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Benjamin v Gandley Simbe [2004] SBCA 14; CA-CAC 015 of 2004 (11 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Civil Appeal No 15 of 2004
HC CC No 205 of 2004

PARTIES:

HARRISON BENJAMIN AND PETER MADADA
(first appellants)

EAGON RESOURCES DEVELOPMENT COMPANY (SI) LIMITED
(second appellant)

V

GANDLEY SIMBE AND NATHANIEL MELA
(respondents)

CITATION: Benjamin & Ors v Simbe & Anor

DIVISION: Court of Appeal
PROCEEDING: Civil Appeal
ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 11 November 2004
DELIVERED AT: Honiara
HEARING DATE: 8 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JJA

JUDGMENT OF THE COURT

ORDERS:

1. Appeal dismissed

2. Costs of the appeal and of the proceedings before the learned judge are to be costs in the cause

COUNSEL: G Suri for the appellants
P Tegavoda for the respondents

[1] THE COURT: In Civil Case No 205 of 2004 the Plaintiffs claim as representatives of the Dali tribe that the tribe is the owner of Nola land in accordance with custom. They say that the first defendant representing the Volekana tribe which claims customary ownership over Nola customary land and also represent persons who have been held by the East Choiseul Area Council as being entitled to grant timber rights over the said land on behalf of the tribe. The second defendant “Eagon” signed a timber rights agreement in February 1996 with the first defendants’ tribe and obtained a logging licence over Nola land. The plaintiff Gandley Simbe in 1997 applied for an injunction to restrain Eagon from felling and extracting logs on the land. Such injunction was refused on the ground that the Court had no power to deal with customary land except to assist the local Court and the area Council in their determination of land ownership.
[2] On 30 September 1999 the Chiefs granted as against the first defendants and the Volekana tribe a determination of ownership in favour of the plaintiffs.
[3] The plaintiffs allege that on and after 18 May 2004 Eagon entered on the land and began the felling and extraction of trees and merchantable logs on Nola land and in these proceedings claim as against the first defendant:

(a) a declaration of ownership over Nola land as determined by the Chiefs on 30 September 1999; and
(b) an injunction to restrain the Volekana tribe without the consent of the plaintiffs from dealing with Nola land and from allowing Eagon to fell timber on the Nola land.
The plaintiffs also seek an injunction restraining Eagon from carrying out logging activities without the plaintiffs’ consent.

[4] Until June 2004 the Hon Mr Justice Kabui granted an ex parte injunction against the first defendant from dealing with Nola land and in particular from allowing Eagon to take logs from that land. As against Eagon the learned judge ordered that it should not enter Nola land for logging nor carry out “any activities whatsoever whether related to logging or not within any of the land covered by the Chiefs’ determination dated 30 September 1999 from Kozo stream to Lalaguti Stream.”
[5] The Defendants by summons dated 17 June 2004 applied to set the injunctions aside. They contended that the Chiefs’ decision of 30 September 1999 was inconsistent with an earlier Chiefs’ decision of 16 February 1999 which approved that “the Defendants have the right to cultivate the land that was given to Qilavisu as her land ... that situated from Kozo Stream to Vure stream to upward and reach Quabaugara.” That land in the first decision was or was part of block 3 in maps produced to the Court. The second decision dealt with blocks 3, 2 and 1. The Defendants say that the second decision could not deal with the land from Kozo stream to Vure Stream covered by the first decision. There is moreover a dispute as to whether the first decision land was part of a dowry (“Luabani”) given to the Dali tribe by the Volekana tribe, which the Defendants deny. At the Chiefs’ hearing prior to the first decision and at the September 1999 hearing much evidence was given about the genealogy of the tribes and the descent of the land in question. Eagon contends that its logging is not carried out on Nola land but on Vure or Volekana land.
[6] The first Defendants say that they lodged an appeal with the local Court against the first Chiefs’ hearing, but that could not proceed because of lack of funds, whereas the Plaintiffs began another case before the Chiefs to rectify or to reverse the February 1999 decision.
[7] In the proceedings considerable evidence has been filed in affidavits from both sides dealing with the ownership of the land and with tribal customs.
[8] The application of 17 June 2004 to set aside the ex parte orders came before Kabui J on 30 July 2004 and he refused the application and continued the ex parte order.
[9] Before the judge the Defendants, the Volekana tribe, contended that the Chiefs’ decision of 16 February 1999 was binding on the parties so the relevant land belonged to the Volekana tribe and the second decision was irrelevant. If they wanted to challenge the first decision the Plaintiffs should have gone to the Local Court which they had not done.
[10] The Plaintiffs contended that the second hearing by the Chiefs was a continuation of the first and both decisions were valid so the relevant land belonged to the Dali tribe. The Chiefs were concerned with the ownership of customary land as they were entitled to be and not with Timber rights.
[11] The judge noted that if the Volekana tribe wished to say that they owned the relevant land or that the second Chiefs’ determination was invalid then they could do so, but the dispute which was moved into the Local Court after the hearing on 16 February 1999 was still pending. “The second Chiefs’ determination in effect dissolved what the Volekana tribe is claiming on Volekana land 2.” That tribe should have challenged the second Chiefs’ decision in the local Court.
[12] He held that on the basis of the second Chiefs’ decision the land is now owned by the Dali tribe. The fact that the first Chiefs’ determination was not discussed at the application for the ex parte injunction did not affect the order which he had made.
[13] The Defendants appealed that decision to this Court. They contend that the judge erred in not holding that the second Chiefs’ decision was invalid since the Chiefs had no jurisdiction to vary or review their initial order. Both decisions could not be binding. Moreover since the plaintiffs did not disclose the first Chiefs’ decision at the ex parte hearing the injunction should be set aside.
[14] The plaintiffs’ response is that the Chiefs’ first decision was only to recognise rights as owners “for the purposes of cultivation”. Although the Nola land may originally have been given to the Volekana tribe as Luabani for a woman, the Chiefs in the second hearing found that the right to Luabani no longer existed in custom “because of the denial of the first defendant of the Dali tribe as the giver.” The findings of both Chiefs are proper and those findings as to customs are within the powers of the Chiefs to make under section 12 of the Local Courts Act.
[15] In the opinion of this Court the matters of custom raised in the dispute between these parties fall to be dealt with in the Local Court and by the Chiefs as the judge himself obviously considered. It would have been appropriate for the first Chiefs’ determination to be mentioned on the ex parte application but the judge was entitled to decide that this failure did not affect his decision that the interim injunction should be granted on the basis of the second Chiefs’ decision. This appeal is therefore dismissed.
[16] This Court realises that financial difficulties were largely responsible for the fact matters have not proceeded in the Local Court but in view of the amount of land in issue in this case it is important that every effort should now be made without more delay to resolve the matters within the jurisdiction of the Local Court and if necessary by the Chiefs.
[17] The appeal is dismissed: the costs of the appeal and of the proceedings before the learned judge to be costs in the cause.