Asingera v Irara [2017] SBHC 143; HCSI-CC 108 of 2003 (17 February 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case Number: 108 of 2003

BETWEEN: ASKELON ASINGERA - 1^st Claimant

AROSI VISION LINK SERVICES - 2^nd Claimant

BULACAN INTERNATIONAL (SI) - 3^rd Claimant
COMPANY LIMITED

AND: PETER IRARA -1^st Defendant

GOLDEN GISA - 2^nd Defendant

ARAM PWARONGO -3^rd Defendant

AGRIPPA MONO - 4^th Defendant

Date of Hearing: 18 November 2016
Date of Judgement: 17 February 2017

Mr. R. Kingmele for claimants
Mr. G. Fa’aitoa for defendants

Hearing on preliminary issues pursuant to Rule 12.11

Brown J:

A writ of summons instituted under the superseded Rules of Court was issued on the 14 May 2003 by these plaintiffs seeking declarations confirming the validity of a particular timber felling licence covering various lands in Wards 5 and 6 of Arosi , Makira Province. The Licence is said to
be an extension given on the 19 December 2002 by the Commissioner of Forests and is claimed to cover Hanengai land. The plaintiffs, upon the courts declarations, aforesaid, also seek permanent injunctions stopping these defendants from interfering with the logging operations.

Pleadings by way of amended defence and counter claim following by a reply to the amended Defence and a defence to the counter claim closed on the 12 November 2008.

In November 2011, it would seem the defendants’ application to dismiss the proceedings pursuant to R.9.13 of the current Rules (default by claimant – dismissal of proceedings) was dismissed but the alternate application, seeking a determination on a question of law was fixed for hearing in 2012. As a consequence, a list of preliminary issues for determination were agreed by the parties, a court book prepared with a bundles of agreed documents, a statement of agreed facts filed and both the claimants and defendants written submissions relating to the preliminary issues for determination were also filed.

There has been a regrettable delay in addressing the preliminary issues. On the 18 November last counsel accepted the court suggestion that the material previously filed in relation to the issues with the written submissions, be read, and that this court rule on the preliminary issues. The court may deal with argument in this fashion under R. 12.11.

This court will accordingly address these preliminary issues.

“1. a. was the Arosi Local Court decision of 19 April 1996 binding on the defendants?

b. If so, was the issue res judicata in so far as the 4^th defendant was concerned?

2. Given the fact that there was no appeal by the Defendants against the determination of the Makira Provincial Executive, what was the states of the decision of Atosi II Council of Chiefs made on 24 January 2005?”

The agreed documents^[1] include a copy of the Arosi Local Court decision dated 19 April 1996, the Logging Licence A10224, the Makira Provincial Executive Determination, the Timber Rights agreement and the Arosi II Council of Chiefs decision of the 24 January 2005. As well, a High Court ruling on leave to file a defence out of time given by our Chief Justice, (Palmer J as he then was) on the 17 September 2003 was advanced for inclusion in the Court Book. The proceedings, cc 108 of 2003 were instituted by Askelon Asinigera and Arosi Vision Link Services and Bulacan International (SI) Co Ltd – V- Peter Irara and Golden Gisa and Aram Pwarongo and Agripa Mono, the same parties in these proceedings now before the court.
Whilst the originating claim is not apparent from the judgement, (for the issue for consideration was the leave question), the customary land apparently in dispute was Hanengai land, for there appears to have seen an underlying argument regarding ownership.^[2]

The decision of the Arosi Local Court (dated 19 April 1996) (“the decision”) concerned Maetawa/Manawai land. The plaintiffs were Askelon Asingera and Harry Ebasitoro, the defendants Sam Berry and Reuben Krara. The judgement recited that, “the court is aware that this same case has been through chiefs’ settlement three times. The first hearing was between Sam Berry and Irara-v-Asingera and Ebasitoro, which the chiefs decision was in favour of Asingera and Ebasitoro.
The second case is between Alwin Aho – v- Asingera and Easitoro and the decision of chiefs also in favour of Asingera and Ebasistoro.
Thirdly Sam Berry and Rubeen Irara again –v-Ebasitoro and Asingera, this was on the unknown date in September 1995 and the chiefs’ decision says both parties have equal rights on the land”.

Later in the judgment the Local Court explained why it entertained the appeal.
“The plaintiffs in this case should not accept the chiefs to rehear the case the second time likewise the third time before appealing to the Local Court. Because he accepted those hearings, this is where confusion crept in and the chief gave their wrong decision which aggrieved the plaintiff to lodged his appeal to the Local Court.”
The Local Court relied upon the Local Courts (Amendment) Act 1985, where local court jurisdiction to hear customary land disputes was limited to the circumstances where the parties had referred the dispute to the chiefs and there had been an unaccepted decision subsequently appealed to the Local Court.^[3]

I am satisfied the Local Court had accepted jurisdiction to enquire into and re determine the 3^rd decision of the chiefs in September 1995 for that decision, “both parties have equal rights on the land,” was unaccepted to the plaintiffs, Askelon Asingera and Harry Ebasitoro.

The plaintiff’s by their counsels written submission before me say the decision is binding on the defendants and accordingly the defendants are estopped from asserting otherwise.

In Majoria –v-Jino^[4] the Court of Appeal held that, “to make out estoppel per rem judicatam or cause of action estopped, it is necessary to show that the earlier judgment relied on was a final judgment and that between the former and the present litigation there is identify of parties and of subject matter or “ cause of action”.

The claimants rely on the 1996 decision as complete estopped to this action. They say it is a final judgement in the sense understood by the Appeal Court in Jino’s case. For the parties are in essence, the same [for they are issue of the earlier litigants or related through clan structure ] and the disputed land is the same. Those two questions then, remain to be considered in the light of the statement of case. [Any right of appeal from the local exercising jurisdiction under S. 13(d) of the Local Courts Act (Arosi Local Court Decision of 1996) pursuant to S. 256 of the Land and Titles Act has long since expired.]

For the plaintiffs “statement of claims” at clause 1 pleads;- “1. The first plaintiff is the customary owner of Hanengai land awarded by the Arosi Local Court dated 19 April 1996.”
By amended Defence, the defendants (while denying the decision was binding on them) denied the correctness of the boundary of Hanengai land, for that Hananagi land did not extend over the Hanengai mountain to include Maetawa land.

The difficulty the court has, is attempting to relate Hanengai land used by the plaintiffs in their statement of claim with the land description in the decision. For the Local Court, while referring to Manawai land (which I accept as Hangengai) went to some trouble to describe the boundaries of the customary land claimed by these parties before the Local Court.

Using the place names in the earlier decision, I have sought by stylistic manner to draw the boundaries of the land claimed by the plaintiffs (a) the defendant (b) and the land found by the Local Court to which the disputing parties were in fact entitled (c).
Map 1

Manawai River Source Gaonaitarairuga Maetawa Manawai River Mouth River Mouth South Coast Daurarite Passage (Reef)

Map2

Manawai River Source Roho Wmanihaaro Manawai River Mouth River Mouth South Coast Daurarite Passage (Reef)

Map 3

Manawai River Source Roho Gaonaitarairuga Wabu Maetawa Manawai River Mouth Heranigau River Mouth South Coast Daurarite Passage (Reef)

The drawings are wholly stylistic, no distances, contour lines or topographical features are shown (apart from those named by the Local Court).
The Local Court decision says, at 1, “the plaintiff will now have the right over the plot of land started from Maetawa stream mouth and followed up stream to the crest of hill ended at Roho and followed down the crest of hill which at Wabu. From Wabu the boundary runs through Henranigau village which ends at the Dauarite passage and follow the west coast which ended at Maetawa stream mouth again”. {see 3 above}. The defendants were awarded the land (to the right of the plaintiffs, looking at the sketch plan) shown by the quadrilateral to the east of the plaintiffs land. The difficulty is relating the land determined by the Local Court to be that of the plaintiffs with that land covered by the logging licence.

The logging Licence A 10224, more particularly the Commissioner of Forests letter of extension dated 19 December 2002 to Arosi Vision Link Services Ltd,^[5] includes the names of customary lands in the Licence and has amongst them, Roho, Hanengai and Wabu, names corresponding with names used in the decision. At 12 is a copy map “2003 indicative Harvesting for Warang, Roho, Hanengai, Taraitete and Harerau, Arosi II, Makira” etc, scale 1:10,000, with a marked rough circle over land with the words “Hanengai land” type written on the map, apparent under the circle.

Since the reproduction is so poor and while “Heranigau” can be read with “Maetawa” to the west apparently on coast line, I am not willing to accept the map as supportive of the plaintiff’s claim to that land awarded them by decision of the Local Court. Whether the map predates or postdates the decision is not apparent, not is better reconciliation to be achieved by looking at the sketch map at 13.

The timber rights agreement between the company and the trustees so found able to treat for the sale of the timber rights of the landowners refers to appendix A as showing the customary land affected by the agreement, a plan edged red, scale 1:50,000, yet appendix A and the plans are absent.^[6]

I cannot, on the material before me, then, opine on the first Preliminary issue for the evidence necessary to satisfy me the disputed land in the case before me may, by its boundaries, accepted to be that land afforded these plaintiffs by that earlier Local Court decision, is lacking in detail. For the Court of Appeal has made plain that the existence of a valid timber rights agreement is an dispensable pre-requisite of a valid (felling) licence^[7]. And where there is absence of land description ( relied upon by the plaintiffs as forming part of the Local Court decision) in the timber rights agreement, I am not in a position to say that, in terms of the ratio in Jino’s case the Arosi Local Court decision of 19 April 1996, is binding on the defendants.

In so far as the 2^nd question is concerned, the court is satisfied in the absence of appeal, the defendants are bound by the earlier decision if it deals with the same material facts and would be estopped from asserting otherwise.
The claim then is listed for further directions on Friday 3 March at 1:30 pm for one hour.

__________________
BROWN J

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^[1] R.12.3- documents deemed to be in evidence and need not be proved
^[2] HCSI-CC no. 108/2003

^[3] Local Courts (Amendment) Act 1985, S.8 D,E
^[4] [2007] SBCA 20; CA-CAC 36 of 2006 [1 November 2007]
^[5] Bundle of Appeal Documents, 11,12 & 13
^[6] Bundle of Agreed Document, 22-33
^[7] Simbe v East Choiseul (1999) SICA9, CA-CAC 8 of 1997, paragraph 16 of judgment.