouth of Hovi stream and then runs along the sea coast to Taname'e (Pahiju) point then to Poto stream then to Lefe stream, and then to Titiligama stream, and then to Ovi Tatahi stream, then it runs straight across to Orongo then to the mouth of Hovi stream. These boundary marks bounded the Hovi customary land which the Claimants' claim.

32. In comparing the Chiefs determined boundaries to that of which the Claimants claim and reflected in paragraph (10) of their submissions, there appears to be no mistake in the boundary marks. Practically, if the marks be translated into a map; the map submitted by the Claimants with indication of hovi land in yellow colour, almost coincided with the names given as boundaries of Hovi customary land. I have no doubt that hovi customary land located in the map and coloured yellow is definitely Hovi customary land.

33. Hovi customary land as identified and located by a coloured map submitted by the Defendants is absolutely out of context. It was located some distance away, not even near to the eastern boundary agreed to by the Fitupogu House of Chiefs. The same applies to gagada customary land. It would appear the location of hovi, gagada and Titiligama lands are either wrong or overlapped, in particular into Kolomamata or Hovi lands. This perhaps is the architectural intention by the Defendants to purposely extend the boundary and to avoid any claim for trespass, at the same time advance their agenda.

Claim in Civil case No. 167 of 2009:

34. The Claimant's claim of ownership in the above civil suit focussed on hovi customary land alone. The claim of ownership was made possible by virtue of Tataba Ward Chiefs declaration on 9th March 2009. In addition there were claims of traditional payments which were marked with ceremonies on 15th June 1958 and on 1st March 1984. The ceremony in 1984 was the diklo.

35. The Hovi customary land that was subject to traditional purchase transactions had the same boundaries as claim by the Claimant in CC No. 126 of 2009. The issue of boundary is no longer a contentious one. The issue which is left to be determined is one of whether the traditional purchase granted rights of ownership prevalent than the right inherited through ancestral linage or rights acquired by way of discovery and of which was inherited through genealogical inheritance.

36. At first instance, let me deal with the Chiefs declaration of ownership on 9th March, 2009. To declare someone has the right of ownership over customary land, whether done at a public ceremony or by way of statutory declaration instrument, has no valid conferment of rights. The Local Court Act upholds that only the Chiefs after landownership dispute had been referred to it, can pronounce or declare after hearing, a person, a clan or a tribe has right of ownership over customary land. Anything beyond or apart from that are invalid and a mere assertion of rights.

37. The second ground upon which the Claimant relies on is through traditional payments. There were three payments. One was done on 15 June 1958. The second one was done on an unknown date and the third one was done on 1st March 1984 involving Oliver Gilbert purchasing gagada (hovi) land from Mr Oliver Kokou.

38. Being as it may, the anomaly noted is that though those facts are significantly valuable attributed to the issue of ownership, they were not pleaded in the claim or in the statement of case, or in the application for default judgment, or in the application for interim orders, or in any sworn statement filed by the Claimant (Mr Oliver Gilbert). The important of such facts should accord priority in the claim. However, they were disclosed at the disclosure stage as independent material evidence. With respect, I am of the opinion that such facts should be accorded priority, if not, the first lines in the formal claim. They should be rated as directly associated with the manner in which the Claimant had acquired rights of ownership to the land. This should take us to the next subheading.

Competing Claims.

39. The fact that there is nothing in the form of response in reply, either in defence or by way of sworn statement attested to its truthfulness. The only response in reference can be identified in the final submissions of the Claimants in CC No. 126 of 2009, at paragraph 10. The paragraph stated, "Mr Oliver Gilbert claims Hovi land by virtue of purchase and transfer made in 1953, 1958, and 1982; none of those related to proof of ownership. Mr Ellison Kokou who claims to own the land is the same person who lost against Mr Tada in Civil Case No. 8 of 1964 and CC No. 4 of 1965. The fact that Mr Oliver Meilau (son of Ellison Kokou) was not the owner was also confirmed by Acquisition Officer in 1971/1972.

40. The argument advances by the Counsel for the Claimants in Civil Case No. 126 of 2009 in the precedent paragraph appear to be valid. Although there was no documentation of the records available, does not mean there were no Local Court Cases in 1964 and 1965. There may be cases conducted, but because of lack of availability of records and no formal certification, therefore diminish the strength of the facts in those documents.

41. In any event, if they are not of any assistance, the valid and acceptable fact which stands out more than anything is the fact that Mr Oliver Gilbert was a witness for the Defendants in the second case concerning Gagada (hovi) customary land, which was heard by the Fitupoga House of Chiefs from 27th July – 30th July 2009 and which the Claimants in Civil Case No. 126 of 2009 had won.

42. The weakness in the Claimant's case in CC No. 167 of 2009 was realized by the former Counsel representing the Defendants and the current Counsel Mr Hou. The former Counsel realising the weakness informed the current counsel per his letter dated 28th September 2010 (Page 145) of Court Book, and expressed in paragraph 3 – that Fitupogu House of Chiefs decision had recorded that your client was a witness in the hearing and had stated that his group have been residing in Hovi land with the permission of Pone's group. That will be evidence against your client to show that your client and his tribe do not own Hovi land.

43. With that realization the self-admission by Mr Oliver Gilbert therefore render his claim of ownership of Hovi land at stake. He could have exposed his right of ownership over Hovi land at the Chiefs hearing; nothing ever stopped him doing so, but he chooses not to. In the current case, he has diverted from his stand in the Chiefs' hearing, and advance a claim of ownership by virtue of purchase and traditional transfer; an approach in different from his evidence at the Chiefs' hearing.

44. The only option now for him and others is to file a referral case with the Local Court. I noted on page 293 exhibit marked "F" attached to Mr Simata's sworn statement filed on 1st June 2010, was a letter intended to lodge a referral case with the Local Court. Whether that case was formally filed or not, but steps had been taken to file a referral case. Noted that the intended referral was supposed to be filed on behalf of the Defendants.

45. For Mr Oliver Gilbert, there was no evidence indicated he had filed any case with the Local Court. He still has the privilege to do so. In whatever course, the paramount interest of the Claimants in CC No. 167 of 2009 was for trespass and damages to land and forest following proof of ownership. Whilst a referral is still pending in the appropriate local court, the issue of trespass and damages cannot be determined at this stage, it would be in my view premature.

Conclusion:

46. It has now transpired that the Fitapogu House of Chiefs had determined the ownership of Titiligama (Rarai) customary land and Hovi customary land as owned by Mariu Eagle clan (Nakremifunei) represented by the Claimants in CC No. 126 of 2009 (that is Mr Pone and Mr Maelana).

47. The boundaries of the two customary lands are well defined by the Chiefs in their determination. The same boundaries are presented to this Court.

48. The only party that had intended or may have filed a referral case against the Chiefs' determination are the Defendants. The Claimant in CC No. 167 of 2009 Mr Oliver Gilbert had not filed any referral case. That depend very much if he wishes to advance his claim further.

49. With the expository of the issues argued before this Court, the fact that a Local Court case may have been pending, if not must immediately and properly formally filed. With that, the way forward is to stay the proceedings awaiting the Local Court determining the issue of ownership. After the Local Court has determined the referral case, then the case be referred back to this court for final judgment.

Orders:

1. Stay proceedings awaiting Local Court determining the case before it.

2. If Mr Simata has not fully and formally filed a referral case yet, that must be done within two weeks from the date of receipt of this judgment.

3. All interlocutory orders continue remain on foot.

4. Cost incidental to this hearing be paid to Claimants in CC No. 126 of 2009 by the Defendants and the Claimant in CC No. 167 of 2009 at 75%.

The Court.