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Tutua v Kongu Ngaloso Timber Company [2001] SBHC 172; HCSI-CC 063 of 2001 (5 June 2001)

CC No 063, 2001, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 063 of 2001

VAEDAL YN TUTUA & OTHERS

-v-

KONGU NGALOSO TIMBER·COMPANY, OMEX LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 063 of 2001

Hearing: 4 June 2001
Ruling: 5 June 2001

A. Radclyffe for Plaintiff
A. Nori for First Defendant
J. Katahanas for Second Defendant

MURIA CJ: By its Notice of Motion the first defendant seeks to strike out the plaintiffs’ action on the grounds that this Court has no jurisdiction to hear the dispute raised and secondly, in the alternative, that no reasonable cause of action had been disclosed. In support of the application the first defendant relied on the affidavits of Mendana Panda filed on 25 and 30 May 2001. The second defendant supports the firsts defendants’ application. The plaintiffs oppose the application.

Brief backgrounds

I set out briefly the background to this case. The plaintiffs are representatives of the Seijama Family and are members of the Lupa tribe are suing as owners in custom of Seko land on Gatokae Island, in the Western Province. The first defendant is a company registered under the Registration of Business Names Act and has a felling Licence dated 9th October 2000. The second defendant is a company incorporated in Solomon Islands.

The first and second defendants entered into a contract on or about 26 January 2000 whereby the second defendant contracted to fell logs within the area covered by the felling licence. In the course of their operations, the defendants entered onto Seko Land and cut trees thereon. The plaintiffs claim that they have never given permission to the defendants to enter and cut logs on their land. Consequently, they have brought this action claiming damages for trespass to their land and for conversion of trees felled on their land, an account of trees felled, proceeds of sale of all marketable timber felled and restraint from entering onto the land.

The first defendanf’s case

The first defendant’s case in the present application is that the plaintiffs should not have brought the action before this Court since this Court has no jurisdiction to deal with the customary issues involved, particularly on the question of ownership. As such the action should be struck out. Mr Nori based his client’s case on the ground that the authorities have now clearly established that the issue of ownership of customary land is within the jurisdictions of Local Court and Customary Land Appeal Court (CLAC) but not the High Court. References were made to a number of cases including the Court of Appeal decision in Grandly Simbe -v- East Choiseul Area Council & Others Civ. App. No. 8 of 1997 (Judgment given on 9 February 1999). In essence the first defendant says that since the plaintiffs’ claim in the main action is for trespass, they cannot bring it to this Court unless and until they have confirmed an undisputed title of ownership to the land. This they can only have following final decisions of chiefs, Local Court, CLAC or High Court. Thus says the first defendant, the plaintiffs must be armed with a final decision giving them ownership of the land between Seko River and Bolenrae River (“the Seko Land”) before they can invoke the jurisdiction of this Court in a claim for trespass.

The second argument by the first defendant that the plaintiffs’ claim disclose no reasonable cause of action is premised on similar argument to that on the jurisdiction. So that in the absence of proof of ownership, the plaintiffs do not have a cause of action to base their claim upon. Again this necessitates the question of ownership of customary land being dealt with first by Local Court or CLAC before this Court can hear such claim as that now brought by the plaintiffs.
Second defendant’s support

In support of the first defendant’s application, Mr. Katahanas for the second defendant says that Simbe’s case must be noted in this application. The second defendant says that this Court has no jurisdiction to deal with the plaintiffs’ action since they fail to show any evidence of ownership in their favour over the land nor any evidence of their intention to take the necessary steps to establish their right of ownership in the Local Court or CLAC. It is further contended that the plaintiffs are merely asserting their rights over the land and that is not sufficient to invoke the jurisdiction of this Court.

The plaintiffs’ case.

On behalf of the plaintiffs, Mr. Radclyffe argues that the plaintiffs’ claim is not only the trespass to land but also for conversion of the trees on the land. They have a chiefs decision which corroborates their claim on their interest in the land. Thus the plaintiffs’ claim is not based on mere assertion as the defendants argue but on the basis of a chiefs’ decision which is decision made following the exercise by the Chiefs of their statutory power under the Local Courts Act. Such a decision cannot be meaningless. Mr. Radclyffe contends that the plaintiffs had done what is required under Simbe’s case. To contend that the plaintiffs must be armed with a “final determination” as to their rights in a customary land before coming to this Court is unrealistic. Counsel further argues that a distinction must be noted between a trespass to land per se and a logging case involving customary land questions.

Whether the action should be struck out of want of jurisdiction.

The first defendant’s argument that there must be evidence of a “final determination” in the plaintiffs’ favour of their right of ownership over the land before they can invoke the jurisdiction of this Court is not supported by the authorities cited. The case of Grandly Simbe -v- East Choisel Area Council & Ors (above) does not preclude a plaintiff who has a decision on ownership in his favour, be it from the Chiefs or Local Court or CLAC from invoking the aiding jurisdiction of the High Court. Only a party who has no colour of decision in his favour as to his rights over the customary land would find it difficult to invoke the jurisdiction of this Court. In Nathan Kere -v- Paul Karana Civil Case 258/00 (Judgment on 27 November 2000), Kabui J, refused to exercise the jurisdiction of this Court to aid the plaintiff, not because he had no final determination of his land rights in his favour but because he was not armed with any decision or evidence thereof at all. His Lordship clearly pointed out the right direction to the plaintiff to which he should first run, that is, to the Chiefs and if necessary to the Local Court and CLAC if he wants assistance from the Court. In Robert Ratu -v- Dakolae Resources Development Co. Ltd, Civ. Case No. 288/97 (Judgment 18 February 1998) the plaintiff sought restraining order against the third defendants, its agents or servants. The Court refused to exercise its jurisdiction to aid the plaintiff because the plaintiff merely asserted his ownership right over the land in question through his membership of a tribe. The Court pointed out that for the plaintiff to invoke the jurisdiction of the Court, he had to show evidence of his ownership right over the land and that the should have done through the procedure under the Forest Resources & Timber Utilisation Act or through the procedure under the Local Courts Act which was to the Chiefs, then to Local Court and CLAC.

The cases mentioned are authority for the proposition that while the High Court has no jurisdiction to decide on the question as to who in custom is the owner of a customary land, it can nevertheless exercise its jurisdiction to assist the parties to a customary land dispute by way of injunctive relief provided the party seeking such relief shows a decision or evidence thereof establishing his right of ownership over the land. In this regard, a decision by the Chiefs on customary land is equally important for the purpose of invoking the aiding jurisdiction of the Court. It cannot be simply brushed aside as “meaningless” as Mr. Katahanas suggested. The decision reached by the Chiefs is reached through the statutory procedure for determining customary land issues pursuant to the Local Courts Act. It would be an affront to the intention of the legislature in enacting that law to brand the Chiefs decision as less unworthy to that of the Local Court or CLAC on issue of ownership over customary land. See Eric Tanea & Anor -v- Paripao House of Chief & Anor, Civ. Case No. 196 of 1999 (Ruling given 22 June 1999) and Nathan Kere -v- Paul Karani (above).

Where do all these lead us to in this case? In the present case, the evidence of Vaedalyn Tutua establishes that the plaintiffs have in their favour a decision made by the Marovo Council of Chiefs on 21 February 2001 (see Exhibit “VT3” of Vaedalyn Tutua’s affidavit filed on 30 April 2001). There is also a Chiefs’ decision dated 3 December 1997 over Kongungaloso/Kalekakado Land in favour of Simeon Nano who represents Kongungaloso Tribe. The parties to that case were Randley Riringi and Simeon Nano. The plaintiffs who were not party to that 1997 case had brought the case against Simeon Nano in February this year and the Chiefs had decided in favour of the plaintiffs. Armed with that decision, the plaintiffs now come to this Court claiming damages for trespass and conversion of their trees and ask the Court to restrain the defendants from entering their land. That cannot surely be simply regarded as a mere assertion of their rights over the land in question.

Counsel for the second defendant sought to impress upon the Court that the plaintiffs have done nothing to demonstrate their ownership right over the land. He urged the Court to consider that the plaintiffs had not shown any intention of bringing the matter to the Local Court. With respect, I feel that argument belied the reality of the position of the plaintiffs and the defendants in this dispute. I would have thought the defendants are the ones who would be insisting on bringing the matter further to Local Court. The plaintiffs have a decision and that is enough for them to come to this Court and ask for its aiding jurisdiction. This is what they have done in this case and it would be contrary to principles to prevent them from doing so.

Whether a cause of action is disclosed.

From what I have said earlier in this judgment, this question must be answered in the affirmative. The affidavit materials filed on behalf of the plaintiffs establish the basis for their bringing this action to court. They have a decision confirming (unless successfully challenged in the Local Court CLAC or this Court) their rights over the land. The defendants are obviously disputing that right. In the meantime, the defendants have been alleged to have entered and cut trees on their (plaintiffs) land without permission. Those facts, if proved, would be sufficient foundation for the plaintiffs’ alleged cause of action in this case. Thus the contention that there is no good cause of action disclosed in this case cannot be sustained.

A practice challenged

In the course of his argument Mr. Nori raised a point which challenges the existing practice adopted by this Court. The practice is that in a customary land related case and very often in this country it would be a logging case, the High Court would retain the case but refers the issue of ownership of the customary land to the Local Court. The case proceeds again in the High Court after the ownership question is determined by the Local Court. Mr. Nori argues that such an approach is wrong.

For any part, I do not see anything wrong with such a practice. It is certainly in my view a practice not without authority. As long as an action has been brought competently before this Court in the first place, there is nothing wrong in the Court retaining jurisdiction over the matter while a question specifically invested by Parliament on another body with power to determined is dealt with by that body. See Simbe’s case which quotes the principle in Peacock -v- Bell [1845] EngR 175; (1667) 1 Wms. Saund 69, 74; [1845] EngR 175; 85 ER 81, 87-88 where it is said:

“......nothing shall be intended to be out of the jurisdiction of a superior Court but that which specifically appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is expressly so alleged.”

Thus it is within principle and, I would add, common sense, that pending decision on a customary issue in the Local Court or CLAC, the High continues to retain jurisdiction over the action but would ordinarily stay the proceedings on appropriate terms.

Conclusion.

Taking into account the materials before the Court together with all that Counsel have submitted, the only conclusion that the Court can reach is that the first defendant’s application must be refused. I so order together with costs to the plaintiffs.

(Sir John Muria)
CHIEF JUSTICE