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High Court of Solomon Islands |
HIGH COURT OF THE SOLOMON ISLANDS
Civil Case No. 186 of 1996
NATHANIEL IDALE & OTHERS
v
GOLDEN FOUNTAINS (SI) COMPANY LIMITED
& KALAHAKI TIMBER LIMITED
Before: Palmer J
Hearing: 18 October, 1996 - Ruling: 23rd October, 1996
Counsel: J. Moti for the First Applicant/First Defendant, P. Tegavota for the Second Applicant/Second Defendant - A. Nori for the First Respondent / First Plaintiff, G. Suri for the Second Respondent/Second Plaintiff
PALMER J:
Ruling: On 23rd August, 1996, this court ordered that the logs felled and extracted from Talambi customary land be identified and attached pending resolution of questions of ownership in custom in relation to those logs. This court also recognised that questions of ownership of those logs would ultimately depend on questions of ownership of the land on which those logs had been removed. In that hearing, the court was of the understanding that the customary area of Talambi land, from which the First Plaintiffs alleged the logs had been removed was agreed upon by all those concerned. However, as has now transpired, the area of Talambi land itself is in dispute as between the First Plaintiffs and the land-owners supporting the Defendants. One further matter which should also be noted is that, the landowners supporting the defendants, refer to a customary land called Toba land in contrast to Talambi land, and the view held by them is that Talambi land, forms only a small area of land within Toba land. They hold the view that, the majority of the logs at the Doma log pond, had been felled and removed from Toba customary land, and not from Talambi customary land. They also hold the view that they are the true and correct land-owners of Toba land and that therefore they had the right to transfer their timber rights in those trees to the First and Second Defendants and to receive the proceeds from their sale, never mind the fact that no licence and timber rights existed in respect of Toba land. Those logs had been felled in the process of road construction through Toba land, and that rather than leaving those logs to rot and go to waste, they might as well have them exported together with the First Defendants other logging operations, so that they could at least enjoy the monetary benefits from those trees. Based on that view, they proceeded to identify the logs which they believed were from Talambi land, and to allow the First Defendant to export the logs from Toba land.
It was this action of the First and Second Defendants which gave rise to the subsequent summons being filed and heard by the court on 2nd September, 1996. In that hearing, held between 21.30 hours and 23.00 hours, it was pointed out by Counsels for the First and Second Plaintiffs that the area or boundaries ascribed to Talambi land by the Defendants was disputed by the First Plaintiffs. They alleged that Talambi land area was much bigger, and that since there was dispute as to the boundaries, that no further logs should be loaded on to the log ship which was loading at that very hour and day. Unfortunately, it was never made clear to the court, that there were other logs in the Doma log pond which had been taken from other customary land other than the disputed area. Accordingly, it had been assumed that all the logs inside the Doma log pond had been felled from the disputed area. As has now been made clear to this court, that was not the full and correct picture. Restraining orders accordingly, were issued in respect of all logs, and preventing any further loading to take place at the Doma log pond.
The First and Second Defendants now come to this court seeking variation of the orders of the court, inter alia. as follows:
"2. ... that the injunction herein granted ...on the 2nd day of September, 1996 be varied to allow the First Defendant to:
(a) remove and export all logs (other than those extracted from the disputed area called Toba/Talambi Land ("the disputed Land Area ")) currently stored at the Doma log pond; and
(b) otherwise resume performance of its contractual obligations to the Second Defendant under the Project Development and Operations Agreement dated May 20, 1996;
…..5. that an interest bearing trust account be opened in the joint names of all of the parties' solicitors at the National Bank of Solomon Islands into which shall be paid the gross proceeds of the sale of all logs loaded aboard the 'MV Taiyo' and sold and exported pursuant to paragraph (2) of the order granted ... on the 2nd day of September, 1996;
6. that the sum of US$41, 468.48 (representing the amount realised from the sale of logs extracted from the S.L.H. Concession Area and sold and exported by the First Defendant in accordance with the terms and conditions of its Timber Contract with the S.L.H Timber Co-operation Limited dated July 22, 1996) be released from the gross proceeds of sale and be paid to the First Defendant;
7. that paragraph (3) of the order granted . . . on the 2nd day of September, 1996 be varied to allow any party to apply to the Court for payment of any sums out of the balance of the gross proceeds of sale;
8. that, pursuant to the ruling made ... on the 23rd day of August, 1996, solicitors for the respective parties be directed to
(a) arrange the sale by auction of all logs extracted from the Disputed Land Area; and
(b) pay all proceeds from the sale of those logs into the trust account to be established under paragraph (5) hereof;
9. that an injunction be granted to restrain the First Plaintiffs and the Second Plaintiff by themselves, their directors, servants, agents or otherwise howsoever from obstructing or otherwise interfering with the First Defendant's continued access to or use of the road constructed by the First Defendant on the Disputed Land Area until the final determination of all matters arising in these proceedings;
10. that the costs of this application be costs in the cause."
Apart from the new evidence that has now surfaced enabling clear identification of the logs from the disputed area, one of the crucial submissions raised by the First Plaintiffs in this hearing as the basis for this court not to grant the variation sought was to suggest that there had been finality in the matter concerning questions of ownership and boundary of Talambi land The documents relied on were the Unaccepted Settlement of the Chief's Committee dated 26th September, 1992, the Consent Order issued by the High Court dated 14th November, 1994, and another Chief's Committee decision dated 4 September, 1996. Copies of the first two documents had been annexed to the affidavit of Thomas Sagekesa Loke filed on 8 August, 1996, and marked "TL2" and "TL3" respectively. A copy of the Chief's Committee decision dated 4 September, 1996 is annexed to the affidavit of Haladino Vohimarisi filed 9 October, 1996, and marked "HV 1" With respect to the submissions of Mr. Nori, the submission of finality at this point cannot be entertained by this court. The determination of the Chief's Committee dated 26th September, 1992, has been correctly described as an unaccepted settlement between the parties, and therefore could not be regarded with any finality. Further, this fact was duly recognised in the Consent Order issued by this court on 14 November, 1994. In paragraph 3 of that Order, it was agreed that the Applicant, Haladino Vohamarisi would take the matter up further in the Local Court within thirty days, from the date of the Order. There is no evidence to show that the Applicant had done that, and so the matter remains unsettled. As to the Chief's Committee decision dated 4th September, 1996, it had been completed on an Accepted Settlement form, but the records on the form showed clear discrepancies. It appears that the Defendant, Thomas Sagekesa Loke never attended that hearing and therefore, his signature in the space provided in the form for the Defendant to complete was never executed by him. Whatever the reasons for the Defendant not to turn up, those are immaterial for purposes of determining questions of finality of that decision. The weak link in any Chief's findings is that they are unenforceable unless adopted by the Local Court as an order and so until that is done, they cannot be considered with binding authority on the parties. The submissions of learned Counsel for the First Plaintiff therefore cannot be accepted at this stage by this court.
This must mean that the issues pertaining to the ownership and boundaries of Toba and Talambi land remain unresolved as between the First Plaintiffs together with Haladino Vohimarisi and Thomas Sagekesa Loke. What is clear from the evidence adduced so far is that the question of ownership of Toba land as determined in the Civil Case no. 1/82 by the Sagalu/Savulei Local Court was that it was owned by the Haubata Tribe, of which the Head Chiefs were identified as Haladino Vohimarisi and Thomas Sagekesa Loke. It is also not in dispute that Mr. Thomas Sagekesa Loke had given express permission to the Defendants to construct an access road through Talambi/Toba land (see affidavit of Paul Wong filed on 8 October, 1996, at paragraph 12, and annexure marked "PW4"). Further, it is not disputed that a written document purported to be signed by some of the First Plaintiffs sought to give permission to the Second Defendant to construct an access road through Talambi/Toba land (a copy of that letter of consent is exhibited in the affidavit of Albino Joropo and marked "AJ1").
The Defendants relied on those letters of consent to have the access road constructed before the matter was brought up before this court as a dispute. I appreciate the argument raised by learned Counsel for the First Plaintiffs that the decision of the Local Court in 1982 over Toba land, identified two head chiefs over the Haubata tribe. However, it has never been made known or clear what that meant. Did it mean that both had rights in common to be exercised over Toba land and therefore had to be consulted for any decision and that both must give their consent before any decision would be regarded as binding, or can either head chief make a binding decision on the tribe? If one head chief goes ahead and makes a unilateral decision as has happened in this case, can the other head chief cancel that decision if he disagrees? What would happen if both head chiefs cannot agree on any particular matter. Should they go back to their tribe and get the views of the tribe on such a matter? Does the tribe at large have the power to depose their head chiefs or be able to change the decision of any of those two head chiefs? These are some of the unanswered questions which would need to be addressed to some extent to clarify the rights and the power of those two representatives of the Haubata tribe, and in turn to be able to determine the effect of a unilateral decision as had been taken in the circumstances of this case.
At least it is clear that the actions of the Defendants in constructing the access road cannot be said to have been done in vacuo or without any basis. There is evidence to support the actions of the First and Second Defendants in constructing the access road. Only when that had been completed did the First Plaintiffs saw fit to take up this case. It is my respectful view that the appropriate cause of action to take is to allow the First Defendants access through that road, but to keep a record of all log pieces hauled and their volume. If at the end of the day, the First Plaintiffs should win the question of ownership over that disputed land, then they would be at liberty to negotiate an appropriate access fee from the First Defendants.
Taking everything into account, I am satisfied that the following orders should be made.
ORDERS OF THE COURT
(1) Order that the injunction granted by this court on 2nd September, 1996 be varied to allow the First Defendant to remove and export all logs (other than those extracted from the disputed area called Toba/Talambi Land currently stored at the Doma log pond.
(As regarding sub-paragraph 2(b) sought in that Summons, it is my view that it is not necessary for this court to make any orders in respect of that matter, as it is a private arrangement between those two parties concerned)
(2) Order that the sum of US$41,468.48 (representing the amount realised from the sale of logs extracted from the S.L.H. Concession Area and sold and exported by the First Defendant in accordance with the terms and conditions of its Timber Contract with the S.L.H. Timber Co-operation Limited dated July 22, 1996) be released from the gross proceeds of sale and be paid to the First Defendant.
(3) Order that paragraph (3) of the order of this court dated 2nd September, 1996 be varied to allow any party to apply to the Court for payment of any sums out of the balance of the gross proceeds of sale.
(4) Direct that solicitors for the respective parties to:
(a) arrange the sale by auction of all logs extracted from the Disputed Land Area, as soon as possible; and
(b) pay all proceeds from the sale of those logs into the same trust account opened pursuant to paragraph 5 of the Summons.
(5) The First Plaintiffs and the Second Plaintiff by themselves, their directors, servants, agents or otherwise howsoever, are restrained from obstructing or otherwise interfering with the First Defendant's continued access to or use of the road constructed by the First Defendant on the Disputed Land Area until the final determination of all matters arising in these proceedings.
(6) The First Defendants and the Second Defendants shall keep an accurate and true record of all log pieces and their respective volumes hauled through Toba / Talambi land until final determination of the issues raised in these proceedings.
(7) Order that the costs of this application be costs in the cause.
Albert R. Palmer,
JUDGE
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