HIGH COURT OF SOLOMON ISLANDS
(Palmer CJ.)

Civil Case Number 273 of 2009

Eagon Pacific Plantation Limited
The Claimant

V

Arnold Siuta, Dilenty Vula, Rupasi Mare, John Kilatu, Arnold Minu, Peni Haro and Lemick Bile T/A KALENA FOUNDATION RESOURCES DEVELOPMENT
First Defendants

And

Omex Limited
Second Defendant

Date of Hearing: 15 September 2010
Date of Judgement: 24 September 2010

C. Hapa for the Claimant
M. Pitakaka for the 1st Defendants
P. Afeau for the 2nd Defendant

Palmer CJ.

The Claimant Eagon Pacific Plantation Limited ("Eagon") filed an application on 7th December 2009 pursuant to Rules 9.73 and 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules") to strike out the defence of the first Defendant and have it dismissed as disclosing no reasonable cause of action. This however was not the correct rule for what was wanted. In his submissions on 15 September 2010, Mr. Hapa for the Claimant corrected this by relying on the right Rule 9.57 for summary judgement, that the first defendant does not have any real prospect of defending the claimant's claim. If the court is satisfied that the defendant has an arguable defence or a real dispute between the parties over a material fact then it cannot grant a summary judgement.

Case for Eagon

Eagon is the registered owner of the fixed-term estate in parcel number 122-001-4 ("the Property"). This is not in dispute. A grant of the fixed-term estate from the Commissioner of Lands was registered sometime in May or June of 1996 for 75 years. The value of the grant was $23,000,000.00. A copy of the map depicting the boundaries of that grant is contained in the sworn statement of Chris Hapa filed 4th August 2009 and marked as exhibit "WP2". 

In 1996 a felling licence TIM 2/83 to cut, fell and extract timber was also issued. Since that time Eagon has been carrying out re-forestation. It has planted about 13,000 hectares of land. It is also doing downstream processing of logs in the form of a veneer processing mill.

The only parcels of land which are not included in the fixed-term estate of Eagon are two parcels of land known as Lot 7 and Lot 8. The boundaries of these two parcels of land have also been clearly delineated.

Eagon does not dispute that a felling licence was obtained on 17 April 2009 by Kalena Foundation Resources Development ("Kalena Development") to fell and remove timber from lots 7 and 8 and that the second defendant, Omex Limited ("Omex") was engaged by Kalena Development as the logging contractor to fell and remove the logs in those lots. Eagon however says that the logging activities of the defendants can only be confined to lots 7 and 8. Where they had gone beyond the boundaries of those lots they had trespassed into their Property.

Case for Kalena Development

Kalena Development on the other hand asserts that the area of land stretching beyond Rigga Point to Sakabare River apart from Lots 7 and 8 is customary land. They say that that area of land should never have been included in the original sale agreement of the land. They say that the boundary description of the Property insofar as it had included those lands was wrong. They say to the extent it had been included that a mistake had been made.

In their application for joinder, filed 9 December 2009, they sought to join the Commissioner of Lands and Registrar of Titles on the basis of mistake. They allege that the original sale agreement in 1964 should not have included the area beyond the area stretching from a straight line between Rigga Point and Sakebare River. They relied on a number of sworn statements in which the landowners basically say that a portion of the land beyond the straight line running from Rigga Point to Sakebare River was supposed to remain as customary reserve land. 

The main documents relied on consisted of copies of original documents of transfer, of significance being a document titled "Agreement for Transfer of Land from a Solomon Islander to the Protectorate Government" dated 12 January 1964. A copy of that document is exhibited as "PH1" in the affidavit of Penny Haro filed 13 August 2010. This is a fairly comprehensive document consisting of four pages which set out in clear and plain terms the area of land being transferred. 

Page 2 of that document contains a sketch map demarcating the boundaries of the land with an approximate area of 125 square miles. The landowners who signed the transfer were Job Kimi, Amos Kulo, David Vullar, Sialo, Pastor Haro, Pastor Tutuo, Joseph Bates, Timothy Susa and Pujaka. The person who acted as interpreter was Penny Haro. Page 3 of the document at the left margin contains also a description of the boundaries of the land. 

In the application for joinder heard on 20 August 2010, it was refused on the ground that there was no or little material to support the assertion that a mistake had been made in the transfer of the Property by the original landowners. The landowners had opportunity to correct or amend the description of the land or the boundary but did not. Secondly, even if there had been a mistake, there is no material to suggest that Eagon had knowledge of that mistake or caused that mistake or substantially contributed to it by its act, neglect or default. Section 229(2) of the Land and Titles Act protects the interest of a bona fide purchaser of the property for value from being rectified. Again the material filed does not support any suggestion that Eagon was anything other than such. In the circumstances, I was not satisfied that the presence of the Registrar of Titles and the Commission of Lands were necessary to enable the court to make a decision fairly and effectively in the proceedings. 

This court however makes the observation that this case gives the impression of what might possibly have been diverging or differing viewpoints or concepts of what such transaction entailed. On one hand you have the customary land tenure system of tribal landowners where concepts of outright sale and purchase of land may not have existed in their vocabulary or custom. This would include such concepts as "once tribal land always a tribal land", that tribal land ownership can never be divested from tribal ownership. That land is viewed as forming part of the integral existence of a community or tribe and therefore cannot be sold. A foreigner or outsider coming onto tribal land therefore may acquire usufructuary rights but the rights of ownership will always remain with the tribe or landowners. This is where the concept of "primary landowners" as opposed to "secondary landowners" may have been coined in some land cases in Solomon Islands to try and capture this concept of customary land ownership.

On the other hand, the introduced concept of landownership and registration under the British Administration of the times was that land can be sold or acquired as a piece of property to the exclusion of the vendor for purposes of development, such as a plantation, reforestation etc. In turn the purchaser may grant rights (a licence) to enter the land for limited purposes such as felling trees for building materials, canoe making and carvings etc. and hunting or fishing.

It is possible there may have been some misunderstanding when the original land transactions were made. The landowners who claim customary rights of ownership over the land say they had no benefit of any legal advice at that time and so could not have fully appreciated what they were signing. That may have been the case and only regretted their actions when they realised what they had entered into. To a certain extent, it is not surprising therefore that the landowners now are saying that there had been a mistake or that their initial understanding of what was expected was not correctly reflected in the transfer documents.

The Boundaries of the Property.

The original transfer documents relied on in this instance cannot be faulted for they had been undertaken with such care, clarity and certainty that the only reasonable conclusion that this court can arrive at is that the landowners who executed those instruments did understand, or must be deemed to have understood what they were doing. To try and unravel such transactions without clear and convincing material on the basis of mistake is near enough impossible.

The recent survey undertaken by Mosese and Associates on 21 August and 27 August 2010 at the direction of the Court, to locate the original boundries, merely confirms Eagon's position in this matter; that the boundaries of the Property included all the areas of land which Kalena Development asserts is customary land. A copy of that detailed survey report and map of the boundaries is set out in the sworn statement of William Pita filed on 18 September 2009 and marked as Exhibit "WP1". 

The assertion by Kalena Development therefore, that the boundary of the Property stretches from Rigga Point to Sakebare River, cannot be substantiated. While it may have been the wish and desire of the landowners when the original agreement for transfer was made in 1964, that such a land area be excluded from the transfer and to remain as customary land, that wish or desire was not recorded or included in the transfer instruments and subsequent documents. 

The Timber Rights Agreement of 19 March 2009

What Kalena Development and Trustees of Lots 7 and 8 of Viru Customary Land do not have, cannot be conferred to others. This is the legal effect of the transfer of the Property effected in 1964. In so far as the timber rights agreement of 19 March 2009 therefore purports to confer rights over areas beyond the delineated boundaries of lots 7 and 8 are concerned, these are void ab initio. Kalena Development in turn did not acquire any valid timber rights over those areas for there was none to be acquired. 

Timber Licence A 10913 

This timber licence obtained by Kalena Development in turn did not confer felling rights over those areas outside of lots 7 and 8. Any agreement it entered into accordingly with any logging contractor to fell logs beyond those two lots were invalid. The activities of the logging contractor, Omex engaged to fell logs in turn were unlawful.

Conclusion.

I am satisfied on the material filed before this court that there is no arguable defence to the claim. I note that there are disgruntled landowners who are unhappy about the outcome and legal effect of the transfer of their land in 1964, but in so far as the law that applies under the Land and Titles Act is concerned, they are bound by those decisions made by their elders and tribal leaders.

The order sought accordingly for summary judgement must be granted as set out in the Amended Claim of the Claimant filed 23 September 2009.

Orders of the Court:

1.	Grant declaration that the timber rights agreement dated 19 March 2009 in so far as it covers the fixed-term estate in parcel number 122-001-4 is invalid and unenforceable.

2.	Grant declaration that the timber licence no. A10913 in so far as it covers the said fixed-term estate is invalid and unenforceable.

3.	Grant declaration that the logging and marketing agreement in so far as it covers the said fixed-term estate is invalid and unenforceable.

4.	Grant Declaration that the first and second defendants have trespassed into the Property of the Claimant.

5.	Grant damages for trespass to be assessed if not agreed.

6.	Grant costs against the first and second defendants. 

The Court.