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Alemaesia v Agola [2009] SBHC 2; HCSI-CC 377 of 2007 (3 March 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 377 of 2007

BETWEEN:

ANDREW ALEMAESIA, HAROLD GALAFUNU MARTIN FAUMAURI and CHARLES MULEA (Representing both male and female members and descendants of Su’ubira Tribe)
(Claimants)

AND:

ISACC AGOLA, PETER DAUMAE, JOHN LEFO and CHARLES SUFIMAE – (Representing their tribe)
1st Defendants

AND:

ISAAC AGOLA, (Representing Timber Enterprises, The Licencee)
(2nd Defendant)

AND:

SUNRISE TIMBER ENTERPRISES LTD
(3rd Defendant)

AND:

ATTORNEY GENERAL as Representative of The Commissioner of Forest and the Malaita Provincial Executive)
4th Defendants

Date of Hearing: 1st December 2008
Date of Ruling: 3rd March 2009

D Hou for the Claimants
T Makario for 1st and 2nd Defendants
A Nori for 3rd Defendant
L Folaumoetui for 4th Defendant

RULING

FAUKONA J

This is an application by Mr Nori on behalf of the third Defendant. Counsels for the first, second and fourth defendants conceded to the application.

The application is purposely seeking an order to strike out the Claimants’ cause of action and discharge the injunctive orders granted by this Court on 4th July 2008. The basis for this application is one of want of jurisdiction and lack of locus standi. In other words, this is simply saying that the proceedings are frivolous and vexatious, and that no reasonable cause of action is disclosed, on that the proceedings are an abuse of court process.

Chronology of Facts

On 14th September 2004 an application per Form 1 was submitted to the Commissioner of Forests for consideration. On an unspecified date thereafter, notices were displayed in various villages in the area of the land concern. On 26th January 2005, a timber rights meeting was convened. On 28th February 2005 (date on Form 2), a certification of determination was issued and displayed. On 4th October 2005, there was an objection letter addressed to the Commissioner of Forests.

Despite issuant of certificate of determination, there was no appeal lodged with the Malaita Customary Land Appeal Court (MCLAC) within the period stipulated by Section 10(1) of the Forest Resources and Timber Utilisation Act. [FRTUA.]

On 7th October 2005 a Felling Licence No. A10437 was issued by the Commissioner of Forest to the 2nd Defendant authorizing him to enter, fell, extract and remove trees of economic value and be exported from the eleven blocks of customary land. Those lands are situated in Ward 26, Dorio District, Malaita Province.

It appears that two of those lands, Tolobo’o and Tofutori, being the subject of this dispute can be identified in Exhibit HG2 attached to Mr Gaiafura’s Sworn Statement filed on 27th June 2008 and Exhibit PD1 attached to Sworn Statement of Mr Daumae filed on 21st October 2008. The boundaries of Su’ubira land may appear differently on the maps but their location and position seemed to be the same.

On 30th July 2007 logging machines and equipment were landed on Su’ubira land, and constructed a log pond, a logging camp and a logging access road.

On 19th October 2007, the first Injunctive Orders were granted. On 28th January 2008 those Orders were extended, varied and enlarged as per paragraphs (ii) and (iii). On 18th March 2008, the Orders were further extended until further Orders. On 4th July 2008, the Orders were again extended with an Order discharging 3% frozen as exemplary damages. On 5th February 2008, first summons to strike out was filed. On 21st March further summons to strike out were filed. And eventually on 21st October 2008, an application to strike out was filed.

Noted as well that on an unspecified date, the issue of customary ownership of the Su’ubira land was referred to the appropriate Chiefs for determination. Until now the case remains pending. See Exhibit GF2 a note signed by Mr Founanau and Mr Ofo’ofo attached to Mr Felefula’s affidavit filed on 2nd October 2007.

Land Ownership Claim

Dealings with customary land for the purposes of development under the current Act does not bring about social harmony among the people, community, or even among members of the same tribe, instead spark of litigation, threat and at times physical confrontation. In this case, Waruda Timber Enterprises has acquired a felling licence which authorized it to enter Su’ubira customary land and to carry out logging activities, in particular the two blocks of land, among others.

The Defendants’ perspective is that the process has been completed, a licence had been issued and logging operation had commenced. A view very much contested by the Claimants.

The Claimants claimed ownership of Su’ubira land within which Tolobo’o and Tofutori lands are identified. Also claim representing Su’ubira tribe both male and female and deny that the 1st Respondents own Su’ubira land, but they are from Okona tribe.

On the other hand, the 1st Defendants claimed ownership of Su’ubira land as well, and that they represents the male tribe of Su’ubira; and that the Claimants were born female of Su’ubira tribe and hence has no power over the land.

Though both parties claimed Su’ubira customary land, and that both claimed to represent Su’ubira tribe, their versions as to the boundaries of the same land are quite not the same. The Claimants by paragraph 3 of further amended statement of claim narrated the boundaries. This boundary was denied by the 1st Defendants, see paragraph 4 of Peter Daumae’s affidavit filed on 8th November 2007. The maps the parties produced to the Court also appeared differently.

It is with no doubt that the nature of dispute concern customary issue of ownership which is a real issue and has yet to be resolved. The rationale for granting injunctive orders is to maintain the status quo until the issue or issues are finally decided by the Court. In this case a referral case has been filed with the appropriate chiefs to determine the ownership. Meantime the case is still pending.

Jurisdiction of the High Court to grant Injunctive Orders

Mr Nori argued that the course of action before the Court was an attempt to invoke the powers of this Court to exercise its jurisdiction, which in fact, does not have. He further submits that the timber rights processes had been completed; there was no appeal lodged with the MCLAC, and eventually a felling licence was issued. This court therefore lacks any jurisdiction to assume. Mr Hou argues otherwise and refers to numerous authorities from United Kingdom, Australia, Canada and Jersey (USA), and of course Solomon Islands, as to how jurisdictional issue had developed and flourished, and how courts in Solomon Islands effectively applying laws that had already developed in these jurisdictions.

Section 77 of the Constitution provides that the High Court has unlimited original jurisdiction to hear and determine any civil (for our purpose) proceedings under any law and such other jurisdiction and powers conferred on it by the Constitution or Parliament. Section 84 says, the High Court has jurisdiction to supervise any civil proceedings before any subordinate court and may make such orders etc, as it consider appropriate ensuring that justice is duly administered by such Court.

In Simbe’s[1] case the Court of Appeal said;

"The Jurisdiction of the High Court to grant an injunction in a case like this, however, is not unlimited. To the extent that a Local Court or Customary Land Appeal Court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunctions is restricted to injunctions aiding the exercise by a Local or Customary Land Appeal Court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the Local or Customary Appeal Court specifically invested by Parliament with the power to decide it. Pending decision of that dispute in the Local or Customary Land Court, proceedings in the High Court would ordinarily be stayed on appropriate terms. As it is, such a result can be attained indirectly by using the procedure of an injunction and staying the action discussed above."

The same sentiment was echoed in Veno and Young[2] where His Lordship Chief Justice Palmer said,

In so far as customary issues are enumerated in this judgment are beyond the jurisdiction of this Court, that the proper forum for dealing with such matters is before the Chief and the Local Courts, this Court nevertheless has power to grant relief by way of injunctions as an aid to the exercise by a Local Court or Customary Land Appeal Court in its jurisdiction to decide such disputes. Such injunctive relief is designed to facilitate the determination of ownership issue in the Local Court or the Customary Land Appeal Court..."

The Courts were actually saying that the High Court has no jurisdiction to entertain customary land issues but has power to grant injunctions to enable the Local Court and the Customary Land Appeal Court conduct their sitting to determine the ownership issues pending before them. This is not the same as determining the ownership issue by trial in the High Court, but a supervisory power to enable the subordinate Land Courts effectively determine the issues including any diverse matters which it thought to have come under it powers.

Again His Lordship, Kabui J, as he then was, in Sina v Matupiko[3] articulated that the High Court clearly has supervisory jurisdiction over subordinate Courts in ensuring justice is truly administered by subordinate Courts; and the same power can be invoked in Maneva Injunctions/Freezing Orders.

It is by the exercise of the supervisory powers over subordinate Courts, are to ensure that its processes are not abused. Mr Hou argued that this is good enough to ground an injunction to preserve the status quo of the customary land, and the same can be invoked in Maneva Injunction/Freezing Order to preserve use of money of the customary land from being dissipated before execution while the question of ownership is pending before the Land Courts including the Chiefs’ Forum.

The basis for Mr Hou’s argument is one of point of law. That the Chiefs, as one of public forums established by the Local Court Act, should accord the same benefit of supervisory jurisdiction by the High Court. It is quite complex, because in Simbe[4], Veno[5] and Sina[6] cases, the Courts did not actually mention the supervisory jurisdiction over the Chiefs’ process.

However, Mr Hou referred to Anjo[7] and Osiramo[8] cases which extend that supervisory jurisdiction to include and cover the chiefs. In Anjo’s case, Injunction Orders were granted to restrain entry on the balance of convenience, because the licence did not cover the Saqalele customary land, a fact not disputed. The Court of Appeal, however, endorsed and upheld the injunction restraining the appellants.

In Osiramo’s case, the dispute was in respect to the common boundary. In the latter part of 1999, the Defendant encroached into Arabala Kwarulilia land and constructed roads and felled trees for gain. The activities were done without the consent of the Plaintiff. The Court found there was no evidence to suggest that logging activity was continuing in the area of land under dispute. A Chief’s fee was paid by the Plaintiff to the Rade-Kwai Council of Chiefs so that the boundary dispute be sorted out in the Chiefs’ forum. Kabui J, on page 3 paragraph 3 said;

"This is to say, the High Court has the power to grant an Injunctive Order in aid of the exercise of the jurisdiction of a Local Court, as well as Customary Land Appeal Court excepting deciding ownership of customary land. In my view, I do not see any reason why the Chiefs in their adjudication role in customary land dispute should be excluded from the same benefit of injunctive orders by the High Court as they are also a forum created by Statute."

In Anjo’s case there was no dispute that the licence did not cover Saqalele customary land, it is a clear case of trespass, an injunctive order is necessary to restrain entry into the land. The question of ownership, though may be raised, is not relevant in rationalizing whether or not an interlocutory injunction including Maneva /Freezing Orders be granted. I agree the grant of injunction order warrant the circumstances of the case, on the balance of convenience, or as the justice of the case demand.

In Osiramo’s case there was no dispute that the parties owned adjoining lands with one common boundary. It was the common boundary that was the subject of the dispute. Until the Chiefs made a determination, no one would know whether the portion encroached into, was owned by the Plaintiff or the Defendant. In such circumstances injunction and Maneva/Freezing Orders were best and just in the circumstance of the case. Even if the Plaintiff won the case, nothing will affect the felling licence but damages will flow from it. Perhaps the same can be said in Anjo’s case.

In this case the parties do not claim to have owned separate lands but one and perhaps the same. There is no suggestion that the logging operation encroached into the Claimant’s land. The nature of trespass is quite different from the above two cases. What apparently transpired is that after acquiring felling licence, the logging activity was carried on in the two blocks of land it had licence to operate. It would appear that the claim of trespass was based on the grievances, and the allegation that the timber rights processes were not complied with. In other words, should the Claimants succeed in the Chiefs’ hearing, it will alter the entire course of things and will affect the licence so far as the two blocks are concerned, a fact which is differs from Osiramo’s case.

The question whether the facts are different or not, is not a major issue. The significant of those two cases is that this Court has jurisdiction to grant relief by way of injunction as an aid to allow the Chiefs adjudication role in hearing the customary land dispute.

Trespass

Mr Nori argued that to substantiate a claim for trespass, the Claimants have to prove by way of documentary evidence of ownership. In other words they ought to be equipped with a court decision before filing such a claim. The issue of land trespass is not an isolated one from the rest of the claims. It raises the same jurisdictional basis to ground injunctive relief. In normal circumstances where claim for damages are attach to trespass, of course, there has to be documentary proof on ownership. In this case the claim for trespass is not an issue to be considered and determined separately from the rest of the grounds. They are inseparable. The same can be said with the issue of non-compliance with FRTUA by the Malaita Provincial Executive (MPE), in which, to adjudicate on it separately require R13.32, an application for judicial review. I gather that it was not the intention of the Claimants to proceed separately with each claim. What have been unfolded in the Statement of Claim were purposely grounds upon which an application for injunctive relief was sought. Meantime the issue of trespass is stayed until the substantive is determined.

The Law in Veno Case

Mr Nori submitted that the Veno Case supports his argument that in the circumstances, there has no jurisdiction to grant injunctive relief, and lacked of standing. He specifically referred to paragraph 10 which states:

"So far as the process relating to customary ownership are concerned as provided for by the Forest Resources Act, they have been completed: firstly, by the decision of the Western Provincial Executive and, secondly, by the discontinuance of the appeal. The timber rights have thus been settled. The Plaintiffs did not seek to appeal to the CLAC. As the learned Chief Justice rightly pointed out, this has a direct bearing on whether there were serious issues for determination requiring the intervention of the adjectival jurisdiction of the High Court."

The facts in Veno case is quite different from this case. In Veno case, the Appellants and others invited Omex Limited to conduct logging on Havahava land. Form 1 application was lodged by Omex Limited with the Commissioner of Forests. A timber rights hearing was convened. On 18th September 2002, a certificate in the prescribed form was issued which listed the names of landowners as persons lawfully entitled to grant timber right. The Appellants were not named among the group.

The determination was appealed by the objectors, but not the appellants. On 17th April 2003, a consent judgment was endorsed and notice of discontinuance filed, and the proceedings closed. The Appellants then referred the case to the Marovo Council of Chiefs but the determination was in favour of the 1st Defendant. Instead of the appellants, an aggrieved party, referring a case to the Local Court, the successful party lodged a Form 1 in the Local Court.

The significance of the Court of Appeal judgment which is relevant to this case is in the following paragraphs – paragraph 12 – last sentence;

".....In this case, for the reason that have been given, there was no order or decision (by the WCLAC) within sub-section 10(2) and thus nothing to prevent the Chiefs considering the dispute that was referred to them and which they decided adversely to the appellants...."

And in paragraph 15;

"Fundamental, therefore, to the appellant’s case is the existence of current proceedings in the Local Court. It is evident that no such proceedings were current. All that had occurred was the production of a certificate in the prescribed Form 1 as provided in S.12 of Local Court Act."

For these reasons, among others, it has a direct bearing on whether there were serious issues, and the claims as to customary rights to land are no more than mere assertions. Therefore insufficient to ground injunctive relief.

In this case, the question whether the claimants had attended the hearing and raise no objection, or not at all, is a procedural issue. Even if they attended and raise no objection, were they a party to the timber rights meeting. I do not for a moment think so. The timber rights processes though may be completed and felling licence subsequently processed and issued to the 2nd Respondent, and logging ensued. Amidst all that, the ownership issues in respect of the two blocks of land remain unsettled. Eventually the Claimants filed a land ownership claim with the appropriate Chiefs. Have they got rights to do so?

In the case of Havea v Jino[9], the Court of Appeal stated in paragraph 21;

"No only the Appellant not a party to the High Court proceedings, he was not a party to any of the proceedings including, in particular those instituted and settled in the WCLAC. And this Court held, the consent judgment was binding on the parties to it and was not protected by the privative provisions of S.10 of the Forest Resources and Timber Utilization Act."

Apparently, nothing would possibly disqualify the Claimants from being referring a claim of landownership case to the Chiefs. They were not a party to the timber rights hearing. And whilst a case before the chiefs is current, they have the right to come to this court and sought the orders as they did. It may be viewed as non party interfering with the contract of others. The fact is that logging operation had been well ahead and several shipments had already been shipped. Visibly the Claimants are persons directly affected by the contractual arrangement made by the Defendants. See Gandly Simbe’s case[10], Ronald Bei Talasasa (Jnr) and Others v John Wesley Talasasa and Attorney General[11], and Kosgungaloso Timber Co. Ltd v Attorney-General[12].

By paying a fee to the House of Chiefs goes to show their reaction to maintain their interest. More so come to this Court and obtain injunction and Mareva/Freezing Orders which has been concluded. The claim of right of ownership has yet to be determined. It is not a mere assertion, but a genuine one. I find the Claimants have right to come to Court, they may have contemplate other agendas.

From what have been said, the High Court has wide spectrum of supervisory jurisdiction over the function of the sub-ordinate Courts and as well as the Chiefs. Anjo and Osiramo cases are classic instances of the extent of this jurisdiction to the Chiefs.

ORDERS

1. Application to strike out the Summons be dismissed

2. Injunction and Mareva/Freezing Orders made on 4th July 2008 to remain on foot until further orders.

3. Cost of this application be paid by the Defendants.

BY THE COURT

^[1] CA - No.8 of 1997 [Unreported]
^[2] HCSI-CC No.152 of 2003, page 4 para 3.
^[3] [200]SBHC 65; HC-CC No. 82 of 2001 [Unreported judgment 6/9/2001]
^[4] Ibid, n1
^[5] Ibid, n2
^[6] Ibid, n3
^[7]HCSI CC No.8 of 1996 [Unreported - 15/4/1996]
^[8] [2000] SBHC 21; HCSI-CC No.20 of 2000
^[9] Civil Appeal No.36 of 2006 [An Appeal from HC-CC no.255 of 2005]
^[10] Ibid, n1
^[11] HCSI-CC No,104 of 1999 [Unreported: 22/7/1999]
^[12] HCSI-CC No. 229 of 1998 [Unreported: 19/4/1999]