Ri'imana v Mega Enterprises Shem Iniomea Ltd [2017] SBHC 73; HCSI-CC 18 of 2017 (10 October 2017)

DANIEL RIIMANA & -V- MEGA ENTERPRISES SHEM INIOMEA LIMITED (1^st Defendant) &
(Claimants) BUSHMAN ENTERPRISE (2^nd Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Civil Case No. 18 of 2017

Date of Hearing: 12 May 2017
Date of Ruling: 10 October 2017

Tagini for the claimants
Lidimani for both defendants

Brown J:

Application for interlocutory injunction preventing logging in West Kwara’ae, Malaita Province

An application for ex parte orders preventing logging on Tolokwaso customary land by these defendants on the claim of these two individual claimants representing themselves and the Tolokwaso customary land owning group was refused on 20 February 2017. Reasons for refusal were that no suggestion was apparent to show the defendants could not be given notice within a reasonable time nor that the claim was of such nature to warrant an immediate order. On 17 March the return date for the urgent applications hearing interparty, the matter was stood over to 28 April when again the matter was adjourned to 12 May for hearing.

Factual circumstances were admittedly different on the ground when the claimant’s lawyer, Mr Tagini consented to the request for an adjournment by Mr Lidimanae, counsel for the defendants.

On that day after hearing both Council, the court directed further written submissions following upon which the court would make a determination on the papers. These reasons relate to that determination.

The changed circumstances were deposed to in the sworn statement of Kung Sie Kee the director of the first defendant,^[1] where he said;

“10. By early February 2017 the situation faced with the landowners deteriorated, thereby compelling the first defendant to withdraw from operations within Ilikata land.

11. Caught in such difficult situation, the first defendant withdrew all its machinery from Ilikata to the safety of Fote log pond towards the end of January 2017.

12. By notice of 15 February 2017 the second defendant terminated the technology agreement signed with the first defendant effectively forbidding the latter from re-entering the former’s concession for logging operations. Now produced and shown to be marked “KSK -6” is a true copy of the notice of termination

13. I affirmatively confirm that no logging operations have since been carried out within Ilikata land to warrant the granting of any restraining orders as doing so now would only render such orders nugatory or redundant.

14. More so, with the huge loss suffered by the first defendant whilst last operating in Ilikata land, it is inconceivable for us to remain interested in returning to the said land for further logging operations.

Quite clearly the defendants say they have withdrawn from the disputed land and suffered loss.
Robert Maebinua of Otekwanga,West Kwara’ae Malaita province, filed sworn statement^[2]. He claimed to be a tribal leader of Ilikata/Tolokwaso tribe and chairman of Ilikata trust board. He denied the standing of the claimants and their claim of ownership in the supporting statement of Daniel Ri’imana.^[3] Robert Maebinua went on to explain why Afoa tribe could not claim ownership in custom to Ilikata/Tolokwaso.
He said;
4. On the contrary I confirm that Afoa tribe of North Malaita has no ownership rights over Ilikata /Tolokwaso land in Kwara’ai as the said tribe, according to our ancestral history, was already in existence upon arrival of North Malaita of the person exiled by us from Kwara’ae.
5. With that being the case it is illogical thus redundant in Kwara’ae custom for the entire Afoa tribe (including the claimants) to claim their roots thus assert ownership rights to Ilikata/Tolokwaso land in Kwara’ae through that exiled person.
6. To dispel misunderstanding given by the claimant, I wish to clarify at the outset that Tolokwaso is for all purposes just an integral and constituent part of Ilikata land.
7. Tolokwaso is thus not a distinct and separate land on its own within its own boundaries but merely a parcel within the common boundaries of Ilikata.

The statement of the claimant, Daniel Ri’imana, based his claim to ownership on;
3. Our ownership starts from time immemorial and ownership of the land is still vested on us and tribe and had never been challenged in any court of law.
4. Since then no person or tribe challenged our ownership of Tolokwaso customary land. Our ownership is recognised by every person and tribal groups that owns other customary lands adjacent to our Tolokwaso customary land.

The defendants argument was made plain by the Ilikata trust board letter to Global Lawyers [acting for the claimants] on 12 December 2016 which (omitting formal parts) responded to an earlier letter of demand;
Principal
Global lawyers
Honiara
Dear Sir
Re; trespass into Ilikata and Tolokwaso customary land.
We refer to the above matter in which you act for Daniel Riumana and Shem Inomea who claim to be landowners of the above land. Your information the above land is in West Kwara’ae and your clients are from the northern region of Malaita. To claim that they are landowners of the above land is false because we are the true landowners who have been residing on the land for our lifetime.
If they claim to have any connection with us as landowners then we recommend that they return home and consult the Ilikata trust board before making such claims. If they refuse to come home and insist on the claim, they can show the documents TU or the company to prove and verify their claims. Thank you for your understanding
yours faithfully
Robert Maebinna (Chairman)
for Ilikata trust board;
cc. Mega Enterprises Ltd

This rather supports the refutation of the allegations by these claimants in their case, insofar as the assertions to ownership is concerned. I accept that the land Tolokwaso described as the parcel within the common boundaries of Ilikata land.

By RM-1 to Robert Maebinua’s statement it appears from the supplementary agreement of 14 October 2016 that the Ilikata land owning group executed an agreement with Mega Enterprises Ltd to vary the terms of the standard logging agreement under the Forest Resource and Timber Utilisation Act, acknowledging Bushman Enterprises had the licence over the land to be logged and which had signed the technology and management agreement with Mega. After the institution of proceedings some 4 tribal representatives of Ilikata customary lands denied recognition of Daniel Rii’mana as “having right to talk about the land or to any matter that regards. Thus according to our cultural chronicles is not at all recognised as part of us.”^[4]
On the claim for interlocutory relief I am not satisfied on the evidence on which the claimants rely, that they have an arguable case to presume to represent the Tolokwaso landowning group in the light of the earlier denials by the Chairman of the Ilikata trust board. It will not avail the claimants to now seek to have this issue determined by a customary tribunal, for in the face of the Trust Boards denial, proof of standing needed to be evidenced at the time of the institution of these proceedings. As said the assertion in the face of evidence to the contrary by an authority representing, [here, the Trust Board] will not suffice in claims for injunction.

I cannot see how these two claimants are directly affected by this logging for Daniel Rii’mana does not say beyond assertion, that illegal operation “will cause damage to our land including its flora and fauna”. They have not proved their standing as landowners separate from their representative capacity. For if they are in fact landowners entitled to benefit from these logging operations from monies paid by way of royalties, given the duly authorised representatives for instance, their claim in custom to share is not avoided were this application to be denied. Such claim is wholly independent of these proceedings and may be made in custom tribunals.

The application for all these reasons is denied. On balance there is no good reason to issue an interlocutory order directed to these defendants when I am satisfied the detriment to be stopped, the logging, has long ceased. I am further satisfied that the applicant’s lack standing in any event to pursue their claim for trespass.

Both the application for interlocutory orders and the Category A Claim is struck out for the claim shows no reasonable cause of action. The undertaking as to damages given by the claimants remains available to these defendants.

The claimants shall pay the defendants costs of these proceedings on the third schedule basis within 28 days of assessment or taxation.

_________________
Brown J

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^[1] statement filed 8/5/2017
^[2] statement filed 28/06/71. He claimed to be a tribal leader of Ilikata/Tolokwaso tribe and chairman of Ilikata trust board.
^[3] statement dated 28/06/17
^[4] exhibit are read for two statement