Joshua v Nulu Customary Land Investment Development Association Ltd (NCLIDAL) [2018] SBHC 29; HCSI-CC 6 of 2018 (6 March 2018)

CHIEF WILLIE JOSHUA -V- NULU CUSTOMARY
(Claimant) LAND INVESTMENT
DEVELOPMENT
ASSOCIATION
LIMITED (NCLIDAL),
PACIFIC CREST
ENTERPRISE LIMITED
(1^st 2^nd Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.6 of 2018

Date of Hearing: 28 February 2018
Date of Judgment: 6 March 2018

G. Fa’aitoa for claimant
R. Tovosia for defendant

Application for urgent interlocutory injunctive order to stop logging.

Brown J:
This is an application to suspend logging over Ghalaghala customary land pursuant to a Felling Licence of the 1^st defendant, Nulu Customary Land Investment Development Association Limited. As well the applicant, Chief Willie Joshua seeks an account of logs felled and sold by the 2^nd defendant from the land. In support the applicant relies on a sworn statement read. Although objection was taken to various paragraphs, I determined the statement was admissible in form and the defendants would have opportunity to dispute the factual allegations made.

The applicants rely principally on a finding of the Kubokota Council of Chiefs given on the 2 November 2107 when the Chiefs determined that the Ghalaghala tribe is the owner of the customary land. In the statement of case in support the applicant claims that the respondents entry upon the land constituted trespass.
As well the applicant pleads the actions of the respondents was unlawful for reasons going to failures to satisfy the timber rights process leading to the grant of timber rights by “certain men purporting to be trustees of the land” by a Form IV agreement. Other criticism was addressed to the failure to incorporate the Association by the time of execution of the Form IV. It is further denied that the persons who signed the Form IV agreement were “in fact members of Ghalaghala customary land.” I accept that to mean they were not members of the “Ghalaghala tribe”.

The annexure “HH-2” to the sworn statement of Hampton Horton filed in support of the applicant is a copy of a Standard Logging Agreement, Form IV. The agreement dated the 13 May 2017 [bearing stamp of the Collector] is between the Trustees of Nulu/Ghalaghala Customary Land as “representatives” of the one part and Nulu Customary Land Investment Development Association Limited of the other part and recites the grant by the “representatives” of the felling rights of the customary land known as Nulu/Ghalaghala customary land to the Association. Some fifteen persons have signed for the “representatives” while the company has three signatures. No company stamp has been affixed.

Following upon the execution of the agreement, I accept the Felling Licence given by the Commissioner of Forests issued to the 2^nd defendant.
By defence filed on the 12 February 2018, the respondents deny authority in Chief Willie Joshua as the chief and leader of the Ghalaghala tribe.

By Rule 3.42 the court may on its own initiative require an applicant to provide proof of their entitlement in custom to act as such a representative before any further step in the proceedings may take place. Since the respondents deny authority in the applicant to represent the tribe the court may accept such denial as reason to exercise its right under Rule 3.42 before entertaining this application for an interlocutory order. The proceedings follow admitted timber rights process [although the applicant asserts such process was flawed]. I am concerned then, to ascertain whether Chief Willie Joshua was listed amongst those determined to “represent” the landowners of Ghalaghala customary land for his name does not appear on the Form IV agreement granting timber rights. It is reasonable to expect since he claims standing to represent the tribe, that he would have been concerned with the timber rights hearing. I am informed the applicant only found out about the timber rights hearing after the 2^nd defendant had commenced its incursion into the customary land. This assertion does not sit easily with the evidence of the respondents.

When I read the applicants statement in support, annexure “HH-1”, [the record of the unaccepted settlement Chiefs decision of the 2 November 2017] I see it was between Willie Joshua [this applicant] and two others, Danny Baoni and Hempton Bekepio of the plaintiffs part and Via Tate Sala, Casper Batukuduru and Cherry Tanito as defendants of the other part although nowhere does the Council of Chiefs refer to or find Willie Joshua Chief of the Ghalaghala tribe. The dispute was over the lock [sic] boundary land between Ghalaghala and Ghanogga and to find the true ownership of that area which the defendants claimed. The nature of the dispute was stated by the plaintiffs spokesperson, Hepton Bekepio to be that the block area within Ghanogga land which the defendants called [it] Nulu Ghalaghala was not proper name and does not belong to them. At page 5 the record says:
“Plea: (Defendants)
The dependant’s party claimed that the portion of land described by the plaintiff as Ghalaghala sub-divided from Ghanogga land was not true. Ghalaghala land and Ghanogga land unseparable according to the court ruling, boundary from Kaurei to Loboro was known as Nulu Ghalaghala land. They based their claim from this point of law.

1. Judgment, CLAC no.4 of 1980 (Western) Order-(a). Nulu line has customary title to Ghanogga land as descried in this judgment (b). Bruce Ragoso Chief of Nulu line whose Chiefs are also chiefs of Ghalaghala line.
2. Certificate of No Appeal – 24^th February 2017
3. The high court of Solomon islands Local Court (Amendment) Act 1985.”
   

Or High Court”
By reasoned decision, the Chiefs ordered;
“1. The Kubokota Council of chiefs (KCC) was hereby convinced, believed and confirmed that the Ghanogga land was divided because of incest. Ghanogga land with one (1) poata bangara and one (1)poata TIT belongs TIT belongs to Raranga descendant line, Ghala ghala and with one(1) poata bangara and one (1) poata TIT belongs to Sia(F) descendant line. Confirmed by the boundary-Ghalaghala land from Mondo river to Kaurei river, Ghanogga land from Mondo river to Patukae.
2. That all decision concerning Ghalaghala land shall vested in the responsibilities of Ghalaghala bangara/leader.
3. That the Ghalaghala tribe will be one of the clan with ownership authority from time in immemorial and successive generations.
4. The defendants’ clan to liaise with the plaintiff/s clan for peace and reconciliation and hereby appeal to each clan to recognize and respect each other. These include:-

1. Their present residential site
2. Their gardening/farming sites
3. Their coconut plantation
4. Burial ground
5. And other properties owned with in the land.

5. That if Chiefs have heard and ordered a dispute and make a decision, and later it is discovered a court has already made a decision, the court decision stands.”

It is apparent by reading 5 the Chiefs accepted the principle of law by judicial precedent or stare decisis and accordingly are bound by previous decisions of courts of record. For in the Chiefs reasoning, their directions can only relate to matters within their cognizance. In this case, the directions that all decisions concerning Ghalaghala land vesting in the responsibilities of Ghalaghala bangara/leader is subject to earlier determinations by courts of record affecting the power to deal with Ghalaghala land and any such determinations which flowed from the timber rights process under the Forest Resources and Timber Utilization Act.

The respondents by sworn statement of Viva Tatesala of Buri Village, Ranogga Island responded to the claims by the applicant, especially dealing with the claim that proper notices under the Act had not been posted before the hearing for timber rights. For as a consequence of the Provincial Executives determination by Form II finding some ten named “representatives” able to grant timber rights over Nulu and Nulu/Ghalaghala land, a number of appeals were filed by relatives of the applicant in this case before me. By CLAC decision given in May 2017, [“VT-6”] the court ordered;
“1. The appeal is dismissed,
2. The Western Provincial Executive (WPE) determination in respect of Timber right hearing on the 9^th day of July 2013 is upheld;
3. The lawful people able to grant timber right over Ghalaghala concession boundaries are: Herrick Tatagu, Viva Tatesala, Chief Luke, Medosi Tivikera, Toge Piranga, Willie Noah, Kevin Sipata, Jeffery Apusae, Rodrick Tikera and Boaz Majikolo.
4. Additional trustees: Casper Batukuduru, Cherry Tanito, Napoleon Padabela, Gaga Tanito and Veno Apusae.
5. The court decline to make any order as to cost.”

By its reasons, the CLAC addressed the matters which had brought about the hearing and touched on the claim by this applicant about absence of notice before the Province’s hearing, at 19 below.
“15. Having considered submissions from both the Appellant and the Respondents, the Court has carefully look at the circumstances as why this case has to be reconvene before the WCLAC.
16. First, the High Court allows this matter to reconvene and to identify persons entitled to grant timber rights over Nulu and Nulu/Ghalaghala customary lands.
17. Secondly, the issue before this court now is whether the Western Provincial Executive (WPE) is wrong in Law to grant timber rights to the Respondents as the persons lawfully able to grant timber rights over Nulu/Ghalaghala customary land.
18. This court has the opportunity to go through the same documents that has been used on the previous court sitting including the High Court proceeding.
19. According to the rights records, the appropriate authority (WPE) have considered every single evidence presented before them during the timber rights hearing. This includes, the applicant proposals in support by the landowners, objections remarks from other members of the landowners, documentations from the Forestry department and legal documents.
20. The objectors during the timber rights hearing are as follows:

1. Tom Toata of Naigao tribe,
2. Alphea Mark of Naigao tribe,
3. Harson Qaqo of Ghalaghala tribe,
4. Derrick Alekera of Nulu tribe,
5. Nelson Mamipitu of Ghanogga tribe, and
6. Samson of Ghanogga tribe.

21. Out of the six objectors, only two appeals that are made up to his stage in relation to Nulu/Ghalaghala customary land.
22. Interestingly, there were ten (10) purported landowners being approved as land trustees in support of the application in respect of Nulu/Ghalaghala customary land. They are follows:

1. Herrick Tatagu of Nulu/Ghalaghala
2. Viva Tatesala of Nulu/Ghalaghala
3. Chief Luke of Nulu/Ghalaghala
4. Medosi Tivikera of Nulu/Ghalaghala
5. Toge Piranga of Ghalaghala
6. Willies Noah of Nulu/Ghalaghala
7. Kevin Sipata of Ghalaghala
8. Jeffery Apusae of Ghalaghala
9. Rodrick Tikera of Ghalaghala
10. Boaz Majikolo of Ghalaghala

23. It appears that the persons appointed as land trustees are originated from the tribes recognized as Nulu tribe and Ghalaghala tribe.”

The CLAC also found the chief of Ghalaghala tribe to be Harson Qaqo, for there was no dispute about his status. Since the finding of the CLAC is immune from review by virtue of Section 10(2) of the Act, I am not satisfied the applicant may stand as Chief of Ghalaghala tribe.
It can be seen by para. 20 of the CLAC reasons, above, the objector at the Province hearing was Harson Qaqo but as shown by reason, at para 25, the CLAC accepted Bruce Ragoso to be a chief of NULU and Ghalaghala line or tribe and in terms of ownership under the [Act] the appellant [Harson Qaqo] and the Respondents [the named “representatives”] have the equal land right to grant timber rights over Ghalaghala customary land. By the CLAC determination, the Western Provincial Executive findings given on the 9 July 2013 was upheld and this Court may not in effect, review the decision by presuming to find standing in this applicant to institute these proceedings.

At the time the Province dealt with the application, the 1^st defendant was an Association which later became incorporated. I accept the felling licence was given the corporation before its date of incorporation but the company was a fresh manifestation of the Association originally accepted by the Province. In the event, the description of the licence was validated by the Association on incorporation. I do not accept the applicant has standing to impugn the licence.
For all these reasons, I refuse the application for interlocutory orders.

Since the CLAC decision must be accepted to have addressed the appeal by the conceded chief of the Ghalaghala tribe, Chief Qaqo, an appeal dismissed, by star decisis this court does not accept the applicants standing to institute these proceedings seeking discretionary orders. Before proceeding further, since the issue has not been argued I propose to list the matter for hearing to allow the applicant an opportunity to explain why the proceedings should not be dismissed and if necessary an opportunity for the defendants to seek security for costs where the justice of the case may require such order where the matters in Rule 24.53 would bear on the question.

The defendants shall have their costs of the proceedings today on the ordinary basis to be assessed or taxed and paid within 21 days of such agreed assessment or taxation.

__________________
BROWN J