Getu v Trijam Enterprises Co Ltd [2018] SBHC 57; HCSI-CC 88 of 2017 (18 May 2018)

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Case name:	Getu v Trijam Enterprises Co Ltd

Citation:

Date of decision:	18 May 2018

Parties:	Samani Logara Dausabea Kaliuae Getu v Trijam Enterprises Corporation Ltd, Evergrow Corporation Ltd

Date of hearing:	18 May 2018

Court file number(s):	Civil Case 88 of 2017

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Brown PJ

On appeal from:

Order:	The claim shall fail, in the absence of the a cause of the action There shall be judgment for the defendants. The clamant shall pay the defendants costs on the usual basis.

Representation:	Claimant in person M. Tagini for the defendant

Catchwords:

Words and phrases:

Legislation cited:	Forest Resource and Timber Utilization Act

Cases cited:

Claim for damages for trespass to tribal land arising out of logging carried out under special permit given customary landowners to carry out logging as a precursor to agricultural use.

By Category A. Claim filed on the 15 March 2017, the claimant claims damages for trespass by these defendants for loss of the timber felled, removed and sold from the Tusu’orege block, Saenihulumu Island, Gatokae, Marovo Lagoon, Western Province. The trespass relies on the claim of ownership to the land block given him, he says by his maternal uncle. While the claimant lives in Honiara, his land in the Western Province was by way of gift. His father, a Malaitan married his mother, whose own mother was from Choiseul.

It appears from the statement of case that logging took place under a special permit given the first defendant by Raedly Raeboy and Tasa Luten said by the claimant to be members of his tribe. The 2^nd defendant is sued as the 1^st defendant’s contractor which did the logging. For by LN 24/2014 under the Forest Resource and Timber Utilization Act, exemption from the special requirements set out in the Act before logging by an applicant to log may commence, may have been applied for and in this case, was, whereupon logging was carried out, it is said by the claimant illegally on this land. (Afterwards this unregulated logging of customary land was stopped on the revocation of the authority to allow special permit, although in this case, after logging had taken place). The illegality, by statement of case arose from the fact the land logged is claimed to belong solely to the claimant.

No defence has been filed. Mr. Tagini, counsel for these defendants says a conditional appearance previously may be presumed as implied application to strike out, although no such written application was made. He argues today there is in reality, no standing in this individual to claim damages when the land is customary land and belongs to the tribe which had granted the special permit to log.

By order perfected and made on the 14 June 2017 in the absence of defence, judgment restricted to the issue of liability was granted this claimant. At that hearing, these defendants through their solicitor, Mr. Tagini requested further time to file defence. The oral application was refused since the time allowed by the rules had long passed. The claimant’s assessment of damages was set down for hearing on 27 October 2017, such assessment was to be allowed by way of sworn statement.

On the 30 November 2017 following hearing of the claim for assessment of damages the court made the following finding;

Further for reasons given following address by Mr. Tagini, in the interest of justice, the court dispensed with strict compliance with the Rules and set aside the judgment by default. It was argued and asserted on the defendants part that this proceeding had been originally instituted in the Magistrates Court and afterwards settled by payment out of court. On the basis of the assertions by Mr. Tagini, counsel for the defendants, they were given a further 28 days to file such defence. No defence has been filed but Mr. Tagini has argued the facts of the case in any event show no cause of action lies with this claimant.

The proceeding before the Magistrates Court, cc 410/15 was admitted to have been settled by the parties filing a document entitled, “Deed of Settlement”. The document showed no “stamp duty paid”. The document had been filed in those proceedings after default judgment had been entered and after appeal, from the Magistrates order, had been made to this court. It consequently has been argued, following accepted settlement of those proceedings made by that document, this claimant has no cause of action today. The appeal to the High Court was later admittedly discontinued reliant on the document “Deed of Settlement” filed in the lower court proceeding. Following final order by judgment, the lower court was functus. Were the document to be stamped it may have been raised as a defence had the plaintiff/judgment creditor sought to recover the judgment.

Before proceeding further, this court should describe the obvious failings leading to the judgment in the court below. The Magistrates Court ruling given on 2 August on application by these defendants to set aside default judgment [entered in this claimant favour] was refused; the application was dismissed with costs against two named defendants.

In the Magistrates reasons, at 1 and 2 it is plain that an ex parte order had been granted and was in effect against some named parties. Proceeding, it would seem were brought by amended claim on the 11 April 2016, where “two parties previously named as defendant 2 and 3 in the original claim were removed. The current second and third defendant then replaced them in their numerical allocation as per the current claim. The said claim was served on the 2^nd defendant at his office at King George on the same day through person called Soan. The 3^rd defendant served with the same claim on 14 April at his camp manager residence in Naha 4. On the 29 April 2016, the amended default judgment was granted to reflect the change of the 3^rd defendant from Evergreen to Evergrow Co Ltd.”.

It should be said reasons, at 2.4 recount that “On 8^th April 2016, claimant was ordered to file the amended claim before 2^nd of April 2016 [sic]. On the same occasion, claimant applied for default judgment and relied on a sworn statement filed on 4^th April 2016. That sworn statement made reference to the service of the interim order but not original claim. Default judgment was granted”.

The sequence of process coupled with change of name of judgment debtor parties after judgment was purportedly entered, suggests a clear breach of natural justice and breach of the audi alteram partem rule requiring notice of what is proposed (not after the event of a court order) and an opportunity to be heard. Whilst appeal was made to the High Court, the appeal was apparently discontinued since settlement was reached out of court and that “Deed of Settlement” filed with the Magistrates Court.

That document without stamp may not be used in court proceedings as evidence of the facts stated unless extrinsic evidence of its terms is adopted by a party to these proceedings. Such is the case in this proceeding. It matters not that it was allowed to be filed in the Magistrates Court. Had it been stamped, it may have been available for use by either party as a shield perhaps to action brought by the other party.

The Magistrates Court decision by judgment of the 2 August 2016 has not been affected in any way by the filing of the document. No appeal to the High Court proceeded or is extant. The default judgment however in that lower court has been said by the claimant to have been for “royalty moneys”. It is further accepted by the claimant, today that such royalty moneys have been paid and judgment satisfied.

In the circumstances, the claimant is estopped from claiming any supposed loss of value for those trees felled and sold from his land for he has already accepted moneys acknowledged to be royalties. It is a common practice, accepted in this jurisdiction that landowners accept “royalties” as compensation for logging carried out on their land.

By his admission in court today where he stated “Royalty moneys was the subject of the claim before (in the Magistrates Court) not the loss of the logs”, (which form the basis of this proceeding) the claimant’s right as landowner to these royalty moneys has, as conceded by the defendants been paid to this applicant. The description of such moneys as “royalties” is in the claimant’s documentation. The claimant argued by earlier payment, that the defendants “admitted the claimant is the owner of logs”. In the absence of defence, such implied admission is available to the claimant and supports the reason for payment of royalties by these defendants. Whether such payment to this person was actually necessary in the circumstances in the light of the lower court imbroglio is not for this court to consider, rather this court accepts the fact the money was paid as “royalties”. Having accepted royalties the claimant is estopped from now seeking to recover the whole value of timber felled, since by acceptance of royalties he has impliedly conceded the common practice as it affects custom land. Landowners’ share of the timber felled and sold, after statutory taxes and dues, is known as “royalties”. The balance of the sale moneys is the cost of logging.

Much argument was had over “ownership” of this custom land. “Custom land” by definition means-“any land (not being registered land, other than land registered as customary land, or land in respect of which any person becomes or is entitled to be registered as the owner of an estate pursuant to the provisions of Part III) lawfully owned, used or occupied by a person or community in accordance with current customary usage, and shall include any land deemed to be customary land by paragraph 23 of the Second Schedule to the repealed Act;”

In the absence of defence and on the material relied upon by the claimant, the court finds there is no issue for argument, rather the claimant is, for purposes of custom, seen as holder of the volososor block of customary land and his rights in custom in consequence of the special permit granted by others of the tribe as the permit affects him stands to be decided in custom by the tribe and failing agreement, may be placed before a council of chiefs. This court should not presume to stand in place of the custom tribunal and seek to adjudicate in relation to matters pertaining to the other tribepersons’ acts in obtaining the special permit affecting custom land and allowing logging.

The claimant has not satisfied the court that, as a member of the Getu tribe current customary usage entitles him to maintain this action in his sole name and retain any moneys for the timber resource already taken and felled by special permit where royalties were paid him. For by his material in support, the members of the tribe relate blocks to particular “owners”. For by statutory declaration, for instance, Lavenda Johnson says;

The ownership pleaded is but by description, volososor and customary rights viz a viz the tribal right to deal with the land is a matter for the tribe.

The declaration was made before this claimant as Commissioner for Oaths. The attestation has the stamp of the claimant with the words, “Commissioner for Oaths, Barrister and Solicitor.” Since the claimant lives in Honiara and the deponent may be presumed to live in her village in the Western Province it is reasonable to find the document was typed and drawn by the claimant for his own purpose. While not wholly relevant to this proceeding, the claimant at the date of declaration, 8 December 2016 was not a barrister or solicitor. Since Executive meeting of the Solomon Islands Bar Association in 2013, when it resolved to refer a complaint made against this person to the Attorney General for the purpose of convening a disciplinary panel to hear the merit of the complaint, no practicing certificate has been given this claimant, who may be said to be wrongly holding himself out as such barrister and solicitor. His probity must in that light, be taken into account when considering this proceeding. The declaration was made at Honiara, and while it purports to recite the blockholders [without actually naming the Commissioner of Oaths as the blockholder of Saenihulumu Island] it may be seen to support the tribes holding of all the lands named whilst acknowledging particular usage rights of individuals. To now claim sole rights to sue for his own benefit has not been shown to accord with a presumed underlying right of the tribe, to be responsible for and determine, the use of tribal customary land.^[1]

Where these two earlier named tribal members have been said to have obtained a special permit to carry out logging on custom land [in absence of safeguards written into the Forest Resource and Timber Utilisation Act], by presumed tribal acquiescence, the tribe may be expected to adjudicate this dispute between tribal members as one in personam. Customary land cannot afford individuals rights often associated with rights “owners” of leasehold or fixed term estates have under the Land and Titles Act. The rights in customary land are rights found by the tribe and the use of the word “ownership” by an individual in cases such as this is often erroneously used when the term “usufruct” [or volososor perhaps] may better describe such right.

I am satisfied the claimant has alternate avenue for redress in custom if so allowed by the tribe. This court is not the appropriate forum. I am also satisfied the acceptance of royalty moneys in the circumstances by estoppel bars the claimant from now seeking any other moneys for the timber which led to the payment such “royalties” by these defendants in the first place.

The claim shall fail, in the absence of a cause of action. There shall be judgment for the defendants. The claimant shall pay the defendants costs on the usual basis.

High Court of Solomon Islands

Getu v Trijam Enterprises Co Ltd [2018] SBHC 57; HCSI-CC 88 of 2017 (18 May 2018)