Lovasa v Metro Team Ltd [2018] SBHC 6; HCSI-CC 429 of 2016 (31 January 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Civil Case No.429 of 2016

BONIFACE LOVASA AND -V- METRO TEAM LTD,
SILAS SELO, CHIEF WILSON MIMA (Claimant) & OTHERS,
MICHAEL QORAHOVE
& OTHERS
(1^st 2^nd 3^rd defendant)

Date of Hearing: 19 October 2017
Date of Judgment: 31 January 2018

L. Kwaiga for claimant
D. Nimepo for 2^nd, 3^rd defendant
No appearance of 1^st defendant

Claim for damages for trespass by logger into customary lands

Brown J:

These claimants seek damages for trespass by the 1^st defendant, Metro Team Ltd which is logging land claimed to be customary land, Talau without the authority of the landowners.

The statement of case acknowledges that Metro Team Ltd (metro) is a logging company impliedly authorized by the 2^nd and 3^rd named defendants, (purportedly customary landowners of Talau customary land) for such logging purpose who have received “royalty payment” from Metro since about November 2015.

As a consequence, the claimant, as members of the Keruval tribe, have been deprived of the benefit of moneys derived from the felling and sale of their trees, the timber resource.
The right of the named claimants as “members of Keruval tribe” were determined by the Local Court of Russell Island in Land Case 2 of 2001. The Talau customary land was demarcated to commence from Kiraga to Kokolaon West. It is also pleaded that the 2^nd and 3^rd defendant were losing parties in that case.

The Defence filed by the 2^nd and 3^rd defendants denies any right to the relief claimed principally on the grounds that the named claimant are not from Keruval tribe (and not customary landowners of Talau or Kalan customary land). They have no standing in custom to represent the Keruval tribe in such proceedings.

They plead (apart from Frank Bollen, of the Solovui tribe) those named 2^nd and 3^rd defendants are either from Salitavea or Masi clan and deny they were party to the Land Case 2 of 2001. Land Case 2 of 2001 is between Patterson Barua (one of the 2^nd defendants) and Stanley Sade.
They further plead no approval or consent is required of the claimants to log for they are not of Keruval tribe. The defendants further plead the operation within Talau customary land is a concession area which has been through Timber Right Process.

The defendants consequently deny any right in these named claimants to any benefit or share of proceeds (derived from the logging operations) and deny trespass in any event.

The claimants by Reply take issue with the facts pleaded. By statement of one Mark Apa, (one of the 3^rd named defendants), the two claimants ownership of the land was denied, for he says “Silas Selo and Boniface Lovasa have no standing to take up this case as they are not in custom have any ownership of land. They are claiming through Stanley Sade and Patterson Barua”, (one of the 2^nd defendants). “The defendants including myself are the true landowners. We are from the Russell Islands and land ownership is passed through women. Matrilineal system of passing land ownership.”^[1]
The sworn statement in support of both claimants, by Silas Selo sought to detail the genealogical relationship, in answer to the claimed absence of standing (of these claimants).^[2] In paragraph 7 of that statement he details “persons determined to grant timber right over Pavuvu land and they are as follows,” (I will not list the person). The names are taken from the decision of the Central Islands Customary Land Appeal Court dated 2 April 2001.^[3]
The decision of the CLAC (Civil Case no- of 1996) related to an appeal in terms of the Forest Resources and Timber Utilisations (Amendment) Act, 1990. The appeal concerned the Bapa Area Councils Certificate of customary ownership dated 30/03/96. The Timber Right Hearing was in respect of the application by Marvin Brothers Company. Particular person representing the “Solovui tribe”, the masi clan of Keruval tribe” were found able and to grant “timber rights” under S.5 C (3)(b) of the Act, but various appellants took issue with that finding of the Bapa Area Council, that those particular persons proposing to grant timber right on Tavuvu customary land represented all the persons lawfully entitled to grant such right. As a consequent of the hearing of the appeal, very many more persons were named to represent “all person (able) to grant such right”. Taking those names from the record of the CLAC decision^[4] they were;

“- Stanley Sade, Masimino Qulizepo, William Fox, Clement Savaka, Nesta Vage, Edward Getu and Jasinto Lovasa on behalf of Keruval tribe.

- Lasaro Imisa of Kaiseleng tribe
- Jason Kikolo and Leslie Norris of Sevev clan
- Jemaima Keruvala, David Kome, Allen Toku, and Frank Bollen of Solovui clan
- Patson Barua Moran, Jacob Siho, Silvestire Kobaka and John Kapentana of Masi clan.”

As explanation for the inclusion of these tribe and clan names, I set out part of the CLAC reasons.
“At the outset, it is interesting to note the mention of Furu and Nalo (Furu ne nalo), the snake(s) by both Keruval and Sevev tribes. The use of the names in the genealogies of both tribes is also noted. On the oral evidences of the parties before this court we can no longer accept that Masi and Sevev were tribes of their own but clans emerging from the major Keruval tribe. We accept however that Kaiseleng is another major tribe on Russells from which Solovui clan emerged. This was even confirmed in the respondents’ written submission (CLAC No. 5/96 at p.11) in which it was stated, within Russell Islands and particularly Pavuvu island Keruval tribe and Kaiseleng tribe are overall names within which you have two major tribes or clan, Masi clan from the Keruval tribe and Solovui ........Tribe”. We have no doubt that missing from the quoted lines were the words, “clan from Kaiseleng”. In complete sentence it should therefore reads: “Masi clan from Keruval tribe and Solovui clan from Kaiseleng tribe. It is surprising as to why these words were so erased with no explanation. This proposition was even confirmed by the informants of both Kaiseleng and Solovui (Solui) to Robert H. Black to the effect that it was contained at page 14 of his book referred to above.

We note that Pavuvu is one of the larger islands in the Russells. Form evidences before us we accept that Keruval and Kaiseleng are two major tribes in the Russells. From the evidence before us also we accept that they were the first to exist on Pavuvu. However, whilst they may have primary right over lands on Pavuvu, for the purposes of this proceeding (ie, proceeding arising from timber right), the secondary right owners such as the Masi, sevev, solovui clans equally cannot be denied. These tribes and clans therefore must all consent before granting any timber rights to the applicant.”

Whilst the claimant, Silas Selo in his statement relies on a decision of the Local Court, (Case no 2/2001)^[5] saying that land ownerships over Pavuvu land was determined in favour of one Stanley Sade and that Patson Barua Moran (or Patson Barua so named in the record of the Court and who I find is Patterson Barua in these proceeding) lost (as did John Kapentana it is stated for he is also of the Masi clan), this argument rather misses the point, for the CLAC determination relates to the question posed in accordance with the Forest Resources and Timber Untilisation Act; who has been found to represent all the landowners and when one looks at the reasoning of the CLAC, it is plain that the CLAC accepted Stanley Sade (and others) represented the “Keruval tribe” and Patson Barua Moran (and John Kapentana with others) represented the Masi Clan. The Masi, Sevuv, Solovui clans, “secondary right owners equally cannot be denied.” So while the judgment of the Russell Islands Local Court Land Case no.2/2001 stated that the piece of land from Kokolaon west to Kiraga West is owned by Stanley Sade for Keruval tribe,^[6] the CLAC finding of those able (and necessarily who may) grant timber right was final and conclusive and may not be questioned in any proceedings whatsoever.^[7]

In other words, all those named by the CLAC may grant timber right, but the question of the particular land parcel affected had been settled by the CLAC finding.
That was in relation to the application to log by Marvin Brother Company. Now we have another decision by the Principal Magistrate given in the Central Magistrate Court cc no.10/2016 between named claimants, John Kapentana, John Kekei, Samuel Kubu and Oliver Salopuka (representing the trustees of three concession, Kalan, Talau and Kokoloan customary lands against Leslie Norris who had stopped logging operation which had encroached into his Ale Community customary lands. As a consequence of the magistrates finding of absence of defence, orders were made preventing the defendant Leslie Norris or his Ale Community “from interfering or tampering with the logs felled from the concession areas from the said customary lands referred to above.”^[8] The Magistrate recited the following parts of the claim;
“Following the timber right hearings, the claimants contracted a logging company called Metro Team Limited to carry out logging operation in 3 concession areas inside the Kalan, Talau and Kololoan. During the course of the logging operation, the defendant and his members from Ale Community disturbed the operation by putting up a “no road no trespass” notice inside Kalan land and other associate activities such as intending to confiscate the chainsaw machines and claiming the logs felled from the concession areas. Hence, the claimants seek permanent injunction to restrain the defendant and or his agents from entering the Kalan, Talau and Kololaon customary lands for the purposes of disturbing or interfering with the current logging operation.”

Clearly this case before me involves a subsequent timber rights hearing to that earlier application by Marvin Brothers Company, for the detail in the Magistrates reasons refer specifically to Metro Team Ltd’s logging operations, sanctioned by the claimants (representing the trustees of three concessions of Kalan, Talau and Kokoloan customary lands).
This concession area, Talau is claimed by the 2^nd and 3^rd defendant in the proceedings before this court as customary land in which they are “permitted to fell and extract logs as it is a concession area and has been through Timber Right Process”^[9] Paragraph 10 of the Defence specifically denies right in the claimants.

By statement of case, the claimants say of the 2^nd and 3^rd defendant;
“3. The Second and Third Defendants claim to be the purported customary landowners of Talau customary land and have since on or around 2014 deemed themselves as the rightful trustees of Talau customary land and have purportedly received royalty payment from the First Defendant since in or around November 2015.”

No appeal pursuant to any presumed Timber Right Hearing affecting Talau customary land has been shown to have been instituted by these two claimant,^[10] since “around 2014” denying these defendants standing as “trustees”.

The Central Magistrates Court decision, whilst not involving these two claimants, supported the presumption that timber right granted in accordance with the Forest Resources and Timber Untilization Act affecting Talau land, subsequently included in Metro Teams “concession”, so that an injunction issued to protect the right to deal with Talau land. These particular defendants have included in their number, persons previously found by the CLAC, able to grant timber rights, and by sworn statement^[11]
“Stanley Sade whom is a party in Land Case 2 of 2001 the Claimant are claiming through is my mother eldest brother. Stanley Sade is from the Keruval tribe. The Claimants Boniface Lovasa and Silas Selo their mothers are sisters. That I am from the Keruval Tribe who owns Talau customary land through my mother. In this proceeding John Kapentana is representing our Keruval Tribe as well but in his concession of Kalan, we are all from Keruval tribe. That our tribe have granted timber rights to First Defendants under Licence A101515 (“the Licence’) covering Kalan, Kololoan and Talau concessions. I also have interest as land owner on Talau concession as well.”

The standing (having regard to the claim of authorities relied upon by the defendant coupled with the apparent failure to exercise any right of appeal from the apparent timber rights hearing leading to the 1^st defendant licence A101515) of these claimants to impugn the right of these 2^nd 3^rd defendants to deal with the named concession has not been made out on balance. Their right may clearly relate to their claim in custom to a share or portion of the royalty moneys flowing from the logging of Talau land.
Those rights are not matters for this court to adjudicate upon, rather failure being beneficially included, (irrespective of these apparently never ending appeals over “ownership”, nomenclature which seems to give rise to such litigation), by appeal to the chiefs tribunal, reliant perhaps on the comments in the original CLAC determination about “secondary (landowning) rights” may afford some resolution or a share to benefit from the royalty moneys. This claim for all these reasons must fail.

There shall be judgment for the 2^nd 3^rd defendant, who shall have their costs on the 3^rd schedule basis. The 1^st defendants right to log stem from the findings in favour of the 2^nd & 3^rd defendants and consequently the claimant also fails in their claim against the 1^st defendant. No costs order is made affecting the 1^st defendant.

BROWN J

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^[1] Statement of Mark Apa sworn 1/3/17, para 4.
^[2] Statement of Silas Selo sworn 26/4/17, para 4.
^[3] Annexure “SS-2” to statement of Silas Selo
^[4] Annexure “SS-2”
^[5] Annexure “SS-3”
^[6] Annexure “SS-3”
^[7] S.10-(2) of the F.R.T.U Act
^[8] Exhibit “MA” to statement of Mark Apa dated 23/2/17
^[9] Defence para 9.
^[10] S.10 (1) of the FR&TU Act.
^[11] Statement of Mark Apa filed 01/03/17, para 3