HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 148 of 2006

SIKUA ASERI AND DAVID RUSA

v

UGHELE RAZO ASSOCIATION, ASERI HARRY 
AND KALENA TMBER COMPANY LIMITED

Date of Hearing: 16th August 2006
Date of Judgment: 10th May 2007

G.K. Suri for the Applicant /3rd defendant
A. Nori for Respondent/Plaintiff

JUDGMENT

Motion to strike summons of the plaintiffs seeking declarations confirming a determination of the Munda House of Chiefs of land ownership of Sabere Vuvure customary land

Brown, J: By the statement of claim dated 18 April 2006, the plaintiffs say that the Sabere Vuvure land was determined by the Munda House of Chiefs on the 12 February 2005 to be that of the Sabere Vuvure tribe represented by them.

By the failure of Aseri Harry to appeal the Chief’s determination, the plaintiffs say that the 2nd defendant may be seen to accept the Chief’s decision. The Chiefs also ruled that the Ugehele Razo Association did not have the authority to represent the Sabere Vuvure Tribe or to sign a timber rights agreement with Kalena Timber Co. Ltd. (for that a "timber rights" agreement was reached on the 6 December 1988 between trustees, representatives or landowners of particular places named in the agreement; some 9 in all of the one part and the company of the other part as "the logger").

The statement of claim further alleged that the Association had previously claimed to own the land and had entered into the timber rights agreement with the company. Further, it was alleged that Aseri Harry purported to represent the Sabere Vuvure tribe on the Board of the Association when he was not authorised to do so.

Hence, by virtue of the Chief’s ruling, the timber rights agreement entered into between the 1st and 3rd defendants does not bind the plaintiff’s tribe.

On the 18 July 2006, an appearance was entered for the 3 defendant, Kalena Timber Co. Ltd., and on the 3 August 2006. Mr Suri, for the Company, by Notice of motion sought to strike out the statement of claim for that this court had no jurisdiction to entertain proceedings of this nature and in the alternative an order that the company be permitted to file its defence, although out of time.

There has been no appearance of the 1st or 2nd defendants, although I am satisfied they have notice of the proceedings.

Various affidavits were read by both the plaintiff’s and the 3rd defendant company on the motion. Before coming to the factual matters raised by those affidavits, I proposed to touch on earlier proceedings which became the subject of an appeal to the Court of Appeal from a decision of the former Chief Justice refusing to strike out proceedings brought by Aseri Harry, one of the signatories to the logging agreement, who was seeking to terminate the agreement in terms of clause 30 (for that the company was in default under the agreement) where the Court of Appeal upheld the Chief Justice’s refusal to strike.

The proceedings before the former Chief Justice had a chequered history. It appears they were originally commenced in 1993 but because dormant until 1999 when the company, with the support of two others (apparently signatories to the agreement as "trustees, representatives or landowners") sought to strike out the proceedings, (not on the ground of "laches" for despite the earlier commencement of the action, logging had long since resumed before the motion to strike) on the grounds that, the agreement having been entered into jointly, valid proceedings required all 9 signatories to join in the action (not just Aseri Harry severally) or, (had the other landowners retained their respective separate interests in the land and timber) was it incumbent on Aseri Harry to join as defendants all other dissenting trustees signatories, unwilling to join as co-plaintiff’s.

The Court of Appeal found that, on a proper reading of cl. 30 of the agreement, the power conferred by cl. 30; "is exercisable by each landowner who signed the contract and may be exercised without the concurrence, and even against the dissent, of the other parties to the contract. The promise by the first defendant company in cl. 30 is, by its terms and in its context, several and not joint in its effect" and later; "on the view that we have formed of the proper interpretation of cl. 39 there is not place here for the rule that one of a number of trustees is bound to join as defendants all other trustees who are unwillingly to join as co-plaintiffs. The plaintiff does not seek to litigate any question affecting money or property the subject of a trust for other landowners"

(Harry v Kalena Timber Co Ltd Court of Appeal judgment dated 19 April 2000, at 8).

A rationale for Kalena Timber Co. Ltd’s dealing with 9 individuals when taking a licence to log a particular parcel of customary land was described in the Court of Appeal judgment at 7 

"In short, the whole tenor of the contract presupposes, as Mr. Sullivan for the appellants himself confirmed, that each tribe or group was intended to retain the pecuniary benefit of the logs produced by felling and extracting timber from their own particular area of land. It would no doubt be possible for a logging company to enter into a distinct and separate contract for logging each area of land owned or occupied by a particular tribe or group of people. Doing so in a patchwork and spasmodic fashion would, however, almost certainly be less economical than felling and extracting trees progressively and in a systematic way over a much larger area. Moreover, when the time came to make royalty payments, the logging company would be faced with the administrative burden of making frequent small payments to numerous different groups of people or individuals. Instead, under the procedure described in some of the material in the appeal record, what was done here was to establish an association with a board of trustees to receive and distribute the payments to the various people or individuals entitled to receive them. By that means, the trustees were able to give, and the defendant company to get, a good receipt for royalty payments made under the contract.

It was no doubt essentially for that limited purpose that the landowners and representatives who signed the contract on behalf of their respective peoples were designated in it as ‘trustees’. That was evidently the function Ward CJ had in mind in Allardyce v A-G [1988-89] SILR 78 at 97, when his Lordship said:

‘Any persons so named who sign the agreement will be the people who receive the payments as representatives of their clan or line. As such they area clearly in a fiduciary relationship and a constructive trust is set up. Whilst their position derives from customary rights, the representative rights which they have to sign such an agreement and to receive the payments are entirely statutory’.

The Court of Appeal succinctly stated the nature of the trustee obligation in logging cases where the logger has contracted with a landowner was one who "assumes the character of trustees on receiving from the defendant company a royalty payment for which he is bound to account to others, whether according to customary law or otherwise"

It is this obligation to account which is the primary issue which must ultimately fail the plaintiffs, here, for this court cannot determine those entitled, by custom to a share of such account.

The flaws in the plaintiff’s case in its statement of claim are these-

"Chiefs" means chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute;" (Local Courts Act s. 11).

The defendant company, by affidavit of Belo Mulesae, of Ughele Village, Rendova (a village about the area of customary land the subject of the felling licence) clearly raises the fact that the members of the House of Chiefs presuming to adjudicate on the landownership issue are not from Rendova.

Abi Mulesae also of Ugehele Village was one of the 9 persons who signed as representatives of landowning groups, the agreement on the 6 December 1988. (He signed as Abusae Mulesae of Buruku, Ughele). He says he signed on behalf of Momoe tribe, which presumes the right in Momoe tribe to grant timber rights to Kalena Timber Co. Ltd. In 1988 and "therefore it is important that Sikua Aseri, Tamana Asery and Aseri Harry must sue our tribe which granted timber rights to Kalena on the 6 December 1988. I do not know the reason for naming. Ughele Razo Association in this case, when it was not a party to that KTC logging agreement. I know that this Ughele Razo Association was formed by landowners who have resided outside of Rendova Island but who would like to be recognized by the Ugehele Moka Association. This Ughele Moka Association was formed merely to administer and manage the business affairs of all landowners within Ughele Moka region. Even Ughele Moka Association did not grant timber rights to Kalena Timber Co. Ltd."

The Plaintiffs have not satisfied me that the Association was a party to the logging agreement as alleged in the statement of claim, rather the balance of evidence is that recognised by the Court of Appeal; that evidenced by the agreement itself by its recitals (set out above by the 9 signatories claiming as "trustees representatives or landowners") and made plans by Mr. Ali Mulesae, one of the signatories of the tribal representatives purporting to grant the right to log.

The next relevant issue is that raised by Abi Mulesae, at para. 5 of his affidavit, where he says that Sikua Aseri is the blood son of Aseri Harry. Tamana Aseri is also a blood son of Aseri Harry.

The father/son relationship raises a presumption of a common tribal lineage which rather suggests the plaintiff’s claim for a declaration that the agreement does not bind his tribe aka his fathers tribe is without foundation when the agreement has not been impugned before in this fashion since its inception in 1988.

But that presumption of tribal lineage is rebutted by Abi Mulesae for he says Sikua Aeri and Tamana Aseri’s mother is from Kolombangara Island, not Roviana. David Rusa’s grandmother who begat Rusa’s mother is from Sasavele as well. Roviana peoples of that area follow a matrilined system so that, again if the presumption of tribal allegiance is displaced then these plaintiffs have not satisfied me on balance, they represent a tribe or landowners subject to the felling agreement. If they have rights, then it is, as Abi Mulesae says, an inter family dispute, and on balance whilst the father lives, his status, without any thing further, would be greater than his children. That issue was not for the Munda Chiefs to decide, so their purported finding on landownership has no effect on the standing or otherwise, of Asri Harry’s right to contract as a landowner representative in 1988. The presumption must be that 20 years ago, these named plaintiffs may not have assumed the power to bind by written agreement, others of the tribe, a power exercised by those 9 in 1988.

For these reasons, I am not satisfied the plaintiffs have standing to impugned the agreement made by their forebears in 1988. For that would be the underlying effect of the declarations, if made.

I refuse to make orders as sought. The summons is dismissed. The plaintiffs shall pay the 3rd defendants costs

THE COURT