Labere v Kalena Timbers Company Ltd [2022] SBHC 38; HCSI-CC 211 of 2000 (11 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Labere v Kalena Timbers Co. Ltd
Citation:
Date of decision:	11 May 2022
Parties:	John Labere and Anges Votaia v Kalena Timbers Company Limited
Date of hearing:	8 October 2021
Court file number(s):	211 of 2000
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Application for joinder of grantors to timber rights hearing granted. 2. Cost of this hearing is to be paid by the Claimants to the Defendant.
Representation:	Mr. I. Kako for the Claimant Mr. G. Suri for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act S 12 (1) (a), S 11
Cases cited:	Rupakana v Vozoto [2016] SBHC 215

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 211 of 2000

BETWEEN

JOHN LABERE AND ANGES VOTAIA
Claimants

AND:

KALENA TIMBERS COMPANY LIMITED
Defendant

Date of Hearing: 8 October 2021
Date of Ruling: 11 May 2022

Mr. I. Kako for the Claimant
Mr. G. Suri for the Defendant

RULING ON APPLICATION FOR JOINDER

Faukona DCJ: By consensus the Counsels agreed to proceed with the application for joinder, whilst the application for determining of preliminary issues is adjourned. The application for joinder was filed by the Defendant on 15^th June 2021. Basically for those who grant timber rights over the whole of Rendova Island, excluding Razo customary land, located from ovuizu to pike in the Southern part, is to be party to this proceeding.

Facts.

2. The Rendova Area Council met on 11^th April 1989 to consider the application by the Defendant for timber rights.
3. The minutes of the Area Council meeting stated there were seven tribes attended and claimed ownership. The seven tribes agreed to grant timber rights were, Haforai Irureqo, Qai, Tive, Teborana, Hiriro, and Oreasi.
4. The Claimants describe the land they own as Harero which was not mentioned during the timber rights hearing and a separate land from Teborana.
5. The grantors of the timber rights say that Harero is a portion of bigger Teborana Customary land.

The Claim.

6. A writ of Summons (claim) was filed on 15^th September 2000. The relief which are yet to be resolved is the payment that the Defendant would pay the Claimants’ damages for trespass and conversion of trees.
7. Reliefs one and two had been dealt with whereby which the Defendant is still restraint from conducting further logging operation on Harero customary land.
8. Where a claim was based on damages for trespass and conversion of trees, the ownership of the customary land must be ascertained, in particular where there is no previous decision by the land tribunals or courts in respect of that land. In the current case that is exactly the position.
9. To ascertain the ownership issue the Claimant referred the case to the Roviana Chiefs to determine whether Teborana land and Harero customary land were two separate lands.
10. The Roviana Chiefs’ determined that Teborana land is a separate land from Harero land.
11. In comparing the boundaries of Teborana land as stated by Mr. Mathew Alepio during timber rights hearing, and the boundaries of Harero land in the statement of claim are almost the same.
12. The boundaries in the claim start from Haivo River to Haohao River at the coast, then along ngado Hae River to Lake Rano, then to Haohao River from the inland. That is in respect of Harero customary land which the Claimants’ claim.
13. At the timber rights hearing reflected by the Area Council minutes, dated 11^th April 1989, Mathew Alepio represented Teborana tribe and Mr. Mark Labere represented the Haforai tribe.
14. On paragraph 6 of the minutes of the Area Council Teborana boundary as stated, starting from haivo river, follows to ufufau river, then followed it to ngado river, then follows it to verirou river, then to roso river and then followed the beach to moreeozi, then to isarao passage then to bongini then goes up to oroova ao hill to lake rano then to iriviri and then to haivo the point of commencement.
15. The common names in the boundaries are Haivo River as a starting point, Ngado River somewhere in the middle, Lake Rano and then back to Haivo River.
16. It would appear the major boundary marks are the same in three points however, the minutes recorded more boundary marks than what was claimed by the Claimants.
17. Two conclusion can be reached. One that it is the same land with more descriptive of boundary names by the minutes. Or that the hararo land is part of Teborana therefore, has loss descriptive of its boundary marks and names. In any event if there is a boundary issue then it is a life issue between Teborana tribe and Harero tribe. That has to refer to proper tribunal for determination.

The Court cases and decisions.

18. I noted there were two Chiefs hearing and decisions being made and one Local Court decision.
19. I noted the Roviana House of Chiefs had determined, in ex-parte, that Harero customary land was a separate land from Teborana customary land. However, with the boundaries as describe above, it’s definitely not. Both lands have one (1) common boundary mark at a point of commencement which ended at the same point. In between are two other common boundary names
20. So, at a general glance, Harero land must be part of Teborana land or vice versa. Thus the decision by the Chiefs which was confirmed by the Local Court, therefore was at stake or questionable. Not because of their views as determinants but also a decision made in the absent of the other party.
21. The second point relates to jurisdiction. Had the Roviana Chief jurisdiction to hear and determine a land situated on Rendova Island?
22. The requirement in S.12 (1) (a) of the Local Courts Act states that, “no Local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that the parties to the dispute had referred the dispute to the Chiefs.
23. The definition of Chiefs is outline in S.11 of Local Courts Act. It states, Chiefs means Chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognized as such by both parties to the dispute.
24. The question to pause, has Roviana Chiefs had jurisdiction to hear a customary land situated at Rendova Island? I noted the second Chiefs hearing was conducted by Rendova House of chiefs. In jurisdiction wise that supposed to be within the Local Court Act.
25. Therefore, though this issue is not debated in Court but it is of great importance because the Claimant is relying on the Roviana Chiefs decision.
26. On another front, the Roviana Chiefs in fact conducted an ex-parte hearing at the end thereof gave its determination. The Courts are trying to discourage ex-parte hearing by the Chiefs. To resolve a dispute related to customary land both parties must be present. That is the intent of the Local Court Act, applying traditional means of resolving the dispute. Of course that can only be done where both parties are present.
27. Noted as well is the fact that the Claimants, who won the case in the Chiefs hearing, also referred the case to the Roviana Local Court which confirmed the decision by the Chiefs.
28. In a similar factual circumstances was the case of Graham Rupakana V Jacob Vozoto and others^[1];
    • “This matter is a referral from the Batava Council of Chiefs. During preliminary, issues raised by the plaintiff that all means of settling the disputes has been exhausted therefore he lodged an appeal to the Local Court. Since the Defendant neglects the decision by the Batava Council of Chiefs, this Court also finds out that it is not procedural as the winning party to lodge an appeal to the local Court. I see as statutory function that the aggrieve party shall lodge an appeal to the Local Court. However, it did not happen in this case. That the Defendant failed to do so by lodging an appeal to the Local Court. And it is not procedural for the winning party to lodge an appeal. Therefore, this appeal is dismissed, and the decision of Batava Council of Chiefs is upheld”.
29. Justice Brown’s decision was appealed to the Court of Appeal but was dismissed.
30. In this case, I do not intend to hear and review the decision of the Chiefs, but it is important that the Local Court Act is complied with. And it is not procedural to resolve a land dispute by an ex-parte hearing.
31. In any event I do not think the Claimants should rely on the Roviana Chiefs decision and the Local Court decision because the method they employed to resolve customary land dispute is not procedural and one which is not prescribe by the Local Court Act. In other words the procedures adopted are not proper and procedural.
32. So the only decision that I regard as valid and useful for the purpose of this case is the decision made by the Rendova House of Chiefs if it was an inter-party hearing or otherwise.
33. This claim and litigation was derived from logging operation on customary land. Any logging wishing to enter into customary land, must signed an agreement with the landowners. In logging operations, a Standard Logging Agreement was designed and it is to be signed between the customary landowners and the Licensee who will actually fell trees for export.
34. That would mean, it is the land owners by authority of being determined as a grantor or trustee in timber rights hearing, and by virtue of the SLA have the rights to invite logging activities to be conducted within their customary land.
35. Where a claim for trespass, damages and conversion of trees was filed against a company which felled trees in a customary land, excluding the grantors of timber rights, will surely incompletes the case.
36. Therefore, it is logic in all legal sense that both the grantors and the logging company must join as parties to be able to answer the claim of trespass and damages. Without the grantors, the Defendant cannot answer the issues of customary ownership, boundaries, and any question related to how the right of ownership was acquired.
37. From the analysis, it is precise and concise that the question of ownership is still at stake and open, and the Claimants reliance on Roviana Chiefs decision and Roviana Local Court decision is also at stake.
38. The only logical conclusion to pave the way for future dealing with the ownership issue is to include the grantors of Teborana customary land, where necessary grantors of Hiriro customary land to be inclusive and joint as a party.

Orders:

1. Application for joinder of grantors to timber rights hearing granted.
2. Cost of this hearing is to be paid by the Claimants to the Defendant.

The Court.
Faukona Rex
Deputy Chief Justice.

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^[1] [2016] HCSI – CC no. 35 of 2016 (1 December 2016).