CC No 155, 2003, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 155 of 2003

EZIKIEL MATENI

-v-

SERI HITE

High Court of Solomon Islands 
(KABUI, J)
Civil Case No 155 of 2003

Date of Hearing: 1st August 2003
Date of Judgment: 4th August 2003 

Mr. A. Nori for the Plaintiff 
Mr. A.Radclyffe for the Defendant 

JUDGMENT

Kabui, J: This is an application by the Defendant filed on 17th July 2003 seeking an order to strike out the Plaintiff’s Originating Summons filed on 8th July 2003 as amended and filed on 1st August 2003 on the ground that it does not fall within the provisions of Order 58 of the High Court (Civil Procedure) Rules, 1964, ‘the High Court Rules.’ 

The Brief Background. 

In 1974, the Plaintiff obtained a Marovo Local Court decision in his favour in a dispute between himself and the Defendant over the ownership of Muki Muki land situated on Vangunu Island in the Marovo Lagoon. The decision of the Marovo Local Court in 1974 had not been appealed by the Defendant. On 8th April 2003, the Western Provincial Government made a timber rights determination in favour of the Plaintiff and Mendana Hagere as persons entitled to grant timber rights on Muki Muki land. The Defendant has appealed the determination to the Western Customary Land Appeal Court. In the meantime, the Plaintiff has sought declarations based upon the decision of the Marovo Local Court in 1974. 

The Defendant’s Case. 

Counsel for the Defendant, Mr. Radclyffe, argued that the effect of the Plaintiff’s Originating Summons was to deprive the Defendant’s right of appeal to the Western Customary Land Appeal Court because the timber rights hearing was a separate procedure under the forestry legislation giving an aggrieved party a separate right of appeal to the Customary Land Appeal Court. He argued that in terms of rule 1 of Order 58 of the High Court Rules, the decision of the Marovo Local Court was not ‘a written instrument’ within the meaning of that rule. In any case, he said that the Plaintiff was the owner in custom of Muki Muki land. There was no further need, he said, to establish his right to ownership in Muki Muki land by seeking a declaration under rule 1 of Order 58 of the High Court Rules. Furthermore, he argued that in terms of rule 2 of Order 58 of the High Court Rules, the Marovo Local Court decision was not a written law within the meaning of rule 2 above. He said that for these reasons, the Originating Summons should be struck out. 

The Plaintiff’s case. 

Counsel for the Plaintiff, Mr. Nori, on the other hand, argued that the Defendant was free to pursue his appeal in the Western Customary Local Court and denied that the Originating Summons was to prevent the Defendant from pursuing his appeal. On the question of the Marovo Local Court decision being a written instrument or not, he argued that it was a written instrument within the meaning of rule 1 of Order 58 of the High Court Rules. He repeated the same argument in respect of rule 2 of Order 58 of the High Court Rules. That is it say that the Marovo Local Court decision was a written law because rule 2 did not use the word ‘statute’ to restrict its meaning to Acts of Parliament. He maintained that the Plaintiff was entitled to come to the Court under Order 58 of the High Court Rules for the declarations sought. 

The decision of the Court. 

I think the answer to this application must lie in the judgment of the Court of Appeal in the case of Aquila Talasasa, Jacob Zinghite and Nathan Maisasa Losa v. Rex Biku, John Kevesi and WCLAC, Civil Appeal No.2 of 1987. In that case, the Court of Appeal said that the Customary Land Appeal Court under the forestry legislation had no jurisdiction to determine the ownership of customary land. It said that its jurisdiction was confined to appeals arising from the determinations made by the Area Councils. At page 5 of their judgment, the Court said- 

“.....The function of the Customary Land Appeal Court once an appeal was instituted is, as set out in s. 5D(1), to hear and determine the appeal. In this statutory context this must mean that it is the duty of the appellate Court to examine whether the determination certified by the Area Council and determine whether it correctly identified all the persons lawfully able and entitled to grant the rights in question......It follows that it is the function of the Customary Appeal Court to examine the question afresh and to make its own determination......”

I think the Defendant’s appeal can proceed in the normal way. The Western Customary Appeal Court will be hearing an appeal about the granting of timber rights than ownership of customary land. I do not think the Originating Summons is a bar to the appeal proceeding as intended, as it does not concern the determination of ownership of customary land. However, this does not mean that the Originating Summons cannot be struck out for another reason. Can its existence be justified? The answer is in the negative. The Marovo Local Court decision in 1974 vests the ownership of Muki Muki land in the Plaintiff and his tribe. That decision stands alone on this point. It does not need any further declaration by the Court under Order 58 of the High Court Rules for it to be recognized by the parties. There is no need for the text of the court decision to be determined by the court to establish the Plaintiff’s right to ownership of Muki Muki customary land. The Local Court decision speaks for itself on its own authority on the issue of ownership of Muki Muki land. The other issue is res judicata. I do not quite understand the argument upon which declaration 2 in the Originating Summons is based. It seems to suggest that the Defendant is the grand-son of the Defendant in the 1974 dispute and therefore cannot dispute the ownership of timber rights on Muki Muki land the ownership of which had been given to the Plaintiff in 1974. In other words, the 1974 Marovo Local Court decision is binding on the parties in the dispute over ownership in 1974 and so Seri Hite being the grand-son of the Defendant in the 1974 dispute cannot raise the same issue again this time for the same issue had been conclusively determined in 1974 between the same parties. The answer to that argument is that ownership of Muki Muki customary land is not the same issue as ownership of timber rights in the harvestable trees on that same customary land. This issue has been conclusively determined in this jurisdiction. (See Allardyce Lumber Company Limited, Bisili, Roni, Sakiri, Hiele, Sasae, Poza, Zogabule, Daga, Pato and Zinghite v. Attorney-General, Commissioner of Forest Resources, Premier of Western Province and Paia, Civil Case No. 93 of 1989.), confirmed by Gandly Simbe v. East Choiseul Area Council, Eagon Resources Dev. Company Ltd., Steven Taki and Peter Madada, Civil Appeal No. 8 of 1997) applied in subsequent cases). I am aware of the artificial distinction between ownership of customary land and the timber rights in the trees on the land. In custom, the one who owns the land owns the trees on that land unless the trees have been planted by someone else in which case the trees are owned by the planter but the land is owned by another person. Be that it may, legislation has specifically created this distinction to allow the harvesting of trees to be free of dispute over the ownership of customary land. There is therefore a different procedure for the determination of timber rights. The distinction is based upon commercial efficacy than anything else. 

In the result, the argument underpinning declaration 2 in the Originating Summons fails. The 1974 Local Court decision does not also fall within the meaning of rule 2 of Order 58 of the High Court Rules. That court decision is not a written law as defined in section 16(1) of the Interpretation and General Provisions Act, (Cap. 85) as stated in John Nenete v. Attorney-General, Commissioner of Forest Resources and Miqa Intergrated Development Company, Civil Case No. 294 of 2001. The result is that the application is granted. The Originating Summons is struck out as being quite unnecessary to advance the Plaintiffs case in the Western Customary Appeal Court. The dispute there will be about the identification of all the persons lawfully entitled to grant timber rights in respect of Muki Muki land and not its ownership in custom. The Plaintiff need not fear about ownership of land in the appellate forum. The Plaintiff will of course pay the costs of the Defendant. I order accordingly. 

F.O. Kabui Judge