Pipi v Osifelo [2017] SBHC 98; HCSI-CC 447 of 2017 (10 November 2017)

REUBEN PIPI, PETER WASI, -V- FRED OSIFELO, BAHOMEA
HILARY PANDAGOKO, LOGGING COMPANY
MOFFAT SOLO, AND LIMITED, GALLEGO
STEPHEN TORARIWAHA RESOURCES LIMITED,
(Claimants) ATTORNEY GENERAL
(1^st 2^nd 3^rd 4^th Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.447 of 2017

Date of Hearing: 27 October 2017
Date of Judgment: 10 November 2017

P. Afeau for claimant
M. Bird for 1^stand 3^rd defendant
M. Tagini for 2^nd defendant
D. Damilea for Attorney General

Application to set earlier injunctive order affecting logging aside.

Brown J:

On the 13 October 2017 an interim interlocutory injunction order was granted (after an inter party hearing) preventing the 1^st, 2^nd, and 3^rd defendants from logging on Barahau land in Malango Ward, Central Guadalcanal. Those defendants were further ordered to account for logs felled and taken from the land in the time leading to the grant of the order.

The claimants, by Category A Claim [the “claim”] sought damages for trespass to the customary land [Barahau] and an account for the value of the trees taken and felled from the land and sold overseas. The claimants say they are members of Lasi Tribe of Malango living at Turarana Village in Vulolo Ward, Central Guadalcanal and represent their Lasi tribe. They say the 1^st defendant, Fred Osifelo is an individual residing at Malatoha Village, Central Guadalcanal. The 2^nd and 3^rd defendants are logging companies. The 3^rd defendant is carrying out the actual logging operations on Barahau land. The Commissioner of Forests is the functionary under the Forest Resource and Timber Utilisation Act responsible for administering provisions of the Act with power to grant logging licences in accordance with the provisions of the Act. The claimants through the Lasi tribe are the customary owners of Barahau land and claim the 1^st defendant is not a member of the Lasi tribe, has never been appointed, nominated or chosen as a representative or trustee of Lasi tribe for any purpose whatsoever and was not authorised to sign any timber rights agreement with the 2^nd defendant in respect of Barahau land. He has never accounted for the proceeds of trees felled on the land.

The claimants say the 2^nd defendant holds a timber licence no. TIM 2/90/A over various customary lands including Barahau. The 3^rd defendant has entered into an agreement with the 2^nd defendant to fell the trees under the logging licence of the 2^nd defendant over Barahau land. The claimants have come to this court to assert their rights and by Claim, seek damages for trespass on the land.

The interim injunction was granted in the first instance but now the defendants [apart from the Attorney representing the Commissioner of Forests who has indicated he will abide the decision of the court] by my leave given on the 13 October come back to court to have the injunction set aside pending trial. Since the interim order was made, the 1^st and 3^rd defendants have filed a defence and statement in support, denying the claimants have any entitlement to the relief sought and counterclaiming for orders preventing these claimants from interfering with the logging operations.

By Defence filed on the 25 October these defendants deny for reasons stated, that these claimants are owners of Barahau land but merely settlers following a resettlement program after an earthquake in 1977. The 1^st defendant further claims to be an original owner of the land and is from the Barahau tribe. The 1^st defendant further denies the right of the joint panel of the Malango, Bahomea and Vulolo House of Chiefs given on 9 March 2017 to adjudicate the claim of these claimants since the composition of the House of Chiefs did not follow the jurisdictional composition mandated by S. 12 of the Local Courts Act. The 1^st defendant claims not to have been given proper opportunity to be heard and in any event, the representative of the Kochiabolo tribe [apparently a tribe adversely affected by the Chiefs’ decision too] has appealed the decision, presumably as an unaccepted settlement, to the Local Court. The 1^st defendant has also filed a judicial review claim in cc. 238/2017. (It is difficult to accept a judicial review claim has merit in these circumstances; the matter is one of custom and the Chiefs House is not a judicial body subject to review by the High Court). The proper and primary way of review is in accordance with the statutory provisions, to a Local Court in accordance with the Act. To seek judicial review may be seen as obfuscation.

The 1^st defendant further states he does not need the claimants’ authority to enter into a standard logging agreement with the 2^nd defendant on behalf of the Barahau tribe. Nor is he obliged to account for the logging proceeds to the claimants.
The 1^st and 3^rd defendants state their logging operations on Barahau land is lawful.
In support these defendants have filed an affidavit by Fred Osifelo swearing to the matters in the Defence.

The matters in the Claim have also been supported by sworn statement by Peter Wasi.
These proceedings arise out of dispute over logging and consequently the parties must show standing to institute and answer such proceedings.

The claimants admit logging on Barahau land and the existence of a logging licence with the 2^nd defendant.
Whilst the defendants by annex “FO-1” to Fred Osifelo’s statement show Turarana Centre, old Nata and Niu Nata as affected by the earthquake and a number of people wished to be resettled, the defendants argument in denial [over these claimants’ rights to Barahau land] reliant on the assertion they originated away from the land [now here by resettlement] may well be an argument for a custom tribunal to determine but now cannot affect the substantive rights of the parties subsisting when the logging licence over Barahau land was granted. For by certificate of customary ownership given by Form II the Guadalcanal Provincial Executive found Fred Osifelo as the person lawfully able and entitled to grant timber rights in relation to Barahau land, naming Lasi as the tribe. Whilst these claimants have appropriated the name, “Lasi tribe”, since no appeal was made by these claimants within the time limited by the FR & T U Act or the Land and Titles Act to the Executives finding, the grant of timber rights, evidenced by the Provincial Secretary on the 20 September 2007^[1] by the representatives of the Barahau landholding group in the area of Malango by 1. Fred Osifelo of Mataruka village; 2. Martin Sese of Mataruka village and 3. Jurias Lebi of Mataruka village was uncontested to this day. As a consequence, the Commissioner of Forests was able to issue a logging licence over the land. That licence no. TIM 2/90/A is claimed to be lawful, giving rights of logging operations in Barahau land.

I am satisfied, since there arises a presumption of regularity in these circumstances, the right to log by licence in favour of the 2^nd defendant coupled with the grant of timber rights by the person found to represent “all the landowners” of Barahau land, that the injunction given in favour of the claimants should be, in the exercise of my discretion discharged. The argument by the claimants, by Mr. Afeau in favour of maintaining the injunction until trial for the balance of convenience supports such claim, has not been made out. These claimants rights of appeal if any, under the FR & TU Act had not been exercised and their later claim to have a decision of the Chiefs in their favour cannot be maintained in the face of the earlier finding in favour of the 1^st defendant whose standing to represent all the landowners has not been overruled by a court of competent authority. By presuming to rely on the Chiefs decision the claimants may pursue their rights to claim in personam against the “representative” found liable to all landowners for the exercise of his responsibilities to account for and distribute in accordance with custom, particular persons share of the logging moneys. The claimants cannot, however, presume to avoid the effect of the statutory process whereby Fred Osifelo was determined “representative” by later claiming to challenge the Provincial Governments determination through the Chiefs hearing. The statutory process provides rights to aggrieved parties to appeal the Provincial Governments decision and failure to exercise those rights within time prevents these claimants from now denying the efficacy of the Government determination. Only when the appeal period provided by the F.R. & T.U. Act has expired may the Executive confirm with the Commissioner of Forests who then may issue a licence. No certainty, when long afterwards someone obtains contrary decision from a Chiefs hearing, will be afforded landowners, logging licencees and logging companies if the statutory effects of the process accorded all persons at the time, may be circumvented so easily. The Chiefs hearing may afford these late objectors rights in personam to a share in the distribution of proceeds, but not the right to ignore all that has gone before, leading to the licence to log with the consent of the “representative” so as to make adherence to statutory process rather pointless.

Whilst Mr. Afeau has sought to show by discrepancies in the material filed, such discrepancies do not amount to sufficient reason to overlook the underlying rights in the representative, Fred Osifelo.

The Court of Appeal’s acceptance of the principles in the American Cyanamid case supports my reasons, for that case propounds, if recoverable damages would be an adequate remedy [and logging has been carried on about the area for some time] no interlocutory injunction should normally be granted.

The injunctive orders of the 13 October 2017 are discharged. The claimants undertaking as to damages if any suffered by the defendants by these earlier injunctive orders is still extant.

The Claim may proceed in accordance with the usual directions. Since the claim is one in personam, and apparently dependent upon a finding by a court of competent jurisdiction, a local court, that these claimants have standing to expect benefits by way of proceeds from the logging moneys, it may be appropriate to stay these proceedings pending that outcome and order indemnity by way of Bank guarantee in an amount to cover the undertaking as to damages if these proceedings are pursued. For there is no evidence these claimants have moneys or assets sufficient to cover their undertaking.

The 1^st, and 3^rd defendants shall have their costs of the hearing on the application to discharge the injunction. The costs reserved at the earlier interparty hearing shall be costs in the cause.

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BROWN J

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^[1] Form 3 annexure “FO-2” statement of 26 October 2017