(Kabui, J):
By Summons filed on 2nd May 2001, the 1st Defendant
seeks the following Orders-
2. & That the Plaintiff,
his agen agents, relatives and/or his servants are restrained from entering the 1st
Defendants concession area; and
3. &nbbsp;& That unless less the
Plaintiff within 7 dn 7 days file in Court his intention to proceed, his Writ and
Statemf
Claim be struck out; and
class="Mss="MsoNormal" style="text-indent: -28.5pt; margin-left: 64.5pt; margin-top: 1; margin-bottom: 1">
st Defendants Costs
5. p; Any fury further
oran>other Order the Court ourt deem fit
to make.
The Facts
rd
Jan January 1997 against the 1st and 2nd Defendants. The
Plaintiff represents the Kongu Ngaloso tribe on the Island of Gatokae in the
Western Province. The 1st Defendant is a local Company owned by members
of the Lupa tribe. The 2nd Defendant is the Contractor engaged by
the 1st Defendant to extract timber for export from Lupa Land. On
the 16th June, 1997, Awich, J. granted an interlocutory
injunction against the 1st and 2nd Defendants
restraining thng them from constructing road or conducting logging in the areas
described as Gauve, Gusala, Botuana,
Gulimu, Chokumeka, Punala, Imusu and the land mass contiguous to them. The injunction was to reto remain in force
until the
boundary in
the
dispute land had been determined or until further
order of the Court. The Plaintiff took his case to the Marovo Chiefs
on 3rd
December 1997 and obtained a determination from them in his favour. However,
the Chief’s hearing and determination took
place in the absence of the
representatives of the 1st Defendant. It would appear that the 1st
Defendant refused to attend the hearing on 3rd December 1997. The
dispute was referred to the Local Court in March, 1998. The court fee had
been paid but no hearing
date has yet been set due to lack of funding for
the Local Court in the Western Province. The Kongu Ngaloso Timber Company
had earlier on 15th April 1996 obtained a Milling Licence which
expired on 15th April 1997. On 12th March 1998, Marovo
Area Council met to consider an application by Kongu Ngaloso Timber Company
for Timber rights in the
area from Seko to Patusora. The Marovo area council
agreed that the persons entitled to grant timber rights were Simeon Nano,
Mendana Panda and Pudi Kitu. An appeal by Bexter Robert had not been
processed because by virtue of Legal Notice No:
34 of 1998, all Area
Councils in Solomon Islands had been suspended by the Minister as from 17th
March 1998. In the mean time, the 1st Defendant entered into a
technical, Management and Marketing Agreement on 13th November
2000 with Golden Harvest to harvest trees in the Concession area under the 1st
Defendant’s Logging Licence No: TIM 2/83 issued by the Government.
<
The 1st Defendant’s
Case
The 1st Dant is
now ready to move into its Concession area under its Licence No: TIM 2/83
with the support of Golden Harvest
under a new Agreement signed on 13th
November 2000. It wants the injunction imposed by Awich, J. on 16th
June 1997 discharged on the ground that the Plaintiff has done nothing to
prosecute its case for the determination of
the boundary in dispute. It
relies on the decision of the Marovo Local Court in 1982 as confirmed by the
decision of
the Western Customary Land Appeal Court in May, 1985. The effect
o these decisions is that Randley Riringi was the owner of
Guave Point.
It also relies on the
determination of the Chiefs dated 21st February 2001 which
rejected the Plaintiff as Chief and owner of the area of land between Isu to
Seko.
The Plaintiff’s Case
Thintiff does not dispute
that the 1st Defendant is in possession of Licencecence No: TIM 2/83
but says the Licence covers only Lupa 1 and 2 and does not extend into
Kongu
Ngaloso Land. He says the boundary of Kongu Ngaloso Land commences at
Patusora to the south-west and stretching
north-east to Mt Mariu and north
to Tetekarovo. He says the Local Court decisions in 1982 and the Western
Customary Land
Appeal Court in 1985 were confined to Guave Point only and
does not cover the whole of Kongu Ngaloso Land. He says the existing
injunction must remain in place pending the resolution of the boundary by
the Marovo Local Court.
Finding by the Court
The starting point must be
Awich, J’unction on 16th June 1997. The injunction coversovers
land
areas described as Guave,
Gusala, Botuana, Gulimu, Chokumeka, Punalo, Sosore, Imusu and the land mass
contiguous to them.
These areas of land were set out in the map in Annexure
1 attached to Mr. Nano’s affidavit filed on 3rd May 1997. The
same areas of land were identified also in Annexure A attached to Mr.
Runialo’s affidavit filed on 30th May 1997. These areas of land
are inside the area of land won by Randley Riringi in 1985 in the Western
Customary Land
Appeal Court. There is also Ngaloso Island. The area of land
in yellow colour is disputed by the Ngaloso tribe. The area in
blue colour
is the Lupa Concession or the so called one-third Concession. The maps
showing these areas of land are identical
except that the map produced in
Mr. Nano’s affidavit did not have a blue shaded area as is the case in Mr.
Runialo’s
map. This difference has no significance to the outcome of this
case. The existence of the areas of land covered by Awich,
J’s injunction
has been accepted but their boundaries are still in dispute. The dispute
over the boundaries still remains
unresolved. It is not disputed that the
Marovo Area Council determination in 1995 did exclude the land claimed by
the
Plaintiff. The result was that only one – third of the whole area
originally applied for by the 1st Defendant was determined as
Lupa Land. The remainder of the land is disputed as to ownership in custom.
That position
still remains today. It is interesting to note that at page 2
of the Chiefs' determination in 1997, members of the Lupa tribe did not
attend the Chief’s hearing. In fact, the Lupa tribe was represented
by
Randley Riringi who did not attend though he was said to be aware of the
date of the hearing. However, it would appear
that subsequently either
Radley Riringi or member of the Lupa tribe referred the dispute to the
Western Local Court in
March, 1998 for hearing. Under section 12 of the
Local Court Act (Cap. 19), the aggrieved party that fills in Form 1 and
produces it to the Local Court. The fact that the dispute has not been dealt
with by the Western Local Courts since then
was due to lack of funding from
the Government. That is a matter beyond the control of the parties to the
dispute. Resolving
the dispute in the Local Court is the only way forward
and as of today that prospect of doing so
in the
Local
Court soon cannot be now achieved as yet because the Local Court
cannot sit to hear cases for lack of
funds from the Government.
There is
another point. Both parties have not produced in Court the Licence No: TIM
2/83 nor copies of Form 1, Form 2
and Form 3 so as to ascertain the extent
of the 1st Defendant’s Concession area constituting the so called
one third of what the members of the Lupa tribe call Lupa land. The
nearest
one gets to certainty is the indication that the 1st Defendant
had applied for a much larger area of land originally put at 1,663.3
hectares but subsequently reduced to 332.6
hectares of land (see page 3 of
the Minutes of the Timber Rights Hearing by the Marovo Area Council on 18th
October 1995). But as far as the map produced by Mr. Runialo attached to his
affidavit filed on 30th May 1997 is concerned, the blue shaded
area, called the Lupa operation area is
clearly miles away from the area of land
claimed by Mr. Riringi which
encompasses the plots of land
claimed by the Plaintiff. What appears to a photocopy of the
same map but
without the shaded blue area was also produced by Mr. Nano attached to his
affidavit dated 30th May 1997. If these two maps are correct,
Awich, J.’s injunction on 16th June 1997 does not cover the 1st
Defendant’s Concession area shaded in blue. If that is so, the 1st
Defendant need not come to the Court in the first place for what appears to
be the Concession area is outside the areas
covered by Awich.J.’s injunction
on 16th June 1997. However, it might be that logging might have
been allowed by Mr Riringi into his area of land within which plots
claimed
by the Plaintiff lie for Mr. Riringi is a member of the Lupa tribe. If this
is indeed the case, it is obvious
that Awich, J’s injunction must still
continue to protect the interest of the Plaintiff and his Kongu Ngaloso
tribe.
In fact, the 1st Defendant’s Defence filed on 9th
July 1997 alleges that it was Mr Riringi who gave permission for heavy
machines to be landed at Gulumu being part of
Gusale owned by Mr. Riringi.
The clearing and road construction was permitted by Mr. Riringi as part of
the 1st Defendant’s logging operation in it’s Concession area.
The 1st
Defendant cannot enter into the plots of land claimed by the Plaintiffs
until the Local Court has sorted the dispute over
the boundaries of the
plots claimed by the Plaintiff and the land mass contiguous to these plots.
I think it is very
risky to discharge Awich J’s injunction granted on 16th
June 1997. That injunction will continue until further order of the Court.
As regards the 1st
Dent’s request for an injunction against the Plaintiff, I do I do not think
I can grant it. The evidence upon which that
request is made is both hearsay
and slim. If there is an urgent need for such an injunction the 1st
Defendant is at liberty to come back to the Court later for such an order
based upon the relevant and sufficient evidence.
On the whole I am reluctant
to grant the 1st Defendant’s application. The
1st Defendant’s
application is therefore refused. Each party will pay their own costs.
(F.
O. Kabui)
Judge
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