Kulabule v Liloqula [2017] SBHC 53; HCSI-CC 130 of 2015 (30 November 2017)

CHIEF JUDAH KULABULE -V- RUTH LILOQULA &
& OTHERS, DELTA TIMBER OTHERS
LIMITED (1^st 2^nd Claimant) (Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No. 130 of 2015

Date of Hearing: 17 October 2017
Date of Judgment: 30 November 2017

M. Pitakaka for claimant
K. Ziru for defendant

Application for declaration of right to prevent interference with determined licensee to log.

Brown J:

By application dated 11 December 2012 Delta Timber Limited, addressed to the Commissioner of Forests, the company sought approval to negotiate timber rights over Bakele Customary Land, Choiseul Province. A letter of consent accompanied the application, a consent signed by “principal landowners and trustees” of Bakele customary land. These five persons supporting Delta Timber included 4 named first claimants in these proceedings, one Roland Velo has not been named as a first claimant (nor is he named amongst the defendants).

A Batava Council of chief’s hearings, case number 1/2013, Bakele genealogy and ownership concluded on 13 February 2013 when the chief’s panel determined that Biala is not part of Bakele tribe and owns nothing in Bakele land. And he is no longer part of Bakele tribe.^[1]

The plaintiffs in that hearing included Franklin Papabatu and other named first claimants, here, although none it appears of these defendants in these proceedings, were named in the Council of chiefs matter.

It is a matter of record, however, that the chiefs found certain persons influential in “influencing other persons in the wrong way”. As illustration I set out part of the chiefs reasons^[2]

2. The panel after considering the plaintiff’s statements found out that Sila’s mother married to Bekabekata tribe and her bride price paid for by Bekabekata tribe. This shows that Sila is no longer part of the Bakele tribe but resides only in the land given for her mother’s bride price (LUA BANI) in Bakele land. He (Sila) is the one responsible for the inclusion of Biala in the Bakele Tribe Genealogy.

24. The reason why Amon was called on to join the tribal meeting (Popoloto) of Bakele tribe is because Sila connects them (Biala) to the Ravekana clan genealogy. It is during that tribal meeting that the whole tribes of Bakele confirm that Amon is not part of Bakele tribe.

25. The panel sees that, the defendants witness Mr Jacob Valukana is instrumental in influencing defendants (Amon Kumavole) in the wrong way. Everything that he testifies in his statements is not true when we survey the land.

Following the timber rights hearing at Taro on 25 April 2013 in relation to Delta Timber’s application, the Province by public notice published its determination on 12^th of June 2013. By minutes of the timber rights hearing held at Taro on 25 April 2014^[3] can be seen that one objector Jeppasen Sila is named. That objection may be ignored following the chiefs determination of 13 February 2013 where he was found not to be part (nor right to speak for) of the Bakele tribe. Nevertheless another objector, Billy Savevae is recorded in his presentation to the panel, as requesting a halt to “timber rights of Bakele land” because of a local court appeal case taken by them against the decision of Batava Council of chiefs.

The minutes record;

The document presented by Billy Savevae is the paid the court fees on 24 April 2013 and timber rights hearing on Bakele Land held on 25^th April 2013. To complete the prescribed requirement of the Local Court Act (Cap 19) to qualify for the Jurisdiction of the court, the objector yet to send determination of the chief’s hearing and the unaccepted settlement form LC 4.^[4]

It is apparent that these reasons of the Provincial Executive were written after the timber rights hearing on 25 April 2013. It can be seen however (apart from Jeppesen Sila) Malasa [disputed area for Solomo] and Billy Savevae sought to halt the timber rights hearing. Billy Savevae relied upon a Local Court appeal case he said had been taken against the Batava Council of chiefs decision of 13 February, by relying on his paid court fees on 24 April.

The Choiseul Provincial Executive determination, in accordance with section 8 (3) of the Forest Resource and Timber Utilisation Act dated 25^th of April 2013 favoured Delta Timber’s Application over Bakele customary land, although it is excluded Bani or Bakele (in favour of Jeppesen Sila) and Bali land. The executive further stated that the decision of the Batava Council of chiefs was still valid “as there was no appeal”.

The land boundary was expressed in the minutes to be “from Solomo, Chiropodoko, & Gugurulavata agree [sic] with Bakele.” The fact is at the time of the determination of the relevant “representatives” on 25 April 2013, the right to object to any part of the Provincial Government’s determination arises by virtue of section 10 of the Act, by appeal to the customary land appeal court having jurisdiction in the area. No appeal by these defendants who included amongst their number Billy Savevae and [Isiah] Malasa who were objectors in the timber rights hearing has been made. Both these defendants and others claim standing as members of Solomo tribe.

By Claim filed 13^th of April 2015, the following orders are sought;

1. An order declaring that the Defendants have no standing or rights in law to interfere with the Claimants lawful operations within time of Talevodo portion of the Bakele customary,land blocks 16, covered under Felling License No. A101302 and have trespassed into the Second Claimants concession area;
2. A permanent injunction order restraining the Defendants, their servants, agents, several members of their Solomo tribe which they represent from entering and unlawfully interfering with the Claimants operations anywhere within the Bakele concession area including Talevodo, blocks 16, which the Claimants have exclusive legal rights to operate in under Felling License No. A10423;
3. An order that the Second Claimants shall conduct felling of round logs within Talevodo blocks 16 covered under Felling Licence No. A101302, freely without any unlawful interferences by the Defendants;
4. Indemnity costs
   

My Lord section 10(1) of the FRTUA Cap 40 allows any person aggrieved by the determination of the appropriate government to appeal to the CLAC if they wish to. The Defendants attended the timber rights and raised their objections through Mr. Malasa and the second named Claimant but according to the evidence of Mr. Velo they have failed to appeal against the determination made by the CPE which was against them to the CLAC(W).^[5]

Upon their failure to act within the legislated one (1) month appeal period to protect their interests, they are time barred and bound by the customary boundaries of Bakele customary land which were confirmed by both the Chiefs and CPE and the sworn evidences of Timeas Tikoatu^[6], Silas Siara^[7], Robert Samakavai^[8], Peter Vuquru^[9], Raymond Vapusibatu^[10] and Shem Vaqalo^[11] respectively. The possession of timber rights by the second Claimants from the First Claimants within Bakele customary land which were subject of the timber rights hearing flows out from the First Claimants’ ownership title which the Defendant failed to challenge at the appropriate time.

By statement of case, paragraph 8 the claim by Billy Savevae and [Isiah] Malasa was denied by Shem Vaqalo of Solomo tribe. Shem Vaqalo by sworn statement for the claimants^[12] says;

2. I am a member of our Solomo tribe. My ancestor lived in our Solomo customary land since time immemorial. Their knowledge of our Solomon customary land was passed down from them from one generations to another until the time of our Fathers and at present day us. Consequently we were well versed with our tribal histories, knowledges and customary lands. I have had the benefit of reading through the sworn statement of Ms. Ruth Liloqula filed on 10 September 2015 in response to the sworn statement of Mr. Nolland Velo filed on 10 April 2015. I found that she disputed my knowledge of Solomo tribe. Therefore I was obliged to respond to her unfounded facts to assist this honourable Court.

6. In response to paragraph 23, I say that there is no point responding when it is clear that they took half of the Bakele land from Nukiki to Vuuala. Even it contradicts my knowledge of Solomo land and by Bakele. The Bakele tribe have already demarcated it in their map and their objections were over ruled by the Choiseul Provincial Executive. Despite that, they have failed to appeal against the determination and have slept on their rights.

7. In response to paragraph 24 I say that I was well versed with the customary land of Solomo than Ms. Liloqula’s because my ancestors and grandparents never left Solomo unlike Ms. Liloqula’s ancestors and grandparents who were taken as slaves to Vella La Vella and have just returned recently.

8. I say that I felt sorry for Ms. Liloqula and her supporters because they went and obtain traditional knowledges from other tribes, hence misleading the people and this court with traditional issues. They should have humbled themselves and come to me so that I tell them the truth about Solomo land and other tribal matters.

9. I say that this court must ignore her statements.

The disputed land may be described as Talevodo Block 16, by paragraph 4 of his statement the provincial government would appear to have accepted the Bakele tribes map presented at the timber rights hearing, and stated in its determination, boundaries of the Bakele land reliant on that map. No appeal to the CLAC has been made over that disputed land, blocks 16 for instance. It is also apparent Shem Vaqalo denies Ruth Liloqula’s right to speak for the Solomo tribe for she does not have custom knowledge for the reasons set out in his statement. This conflict is one of such a nature as to satisfy me, on the balance of probabilities, that the defendant, Ruth Liloqula’s claim in the absence of particular findings in corroboration by a proper authority such as a custom chiefs Council, is but assertion as to her rights. By statement of case paragraph 9, Billy Savevae’s objection at the timber rights hearing was stated to have been rejected by the Province” because it has failed to comply with the mandatory requirements of the local court act”.

The Act section 12 (1) limits jurisdiction of the local court to hear disputes over a customary land. The court need be satisfied of the matters set out in section 12[1][a]. By section 12[2] & 12[3];

It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the schedule, containing the required particulars and signed by two or more of the chiefs during the dispute had been referred.

3. In addition to producing a certificate pursuant to subsection (2), the party referring the dispute to the local court shall lodge with the local court a written statement setting out-(a) the extent to which the decision made by the chiefs is not acceptable; and (b) the reasons for not accepting the decision.

I am not satisfied mistake has been shown in the Case, paragraph 9, for the defendants had not produced evidence which corresponds with the requirements of this section or any determination of the local court affecting the particular part of blocks 16 or any other Bakele land within the boundary described by the Province in its Form 2.

On 15 August 2013 a Form 4 agreement (grant of timber rights by the representatives) was executed in favour of the second claimant. As a consequence on 29 August 2013 the Province executed the Form 3 approval and on 9 September 2013 the Commissioner of Forests issue felling licence number A101302 covering Bakele customary land in favour of the second claimant.

The harvesting plan including block 16 was approved by the Commissioner. There would appear to be no issue with the fact that block 16 is within Bakele land, the issue is whether these defendants may lay claim to it. By defence^[13] these paragraphs deal with the standing of these defendants to some extent especially those three named Billy Savevae, Isiah Malasa and Jeffeson Sila.

6. As at paragraph 6, the defendants confirm that a timber rights hearing was conducted by the Choiseul Provincial Government but maintain that no matter was provided by the claimants to the hearing as to the areas covered under the application.
7. As to paragraph 7, the defendants deny that they were represented by Billy Savevae as he attended the timber rights hearing at the bidding of Amon Kumavole of Bakele as Amon Kumavole was unable to attend the hearing. Billy Savevae’s attendance was to remind the timber rights hearing that a number of issues are still going through various processes and that these issues needed to be sorted out first within the Bakele tribe.
8. The Defendants state that three objectors were present at the timber rights hearing; they were Jefferson Sila, Isaiah Malasa and Billy Savevae. The Defendants contend that despite the objectors’ urging, no map was tendered. As a result, the objectors were unable to see the areas covered under the application.
9. The defendants further state that Solomo tribe was represented by Isaiah Malasa at the timber rights hearing as an objector because Solomo shared land boundaries with Bakele tribe. In the absence of any map showed during the hearing, Isaiah Malasa showed the sketch map of Solomo land with its tamboo sites, old villages and other important landmarks. The Defendants contend that most of the discussion during the timber rights hearing focused on genealogy.
12. As to paragraph 9, the defendants state that Billy Savevae appealed against the decision of the Batava Council of Chiefs on behalf of Amon Kumavole and the Ravekana clan of Bakele and not on behalf of the Solomo tribe.

By reading the earlier chiefs decision^[14] I accept there was evidence of disputation amongst the tribes, Solomo, Chiropodoko and Bakele and I am not satisfied Ruth Liloqula, Billy Savevae or Isaiah Malasa may be accepted as spokes persons for the Solomo tribe especially when I see the Defence.

Defence: 19. As to paragraph 18, the defendants maintain that the context of village life is such that when one goes out into the bush, one carries knives. The defendants further maintain that they were not threatening. The defendants further state that the Solomo tribe has verbally requested the Bakele tribe several times to walk the boundary to no avail. In February 2015, Solomo tribe sent Bakele tribe a letter requesting to walk the boundary with no response.

By Claim, clause 1, the claimants seek a declaration that the defendants have no standing or rights in law to interfere with the claimants lawful operations within Talavodo land, Block 16. Such claim may not rely on the provincial councils determination which is neither final or binding in effect^[15].

But the defendants have shown no right by chiefs earlier finding, local court award or determination of a CLAC and have failed to pursue any right of appeal allowed by the Forest Resource and Timber Utilisation Act, within the time allowed.

A declaration in these circumstances will amount to a constitutive legal act and will give to existing legal relations the status of a res judicata.

The scope to make a declaration under the rules allows this court to ascertain and determine the rights of parties in these proceedings. It is plain the claimants rely on the doctrine of omnia praesemuntur rite esse acta, or regularity of process under the FR & TU Act. That process has not been shown to be wrong. The defendants have failed to make a case in denial, although much obfuscation abounds in the materials in the Court Book. The power to make such a declaration is discretionary, I am satisfied however I may make the declaration for proper argument has been afforded the court on the issue.^[16]

I accordingly make orders in terms of paragraphs 1, 2, 3, and 5 of the Claim. The interlocutory injunctive order by Maina J given ex parte (by consent) [sic] perfected 27 April 2015 is discharged for it is superseded by this permanent injunction. I attach a penal notice to the second order, above.

__________________
BROWN J

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^[1] court book at 20
^[2] court book at 17
^[3] court book 25- 28, 29
^[4] court book 28
^[5] Court book, page115
^[6] Ibid, pages 194-196
^[7] Ibid, pages 197-199
^[8] Ibid, pages 200-202
^[9] Ibid, pages 206-208
^[10] Ibid, pages 209-2011
^[11] Ibid, pages 212-215
^[12] court book 212, 213, 214
^[13] Defence (Rule 5. 11) filed 27th of May 2015; court book page 164- 167
^[14] court book 19 paragraphs 24, 25
^[15] Simbe v East Choiseul Area Council (1999) SBCA 9
^[16] Helzer v Dept. of Health and Social Security (1977) 3 All.E.R. 444 per Megarry V-C at 451