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Lavi v Pitakere [2025] SBHC 31; HCSI-CC 31 of 2016 (20 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 31 of 2016

BETWEEN:

HENRY LAVI, JOHN MENISIA, DAVID LIVINGSTON and MAGARETH NALOSOLE, TEDDY LULAVAKI and ALISTER PAEKERA
(representing Sauro tribe of Vella la Vella)
First Claimants

AND:

SAURO DEVELOPMENT COMPANY
Second Claimant

AND:

PITA PITAKERE AND RODIE TAGOLO
(representing Sasa Pezoporo Tribe of Vella la Vella)
First Defendants

AND:

SASA PEZOPORO DEVELOPMENT COMPANY LIMITED
Second Defendant

AND:

METRO TEAM LIMITED
Third Defendant

Date of Hearing: 9 & 24 November 2023
Date of Decision: 20 February 2025

Ms Jillian Soaika and Mr McChesney Ale for the First and Second Claimants
Mr Clifford Lagobe for the First and Second Defendant
Mr Joses Duddley for the Third Defendant

JUDGMENT

Bird PJ:

1. This is a claim for trespass on Sauro customary land in Vella la Vella, Western Province. It is commenced by Henry Lavi, John Menisia, David Livingston, Margareth Nalosole, Teddy Lukavaki and Alister Paekera representing the Sauro tribe, the First Claimants. The Second Claimant is Sauro Development Company. It is a company incorporated in Solomon Islands and holds felling licence A10301. They operate logging on Sauro customary land.
2. Pita Pitakere and Rodie Tagolo (First Defendants) represent the Sasa Pezoporo tribe also of Vella la Vella. Sasa Pezoporo Development Company Limited (Second Defendant) is a company, purporting to carry out business in logging. They hold felling licence Tim 2/98.
3. Metro Team Limited (Third Defendant) is a limited company and carries on business in the forestry sector. They claimed to have been contracted by the Second Defendants to carry on logging operations on Sasa Pezoporo customary land.

The First and Second Claimants case

4. The dispute over the boundary between Sauro customary land and Sasa Pezoporo customary land went as far back as 1997. The Vella la Vella Local Court in Land Case No. 4 of 1997 determined the boundary as “The land commencing from Modimodi River, went up to Mulolo Kubo mountain and then going down Kazo River, followed Kazo River down to the mouth of Kazo River belongs to Sauro tribe whom Chief John Sina represent”. The case was between John Sina of the Sauro tribe and Monty Jale of the Sasa Pezoporo tribe. The Sasa Pezoporo tribe filed an appeal against the Local Court decision to the Western Customary Land Appeal Court (WCLAC).
5. On 16 January 2016, the WCLAC delivered its decision thereby dismissing all the grounds of appeal. They upheld the Local Court decision. A further appeal to this court in Land Appeal Case No. 150 of 2006 was struck out for want of prosecution on 12 July 2010.
6. In about January 2003, the Sauro tribe lodged a Form I application to the office of the Commissioner of Forest (COF). A timber rights hearing was conducted by the Western Provincial Executive on 13 March 2003. The application by the Sauro tribe was granted. A public notice to that effect was published on 9 May 2003. An appeal was filed against the determination. By letter dated 6 October 2003, the Western District Magistrates Court confirmed that the said appeal was withdrawn and that there was no other appeals pending before them.
7. Chief John Sina, the chief of the Sauro tribe has become deceased. On 21 September 2011, the tribe nominated David Livinstone as replacement of the late chief. The replacement was endorsed by the Western Provincial Government on 22 September.
8. On 2 July 2014, Mr Livingstone wrote a letter through the COF for the renewal of the Second Claimant’s felling licence A10301. On 7 May 2015, the COF issued the felling licence.
9. On or about January 2016, the First Claimants found out that the First, Second and Third Defendants have entered Sauro customary land and have conducted logging activities therein. They have encroached into the boundary of Sauro customary land as was determined by the Vella la Vella Local Court in 1997. A letter of complaint was send to the COF.

The position of the First, Second and Third Defendants

10. With the above background of the boundary issue as well as the First and Second Claimants timber rights process, it is the position of the First and Second Defendants that they commenced their timber rights process in about 1995. Their timber rights process was in respect of Sasa Pezoporo customary land. It was made before the decision of the Vella la Vella Local Court in 1997. That process had led to the issuance of felling licence Tim 2/98 by the COF.
11. It is further their position that since the process was conducted before the boundary issue was litigated in 1997, the land area that were covered under Tim 2/98 included part of Sauro customary land. Their annual harvesting plan that was approved by the COF on 22 May 2015 also cover the land areas that were included in their timber rights process in 1995. Upon these basis, they deny the claim of trespass by the First and Second Claimants.
12. The Third Defendant also supports the contention of the First and Second Defendants. Apart from their reliance on what is stated by the First and Second Defendants, they further say that the assessment carried out by the office of the COF did not confirm any trespass at all. Two officers including one Catherine Dora’ania were deployed to the disputed area. They undertook an assessment on the alleged trespass area from 16 to 18 May 2016. They concluded that there was no trespass by the First, Second and Third Defendants on the disputed area. Upon that basis, they deny any claim for trespass and consequential orders sought by the First and Second Claimants.

Discussion

13. From the above scenario, it is common ground that Sauro customary land and Sasa Pezoporo customary land are lands that lay adjacent to each other. Due to that reason, they would have shared some common boundary. That has led to the commencement of a boundary issue case between the two tribes in about 1997. The only court decision on the boundary issue between these parties was the Vella la Vella Local Court decision dated 4 July 2001. The decision was in favour of the Sauro tribe.
14. An appeal by the Sasa Pezoporo tribe to the WCLAC was dismissed on 16 January 2006. Their further appeal to this court was struck out for want of prosecution on 12 July 2010. That then concluded the boundary issue. It is therefore a fact that the Vella la Vella Local Court decision of 4 July 2001 is a final and binding decision between the parties and members of their respective tribes in relation to the boundary between Sauro and Sasa Pezoporo customary lands.
15. It is also common ground that the respective tribes have lodged timber rights applications to the COF in respect of their respective customary lands. The first application in time was that of the Sasa Pezoporo tribe in about 1995. They were issued with felling license Tim 2/98.
16. In about 2003, the Sauro tribe lodged their application to the COF. They were subsequently issued with felling license A10301. That was all good then. Felling licence Tim 2/98 was issued prior to the Vella la Vella Local Court decision which was upheld by the WCLAC.
17. What is of essence in this proceeding is that the Sauro tribe represented by Chief John Sina lodged an appeal to the WCLAC against the timber rights determination of the Vella la Vella Area Council in respect of the Sasa Pezoporo timber rights process in 1995.
18. On 28 September 1995, the WCLAC had on procedural grounds dismissed Chief John Sina’s appeal. Of great importance in respect of the judgment of the WCLAC was their confirmation of the initial finding of the Vella la Vella Area Council on 4 July 1995. That was the procedural ground under which the said court had dismissed the appeal.
19. The WCLAC in their two last paragraphs of their judgment (page 85 of the supplementary court book), stated inter alia “We now turn to the appeal of John Sina. This appellant was present at the timber rights meeting and made objections to the granting of timber to the First Respondent. His name appeared in the Form II as of one of persons who is lawfully able and entitled to grant timber rights. However his name also appeared in the second schedule to the Form II as persons who will not grant timber right to the Pezoporo Company as persons representing other tribes who have lawful rights to grant timber rights within Pezoporo land but who are not willing to grant their timber rights to the company”.
20. On page 2 of the judgment, the WCLAC further stated that “the areas of the above persons and tribes (including John Sina) have been excluded in the timber rights application by the applicant”. For the stated reasons, his appeal was moot and need not be further considered. It must be minded at this juncture that the dismissal of Mr Sina’s appeal to the WCLAC does not change and or vary the decision of the Vella la Vella Area Council of 4 July 1995 in their Form II determination.
21. The joint effect of the decision of 4 July 1995 and that of 26 September 1995 was that the lands which belonged to Mr Sina and which he had raised objections to, were to have been excluded by the COF from the First Defendants felling license Tim 2/98 when it was issued. So if for some reasons or by mistake, the COF had included the lands objected to by Mr Sina in Tim 2/98, that would have caused a real issue about that felling license. The issuance thereof would have contravened the Form II determination by the Vella la Vella Area Council.
22. On another note, if the COF has approved the First Defendant’s 2015 annual harvesting plan as a consequence of that mistaken belief and or assumption then that would have added to the already created problem by his office.
23. One of the core duty and function of the office of the COF is to oversee, to implement, to police and to take control of the applicable law, being the Forest Resources and Timber Utilisation Act (FRTUA). He must be able to perform his duty with diligence and due care to ensure that all provisions of the law are duly complied with.
24. In this instant, the Vella la Vella Area Council had made a timber right determination in respect of the Sasa Pezoporo timber right process way back in 1995. It was then obvious and should have been obvious to the COF that the land areas objected to by Chief Sina were to have been excluded from any felling licence that was to be subsequently issued by his office.
25. From the memorandum by Smith Savakama, the Chief Forester (op), Western Province dated 22 January 2016 (pages 97 & 98 of the court book), he found and confirmed that there was overlapping on both harvesting plans. He was of the view that proper checks must be done before approving of harvesting plans because it was a concern for all licensees.
26. The duty and obligation to approve annual harvesting plans is vested on the COF. In carrying out his duties and responsibilities under the Act, he must have regard to the due process provided for under the Act to make absolutely certain that all formalities pertaining to Form 1, Form 2, Form 3 and Form 4 are strictly adhered to. He must especially take heed of the Form II determination so as not to go beyond the land areas determined. That would further assist him to properly and succinctly determine the extent of the land mass that should be included in each application for approval of annual harvesting plans.
27. The COF is not a party to this proceeding but I am greatly assisted through the memorandum referred in paragraph 25 as well as the assessment referred to in paragraph 12 above. What I can say is, the view of the Chief Forester is indicative of the fact that the COF might not have properly perused and complied with the determination of the Vella la Vella Area Council of 4 July 1995 as well as the comments of the WCLAC discussed in paragraphs 19 and 20 above. If he had, it might just have not caused overlapping of both licensees annual harvesting plans. Any problem could have been avoided from the very beginning.
28. The First, Second and Third Defendants position is their timber rights determination was made and concluded before the boundary issue between the parties was litigated. I can say that their position could have been a viable one. had it not been for the actual determination. It is possible that the determination could have been erroneously interpreted by them.
29. They say that the appeal by the Sauro tribe was dismissed and there was no further appeal lodged. The most crucial issue that the three Defendants had missed is that the determination of the Vella la Vella Area Council was approved by the WCLAC. The appeal therefore was moot because a valid determination has already been made by the Area Council in Sauro tribe’s favour. The First, Second and Third Defendants have missed that crucial point.
30. In effect therefore, the Vella la Vella Area Council has excluded from Sasa Pezoporo’s application for timber rights all of the land areas objected to by Chief Sina of the Sauro tribe. Consequent to that determination, the COF should never have included in the Sasa Pezoporo felling licence Tim 2/98 the land areas objected to. On the same token, the COF should not have included in Sasa Pezoporo’s 2015 annual harvesting plan the land areas objected to by Chief Sina of the Sauro tribe. That was the problem that was indicated and highlighted by Mr Smith Savakana in his memorandum.
31. So notwithstanding that Sasa Pezoporo felling licence Tim 2/98 was issued by the COF before the boundary issue was litigated in 1997, the legal effect of the Vella la Vella Area Council determination of 4 July 1995, is final between the parties. The Vella la Vella Local Court decision of 4 July 2001 merely confirmed the actual boundary of the Sauro customary land. That decision if read together with the 4 July 1995 determination will make it succinctly clear which land areas are to have been excluded from Tim 2/98 as well as their 2015 approved annual harvesting plan.
32. Due to the above reasoning, it is not a defence for the First, Second and Third Defendants to state that their felling licence and their 2015 approved harvesting plan are in compliance with their initial timber rights determination. That is an incorrect assumption by the Defendants.
33. The common boundary between the respective customary lands is common knowledge to them. They have mutual trust and understanding. In the sworn statement of Alister Paekera at paragraph 13, on page 23 of the court book, it was the son of Monty Jale, the losing party in the 1997 Local Court case that alerted Mr Paekera about the intrusion of the First, Second and Third Defendants’ logging operation into Sauro customary land. That is clear indication of trespass on the part of the Defendants.
34. It was subsequent to the information that the First Claimants found out about the First, Second and Third Defendants logging activities inside Sauro customary land. That has led to mutual discussion between the parties but it remained unresolved to this day.
35. On behalf of the First and Second Claimants, the evidence is contained in the various sworn statements of Mr Paekera and the attached memorandum of Mr Savakana as well as the survey report from Infinite Land Surveyors dated 13 July 2016. The Sasa Pezoporo tribe through the late Monty Jale’s son confirmed that the Defendants had entered and conducted logging activities on Sauro customary land. That piece of evidence was not challenged by the Defendants during trial.
36. Apart from that, the memorandum by Mr Savakana further confirmed there was overlap of both felling licences into each other’s concession areas. It is noted that the Defendants have not lodged any complaints about any intrusion by the Claimants into their concession area.
37. The survey and assessment by Infinite Land Surveyors could be a contentious one. It is a one sided assessment. The First, Second and Third Defendants were not a party to that assessment and therefore did not take part. In any event, the report and assessment could provide some assistance to the court in respect of the land area of Sauro customary land and the area of encroachment. It is also noted that no issues were raised by the Defendants about the content of the survey report during trial.
38. In closing, the crux of the case for the First and Second Defendants in essence is they have been granted the mandate to conduct logging in the concession area as per the Vella la Vella Area Council determination. The First Claimants appeal to the WCLAC was dismissed and they are estopped from making any further claim as they did.
39. That contention is similar to that of the Third Defendant. In discussing the issue, I am of the view that their joint contention is of no assistance to them. On that note, I wish to reiterate what I have stated in paragraphs 30, 31 and 32 above. I have perused and noted the case authorities relied upon by the Defendants. I also do not think that the cases on the issue estoppel are applicable in this proceeding.
40. In effect, I am further of the view that the issue estoppel in effect, applies to the First and Second Defendants. In this regard, they are not entitled to re-agitate what was decided by the Vella la Vella Area Council. They have misinterpreted the decision of the said Area Council and that of the WCLAC. That was root cause of the whole issue between them.
41. It is therefore obvious from the Defendants pleadings and closing submissions that the mistake that caused the problem between the two tribal groupings was the misinterpretation of the two decisions. The Defendants have merely relied on what they thought and or believed, was the decision of the Vella la Vella Area Council. It was their mistaken belief that caused them to enter and conduct logging operation on land areas that were expressly excluded.
42. On the same token, the COF was also mistaken when he included land areas that were expressly excluded in the Form 2 determination of the Vella la Vella Area Council and subsequently confirmed by the WCLAC, when he issued Tim 2/98 to the Second Defendant. Consequently, he also made the very same mistake when he approved the Second Defendant’s 2015 annual harvesting plan. That mistake has caused the overlapping of the respective 2015 annual harvesting plans of the Second Claimant as well as the Second Defendant.
43. In light of the above discussion, I am satisfied on the balance of probabilities that the First and Second Claimants have proved their case for trespass against the First, Second and Third Defendants. I hereby enter judgement in their favour as per the reliefs sought in paragraphs A, B and C on page 5 of the court book. I also order cost against all defendants jointly and or severally. The issue of assessment of damages is adjourned awaiting joint assessment report from all parties.

THE COURT
Justice Maelyn Bird
Puisne Judge