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Maekai v Tropical Greens Co Ltd [2023] SBHC 27; HCSI-CC 217 of 2020 (2 June 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 217 of 2020

BETWEEN

SEBASTIAN MAEKAI
(Representing Araiwaisi Tribe, East AreAre)
Claimant

AND:

TROPICAL GREENS COMPANY LIMITED
First Defendant

AND:

BURWOOD (SI) Limited
Second Defendant

AND:

JACK HOKIAU, WILSON WATEAU, JACK HOUTARAU, ALOYSIUS KAUHUSIA AND SILIRO KANAIKOPU
Third Defendant

Date of Hearing: 1 November 2022
Date of Ruling: 2 June 2023

Mr. B. Etomea for the Claimant
Mr. N. Sariki for 1^st, 2^nd and 3^rd Defendant

RULING ON APPLICATION FOR DETERMINATION ON PRELIMINARY ISSUE

Faukona DCJ: The timber rights hearing was conducted at Hautahe village on or about 9^th August 2017. This concern certain customary lands at East AreAre.

2. The question of whether araiwaisi customary land was inclusive in the timber rights process cannot be verified at this stage. The difficulties are attributed to the none disclosure of important documents as copy of Form 1 application, map showing the concession area, Form 2 determination of the Provincial Executive and a copy of felling license normally issued by the Commissioner of Forests.
3. Had those documents disclosed by the parties, it would have assisted the Court to verify whether arawaiasi customary land was inclusive in the concession, and identification of trustees who had rights to grant timber rights from the customary land as determined.
4. In the absence of those significant documentations, and despite amidst uncertainty, a felling license No. A101701 was issued to the first Defendant on certain date. And logging activities commenced in the month of March 2020 after timber rights hearing on 9^th August 2017. The only evidence that arawaiasi land was included in the timber rights is by a letter of 2^nd may 2017, where the Office Manager of Auki Magistrates Court affirmed there was no appealed filed and produced a list of lands including arawaiasi land as subject to a timber rights hearing.
5. On 22^nd May 2020, there was a purported ex-parte injunctive orders. In fact there was no injunction restraining logging operation. The only order appeared in the purported injunction was for the Defendants to pay the proceeds of 388 logs extracted from arawaiasi customary land, except for custom duty, to be paid into the trust account of the High Court.
6. On 28^th July 2020 the above order was varied by consent. Instead of transacting payment of value of logs into the High Court trust account, the monies be paid into a joint trust account of both Solicitors.
7. The orders were obtained by the Claimant on the basis that he was awarded ownership of arawaiasi customary land by the Mosiwara House of Chiefs decision dated 24^th – 25^th April 2014.
8. It was that Chiefs determination that gave rise to this application. The Defendants in particular, 3^rd Defendants, argue that the decision is null and void and of no effect under the principles of maxim, functus officio and the doctrine of laches or acquiescence.
9. The reason for that argument is that the same Mosiwara House of Chiefs in a joint panel with Hutohuto House of chiefs made a decision in respect of the same customary land on 8^th – 10^th October 2009, awarding right of ownership to Uruhani Araha tribe which was represented by Jack Houtarau (the 3^rd named Defendant 3) in this case.
10. The Claimant has disputed the joint House of Chiefs decision in 2009 and labelled it as a purported one. He denies or disagrees with the content of the 2009 decision, for the reason that the issue at that hearing was boundary between two regions, inemauri and warahoroiparao and not about the ownership of arawaiasi customary land. That Hutohuto house of Chiefs was never a joined panel but an observer.
11. The 3^rd Defendants view is different. I noted from the outset that there is no evidence available to affirm the decision of the joint Chiefs’ panel was publicly pronounced, nor there is evidence to affirm the date the parties received a copy of the decision.
12. With some reservations, it is important to note the common practice rules that as soon as after the hearing concluded the chiefs panel must convene and discus the decision. After discussion the decision must be publicly announced immediately. Naturally it is acceptable that a written copy of the decision be given to the parties later within days or weeks, but not months or years. Delay in delivery of decisions prompted suspicious and justice seen to be delayed.
13. In the light of that anomaly, was there a truly joint Chiefs siting and decision made in 2009?
14. The President of the joint house of Chiefs presided in 2009 was Chief Vincent Nakumora. In his sworn statement filed on 29^th July 2000, he stated he was the President of the joint panel hearing the dispute over arawaiasi customary land from 8-10^th January 2009.
15. Mr. Nakumora also stated that they made a decision of ownership of ariwaiasi land in favour of Jack Houtarau representing uruhani araha tribe. It was not a boundary dispute but ownership dispute.
16. In that sworn statement Mr. Nakumra also disclosed Exh. “A” copy of the decision and refer to Exh. JH4 attached to Mr. Houtarau sworn statement filed on 25^th June 2020.
17. I have observed and study the record of the joint panel of Chiefs decision and the Local Court Clerk/Malaita’s letter dated 9^th March 2018. In that letter the clerk stated that the decision of the joint panel of Chiefs’ were deposited or filed in the Malaita Local Court Office in Auki on 14^th April 2009. She also affirmed there was no referral filed in the Local Court since 14^th April 2009.
18. I have observed the form in which the decision of the joint panel of Chiefs take; I can very affirm there is no irregularity discovered and noted. The fact that only two members signed, one was the President is sufficient to validate the decision.
19. In the sworn statement of Mr. Simon Matana, who deposed that he was one of the panel members of the Mosiwara House of Chiefs? He confirm that they were not observed but actually participated.
20. During the course of the hearing the current Claimant was called as a witness. Mr. Matana actually cross-examined him during the proceeding related to the where about were the tabu sites of the teteusuanimae tribe. In an answer the Claimant said he did not know.
21. In any proceedings before a land tribunal or Courts, anyone called to give evidence or explain a point during hearing is a witness. A witness is subject to cross examinations. Mr. Matana actually cross-examine the Claimant and the Claimant and given an answer as “no”. That is actually giving evidence during the 2009 Chiefs hearing. There is involvement, he was actually a witness giving evidence.
22. The records of the proceedings before the joint House of Chiefs was attached as exhibits in the sworn statement of Mr. Houtarau filed on 25^th June 2020 and 11^th August 2021. And also attached to the sworn statement of the Claimant filed on 11^th October 2021.
23. That decision was made after two days of full trial. A copy of it was filed with the Local Court Office in Auki a week later. The fact that the parties did not received a copy of the written decision was true, suffice the authority did, indicated that there was a true decision made and is useful for all purposes. There was no referral filed, even until now.
24. Until about five years later, the Claimant filed another case with the Mosiwara House of Chiefs which was heard and a decision was made on 25^th April 2014.
25. Having perused and investigated the record of the 2014 Chiefs hearing the first thing was the case was heard ex-parte. The current third named 3^rd Defendant who was expected to be a party had failed to appear to attend Chiefs’ hearing. Therefore the decision was made against him. In his absent the Chiefs therefore awarded the ownership of arawaiasi customary land to the Claimant. There may be some reason why Mr. Houtarau did not attend which was not explained at that stage.
26. From the outset, I am able to glean that the major reason could be that Mr. Houtarau had already won the same land in the same Mosiwara and Hutohuto joined House of Chiefs in 2009.
27. In any event the Claimant argues that he is a new party. How could he be, when he had given evidence on behalf of Mr. Basil Ainiwapu in 2009 case? Mr. Basil Ainiwapu lost the customary ownership of the land to Mr. Houtarau.
28. Apparently the Claimant is not a new party. He had been involve in 2009 Chiefs hearing by giving evidence on behalf of the losing party. He cannot return later in 2014 and claim ownership of the same land. In fact he is estopped by the doctrine of acquiescence. He had knowledge about the Chiefs’ hearing, he attended and acknowledge the subject matter and gave evidence.
29. The doctrine expresses or implied consent that the Claimant had consented to be bound by the result of the chief’s decision in 2009. By giving evidence he had waived his right in failing to protect his ownership right and interest to the land, having full knowledge that the issue at that hearing was ownership of arawaiasi customary land. In other words the Claimant was simply saying that he did not won the land but Basil did. Therefore the joint panel decision in 2009 thus subsist, valid effective for all purposes.
30. Apparently the 2009 Chiefs decision had a binding effect upon the Claimant in the circumstances for this case. He cannot re-open another case.
31. Another issues raised by the Defendants is the principles of “first in time, first in right”, and functus officio.
32. There is no dispute that 2009 decision was first in time before the decision in 2014. The fact that the Mosiwera/Hutobuto joint panel decision was first in time, therefore has first in right to be accepted over the single Mosiwera House of Chiefs decision in 2014.
33. It is logic to acknowledge that the same tribunal of Chief cannot hear the same issue between the same parties twice. In the current case the principle applies, except where a new party emerged in the second hearing.
34. The claimant attested that he is a new party. However, that cannot be the case; he had given evidence in the previous proceeding on behalf of losing party hence he is barred.
35. Once a Chiefs panel had given its decision it becomes functus Officio. It can’t rehearse and entertain in the second hearing. That is the function of an appellate or referral tribunal.
36. In the case of Rehari V Tropical Greens Company Ltd^[1] the Court stated;
    • “The later principle is a latin phrase meaning, a Court or tribunal no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished. The same Court or tribunal cannot make another decision or even alter the records of its proceedings to alter its findings. What the MHC did subsequently was illogical”.
37. The above principle must apply in this case. There can be no to conflicting decisions at one time. Therefore the Mosiwara House of Chiefs in 2014 is functus officio and cannot alter its earlier decision and subsequently make another decision. The 2014 decision is respectively null and void and have no effect.
38. There is no dispute that Mr. Aniwapu lost his customary right to arawaiasi customary land in the decision of the joint panel of Chiefs in 2009. There is also common knowledge that Mr. Aniwapu was a member of the Mosiwara House of Chiefs presiding and awarding the right of ownership of the same land to the Claimant.
39. It is a strange occurrence as to how would Mr. Aniwapu sat on the chief panel to decide a land dispute he lost to Mr. Houtarau in 2009? This is a clear case of well-planned injustice to prevail above the rule of law and decent practices and procedures.
40. No doubt there could have been collusion at play and biasness. In the case of Talasasa v Paia^[2] the court held that in relation to bias, it must be shown that a right minded person would consider there was a real likelihood of bias.
41. From the circumstances of this case, a right minded Solomon Islander can form an opinion that Mr. Aniwapu being a losing party in 2009 case, and then presiding over the same land he lost and gave it to the Claimant is real likelihood of bias. Undoubtedly what occurred in this proceeding should not be allowed to continue. In doing so will pollute the work of the Chiefs which are expected to be impartial in their actions and decisions making. Indeed the Chiefs in 2014 case were bias.
42. The Claimant also relies on another Mosiwara House of Chiefs decision concerning the same land dated 23^rd July 2021. He argues that proceeding was held following the direction order of the High Court on 7^th May 2021.
43. There is no fishy about that the orders were made on the date, however, they were consent orders by the parties through their respective Solicitors.
42. Before the Mosiwara House of Chiefs heard the claim of ownership in respect of the same land through direction ordered by the Court on 7^th May 2021, both Counsels for parties attended court again on a mention day of 8^th July 2021, and agreed by virtue of the second order that the direction orders 1, 2 and 3 made on 3^rd May 2021, perfected on 7^th May 2021, for the Chiefs to hear the land ownership issue was abandoned.
43. Mr. Takosi attended the Court on instruction from Mr. Etomea on 8^th July 2021. The orders were perfected on 13^th July 2021. If Mr. Takosi had done his uttermost responsibility he would have advised his client by phone or email or message to abort the hearing set for 23^rd July 2021. Once the order for hearing of the land case was abandoned there was no valid order left. Therefore the hearing conducted by ex-parte on 23^rd July 2021, in respect of the same land was not authorized therefore unlawful.
44. From the reasons for decision discussed above, it appears nothing is left for trial. All the evidence the Claimant relies on merely to escape all the breaches of law he committed and even to the validity of the 2014 Chiefs decision, which was unlawful, invalid and unreliable (cannot rely on). In other words all his arguments are fluidity and are out of any wise advice as to the application of law.
45. With those I must therefore award the reliefs sought in the application to determine preliminary issues on law dated 5^th September 2021, to the Defendants.

Orders.

1. Order that the Mosiwara House of Chiefs decision dated 24^th -25^th April 2014 is null and void and of no effect under the principle of maxim, functus officio and doctrine of acquiescence.
2. Order that decision of Mosiwara and Hutohuto joint panel of Chiefs of 8^th-10^th October 2009, is valid and effective in law, and that Uruhani Araha tribe continue to enjoy rights to customary ownership of arawaiasi customary land.
3. Order cost of this hearing be paid by the Claimant to the 3^rd Defendants on standard basis if not agreed upon.

The Court.
Hon. Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2021] SBHC 21 HCSI – CC 95 of 2021 (7 May 2021).
^[2] ......................