Sibea v Gwasusu Repatriation Co Ltd [2022] SBHC 17; HCSI-CC 718 of 2019 (6 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sibea v Gwasusu Repatriation Co. Ltd
Citation:
Date of decision:	6 May 2022
Parties:	Chrisando Sibea v Gwasusu Repatriation Company Limited, Samlinsan (SI) Limited, King Star Limited
Date of hearing:	4 November 2021
Court file number(s):	718 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	9.1 Defendants, their agents, contractors, servants and assignees are permanently restraint from entering, re-entering and undertaking further logging activities on Aufalisi within TCL. 9.2. Declaration that defendants have trespassed into Aufalisi within TCL and carried out illegal logging therein. 9.3 Damages for trespass and environmental damage to be assessed. 9.4 Cost against defendants to be assessed if not agreed.
Representation:	Mr Lidimani D for the Claimant/ Applicant Mr Kwana L and Lauta L for the Defendant/Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Simbe v East Choiseul Area Council [1999] SBCA 9

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 718 of 2019

BETWEEN

CHRISANDO SIBEA
Claimant /Applicant

AND:

GWASUSU REPATRIATION COMPANY LIMITED
1^st Defendant -1^st Respondent

AND:

SAMLINSAN (SI) LIMITED
2^nd Defendant / 2^nd Defendant

AND:

KING STAR LIMITED
3^rd Defendant/3^rd Respondent

Date of Hearing: 4 November 2021
Date of Decision: 6 May 2022

Mr Lidimani for the Claimant/Applicant
Mr Kwana L and Lauta L for Defendant

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Introduction

1. Gwasusu Repatriation Company Limited (“GRCL”) is a commercial entity connected to Maena Tribe of West Kwaio, Malaita Province. The said company has a valid felling license due for expiry on 2/10/2022. The company’s felling license is A101694. The felling license covers the following concession lands in West Kwaio – Dalifulagai, Fouibo, Funika, Ketekete, Sinaiolo, Ngarinato, Tofunauli, Otelamamali’i, Gouna, Kwaukwau, Laloasi and Aufalisi. The said Aufalisi is also referred to in the materials as Aufarisi.
2. This dispute arose because on or around September 2019, claimant alleged GRCL and its contractors (2^nd and 3^rd defendants) entered into a land that is outside of GRCL’s felling license concession lands. That land is called Talairiu Customary Land (“TCL”). The TCL belong to claimant’s Talairiu Tribe/Clan. Claimant was not happy. Claimant took the defendants to court because he did not consent to logging inside of TCL. Defendants through Maena Tribe trustees, disagreed and say that the area disputed and claimant called TCL, is actually a portion inside of Maena Tribal Land. And that portion within Maena is called Aufalisi inside the concession licensed lands.

Disputed portion finally settled in the appropriate forum in favour of claimant and his tribe

3. To assert their ownership rights that Aufalisi is part of TCL and not Maena Tribal Land, claimant went to Ngarilasifono Lafari Chief’s Panel^[1] going as far as Malaita Customary Lands Appeal Court (“MCLAC”^[2]). In the MCLAC, it was finally adjudged without further appeal that Aufalisi is part of TCL and not Maena Tribal Land. With the dispute exhausted in the appropriate forum, it is now settled that the disputed portion is part of TCL. And it belongs to the claimant’s tribe. It also means that defendants have operated inside a customary land that is outside of their concession licensed lands. Whilst defendants denied felling trees inside of Aufalisi, I am satisfied they felled trees there. There is a consent order and a MOU that governs the felled trees. The consent order was perfected on 1/09/2020. The relevant terms of the consent order are:
   • (i) That subject to the execution of an access agreement over Talairiu land, the 1^st, 2^nd and 3^rd defendants may resume the exercise of road access rights within the said land for purposes of logging operations in all other lands not affected by this proceeding.
   • (ii) The defendants shall by way of sworn statement setting out volume species and value, account for all logs extracted out of the disputed area otherwise referred to as Aufarisi (Underlined my emphasis).
   • (iii) The proceeds of logs exported out of the disputed area, save for export duty payable to the government, shall be paid into a trust account established in joint names of solicitors of the parties, pending further or final orders of the Court (Underlined my emphasis).
4. There was also a MOU over the logs allegedly felled and exported from the disputed Aufalisi. I do not give much weight to the MOU because defendants say they were forced to sign the MOU to avoid holding up of exports and payment for demurrage fees, if loading was disturbed. I give heavy weight consideration to the consent order. The consent order recognised that the disputed portion (from which trees were felled) could either be inside of TCL or Maena Tribal Land, subject to what the High Court may have to say (See paragraph 3 (ii) and (iii) above). The Chiefs Panel and MCLAC have said that the disputed portion is situated within TCL. That is to say the disputed concession land referred to as Aufalisi in the license concession map is not the Aufalisi inside of Maena Tribal Land. It is in fact a portion of land within the TCL, belonging to the claimant. And claimant did not consent to that land to be logged under the 1^st defendant’s felling license A101694. On the basis of the MCLAC conclusion, this Court will have to say that the land defendants called Aufalisi is outside of the licensed concession lands. And is in fact adjudged to be a land inside of TCL.

Is the disputed portion a licensed land by virtue of the timber rights determination?

5. The next matter I should consider is “Is Aufalisi inside the 1^st defendant’s licensed concession lands by virtue of the timber rights acquisition?” Defendants assert that Aufalisi went through a timber rights process and passed without protest from claimant, Mr Sibea. Defendants say Mr Sibea did not object at the timber rights hearing conducted in West Kwaio. Mr. Sibea also did not dispute the timber rights hearing licensed concession map of the areas/lands intended to be logged. The said map was discussed and approved, by the Malaita Executive, presiding over the timber rights acquisition hearing. The Malaita Executive will normally pass the map as presented by the licensee applicant, if there are no objections. That is what happened here. When the Executive approved the map, they knew nothing else about the land, in terms of custom. They do not know which tribe owns the land. They do not know custom stories about the land. They do not know taboo sites on the land. And importantly they do not know about the exact boundary and location of the land. They do not even know if more than one land can carry the same name in a locality. All these are matters of custom that only the appropriate forum can determine (Chief Panel - Local Court – Customary Lands Appeal Court and High Court on points of law only).
6. What I am saying here is defendants cannot safely rely on the timber rights process outcome and the consequential concession map to say that Aufalisi is inside of Maena Tribal Land and therefore part of the licensed concession map lands. The only safest place to make a pronouncement on which land is which and which tribe owns which land is the Chiefs Panel, Local Court and Customary Lands Appeal Court. Making pronouncements on customary land issues like ownership, tribe, boundary, taboo sites, custom stories etc are matters for the Chiefs Panel to lawfully deliberate and conclude on, not the Malaita Executive. I am not alone in this interpretation. The same was succinctly put by the Court of Appeal in Simbe as follows: -

“It remains true to say that in making a determination for the limited purposes of s.5 C (3) it is no part of the area council (now provincial executive – my distinction) to decide questions of ownership of customary land in a way that is either binding or final in effect. It is one of the features of the statutory procedure under Part IIA that an area council is a tribunal and not a court of record or indeed a court of any kind whether of customary or common law. It has long been recognised that its determination gives right to no guarantee that the contracting customary owners are the true owners.”^[3]

7. So here I will go by the deliberations and conclusions of the Chiefs in West Kwaio and not the Malaita Executive - who deliberated and concluded on the disputed portion via the timber rights hearing determinations and the licensed concession lands/map. The Chiefs of West Kwaio right through to the MCLAC have deliberated on the Aufalisi dispute and made the conclusion that Aufalisi is a portion of land within the TCL, and not Maena Tribal Land. That evidence will not change at trial because there is no pending appeal from the MCLAC decision. Therefore, there is no further issues to go to trial, in terms of trespass into Aufalisi (which is inside of TCL) – trespass being the material fact in this dispute. When there is no issue for trial, between the parties, on this material fact, I can terminate the matter early via summary judgment^[4]. This also means that the defendants do not have any real prospect of defending the claimant’s claim^[5] for trespass into Aufalisi situated inside of TCL.
8. Court is satisfied to enter summary judgment, because claimant produced clear evidence that Aufalisi is a portion of land within TCL, not Maena Tribal Land. It means Aufalisi belongs to the claimant’s tribe/clan. That is the land defendants trespassed into by their mistaken belief that Aufalisi is a portion inside of Maena Tribal Land and that defendants can lawfully log inside. I repeat again Aufalisi is a portion of land inside of TCL. And defendants cannot log inside it. It was a mistake that defendants relied on a timber rights hearing determination which cannot by law give a binding and final conclusion on customary land ownership. Only the Chiefs can. This portion is not the same land called Aufalisi in the concession map lands. Defendants have trespassed into Aufalisi that is inside of TCL according to the Chiefs or MCLAC binding and final conclusions.

Conclusion and Orders

9. Consequently, I will grant the core reliefs sought in the claim filed on 23/12/2019, as follows: -
   • 9.1 Defendants, their agents, contractors, servants and assignees are permanently restraint from entering, re-entering and undertaking further logging activities on Aufalisi within TCL.
   • 9.2. Declaration that defendants have trespassed into Aufalisi within TCL and carried out illegal logging therein.
   • 9.3 Damages for trespass and environmental damage to be assessed.
   • 9.4 Cost against defendants to be assessed if not agreed.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] The said Chief’s Panel decision was dated 24^th November 2019.
^[2] The said MCLAC decision was dated 11^th November 2020.
^[3] Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 (9^th February 1999) – at paragraph 8.
^[4] Rule 9.66.
^[5] Rule 9.57.