HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 208 of 2002

Selwyn Dika & Casper Bana

v.

David Lenga Somana and Others

High Court of Solomon Islands
(Palmer J.)

Hearing: 21st November 2002
Judgment: 6th January 2003

A. Nori for the Applicant/ First Defendants
J. Apaniai for the Second Defendant
J. Keniapisia for the Third Defendant
G. Suri for the Respondents/Plaintiffs

Palmer J. This is an application by Notice of Motion filed 27th September 2002 by the Applicant/first Defendant (hereinafter referred to as “the first Defendants”) for orders inter alia, that the orders of the Court dated 19th June 2002 in the case Selwyn Dika v. David Lenga Somana Civil Case 256 of 2001, (hereinafter referred to as “CC 256/01”) be stayed pending determination of the first Defendant’s appeal, and in the alternative, for restraining orders to be made against Eastern Development Enterprises Limited (“EDEL”), its contractors, servants or agents from entering the disputed land for the purpose of carrying out logging operations. In the further alternative, that proceeds from any logging operations in the disputed land be restrained until outstanding issues in custom over the said land be finally determined.

The submissions of the first Defendant.

The first Defendant submits that a stay should be ordered in respect of the judgement delivered 19th June 2002 in CC 256/01 on the grounds that the said judgment is now on appeal to the Court of Appeal. Mr. Nori for the first Defendant submits that in the hearing before this court on 3rd May 2002 in CC 256/01, a crucial issue, which would have affected the decision of this court, was not brought to its attention. That crucial issue was that in the case of David Lenga Somana v. Joses Lote, Isabel Customary Land Appeal Case Number 4 of 1989, judgement delivered 28th March 1990 (hereinafter referred to as “CLAC 4 of 1989”) David Lenga Somana (“Somana”) was acting for the Mamara Clan as well. In that case, the decision of the Isabel Customary Land Appeal Court over Rakata land read as follows: “From the west side of Pazagere to Rakata water belongs in custom to Mamara clan and the Eti Eti Clan have the right to use this part of the land.” 

Mr. Nori submits that an issue, which is still very much alive between the parties, is the meaning of the words “the Eti Eti Clan have the right to use this part of the land ”. Learned Counsel submits that an outstanding issue, which is yet to be determined between the parties, is the question of rights in custom of the Eti Eti Clan over the said area of land. What rights in custom does the Eti Eti Clan have over the said area of land? Mr. Nori submits that had this issue been brought to the attention of this court at the hearing of 3rd May 2002, the court would have realized that an issue in custom remained undetermined as between the parties. He submitted that the decision in CLAC 4 of 1989 left open the question in custom whether ownership had been transferred by virtue of a custom transaction (described in the Local Court and Isabel Customary Land Appeal Courts’ decision in 1989 and 1990 as the “will” of Margaret Madi) in 1974 to the Eti Eti Clan, or whether some other rights of usage only may have been transferred and that ownership remained with the Mamara Clan. Learned Counsel submits that it was not open therefore for this court to conclude that the rights of the Eti Eti Clan could be ousted by a decision of a timber rights hearing conducted under the Forest Resources and Timber Utilization Act (Cap. 40). He submits that the decision of the Court in CC 256/01 is likely to be reversed on appeal and that a stay should be ordered in respect of any reliance which may be placed on it. 

Submissions of the Respondent

Mr. Suri for the Respondents (first and second Plaintiffs) on the other hand submits that the application for leave to appeal out of time filed in respect of the judgment of this court in CC 256/01 had been erroneously filed and therefore as at this point of time no valid appeal had been filed. The application for leave to appeal had not been converted to an application for appeal. Until that is done, no appeal remains on the file.

He also points out that the judgment in CC 256/01 was not perfected until 5th October 2002. It was still open therefore for the Applicant to file an appeal within time anytime thereafter. He has not done that and therefore the application for leave to file an appeal out of time dated 3rd September 2002 could not be converted to an application for appeal.

Secondly, learned Counsel submits that contrary to what had been submitted the decision of the court in CC 256/01 was thorough and did not omit any legal detail such that would warrant a stay. 

Thirdly, Mr. Suri submits this court cannot stay the orders of this court in CC 256/01, as they are final orders. A stay of execution or proceedings could be made under Rule 11(5) of the Court of Appeal Rules when an appeal is lodged with the Court of Appeal, but not otherwise.

Background facts

The area of land in dispute between the Mamara Clan represented by Selwyn Dika and the Eti Eti Clan represented by Somana stretches from the east side of Fufuana river to the west side of Rakata River. A number of crucial court cases have made determinations affecting certain portions of the land claimed by both parties. I have considered these cases in the judgment dated 19th June 2001 in CC 256/01. However in the light of fresh submissions made by Mr. Nori raising issues which may have impinged on the assessments made by this court in that judgement I have decided to reconsider those decisions afresh.

The case CLAC 4 OF 1989

The dispute was over Rakata Land and the parties were Joses Lote representing the Bulau Clan and Somana representing the Eti Eti Clan. When the matter came before the Isabel Local Court, Somana based his claim of ownership on a “will” which was purportedly made in 1974 by Margarett Madi, of the Mamara clan, as owner of the land. In his claims of ownership, Somana basically relied on the ownership of the land by the Mamara clan. He says that in 1974 there was a valid transfer of rights in custom over the said land to him. 

The Isabel Local Court held in its decision that the issue of ownership had already been determined in a previous decision in a case between Joses Lote and Allan Taravolo. The land in dispute in that case was SUAVANAO and PAPATURA – FA’A lands. The Isabel Local Court held that Suavanao land was the same as Rakata land. It also held that Margarett Madi was of the same tribe as Allan Taravolo and therefore bound by that previous decision in 1981. Any transfers therefore by Margarett Madi were invalid.

Somana appealed that decision of the Isabel Local Court to the Isabel Customary Land Appeal Court in CLAC 4 of 1989. The Isabel Customary Land Appeal Court held that Somana’s claim was different to Allan Taravolo and overruled. The appeal court also held that the boundaries of the land in dispute were different and re-defined the boundaries as follows:

“According to custom we believe that the true original boundaries of the land are as follow:

(1)	The Bulau boundary extends from Zuzuao to Pazagere
(2)	From the west side of Pazagere to Rakata water belongs in custom to Mamara Clan and the Eti Eti Clan have the right to use this part of the land.”

Since then, we have been fortunate to have other cases, which have addressed the issue of the boundaries referred to above. The case of direct relevance is David Somana v. Joses Lote Civil Case 21 of 1995, judgment delivered on 18th May 1995. That civil case came about as a result of a further case, Selwyn Dika and Others v. David Lenga Somana Land Case Number 1 of 1994, judgment delivered 20th August 1994, (hereinafter referred to as “the Rakata Baitfish Case”) which came before the Local Courts and the Customary Land Appeal Courts over questions of boundaries and ownership over the Rakata Baitfish grounds. Somana argued in the High Court that the questions of boundaries and ownership over the Rakata Baitfish grounds had already been determined by the Isabel Customary Land Appeal Court in CLAC 4 of 1989 in his favour. 

In his judgment, his Lordship Muria C.J. found that the area of land in dispute in the CLAC 4 of 1989 was inland and different. I quote:

“I have considered the evidence contained in the affidavits of the defendant and Selwyn Dika and quite clearly the decision of the CLAC No. 4/89 giving the Plaintiff the right to use the land was over Rakata land which is shown on the maps produced by the plaintiff and defendant as LR 675. That land belongs to the Mamara Clan and the plaintiff was given the right to use part of it between Pazagere to Rakata water. The maps produced clearly show that the part of the land which the plaintiff had been given the right to use is inland. One only needs to look at the maps again to confirm that. 

The part of the Rakata Land between Pazagere and Rakata Rivers and described as LR 675 is inland which was the subject of the decision in CLAC No. 4/89. Again looking at the maps both submitted by the plaintiff and defendant the land between Pazagere and Rakata River described as LR 23 toward the coast is different from that in LR 675. I have grave doubt that the CLAC Case No. 4/89 was also concerned with the land in LR 23. It will be noted also that LR 23 consists of the area which I have just described and also Papatura Island and the group of islands next to it.” [Emphasis mine]

The area of land in dispute in CLAC 4 of 1989 is better identified in a sketch map annexed to an affidavit filed in another case between David Lenga Somana v. Joses Lote Civil Case No. 21 of 1995. The facts of that case also touch on the same area of land in dispute. In exhibit “JL 7”, attached to the affidavit of Joses Lote filed 16th May 1995, he sets out accurately the boundaries of the land dealt with by the Customary Land Appeal Court in CLAC 4 of 1989. That area of land was shaded green in annexure “JL 7”. It is also the same area shaded orange in the sketch map exhibited in court as “SD 2” in CC 256/01. For ease of reference I will refer to this land as “the 1989 Land”. No dispute has been raised regarding the boundaries of that land.

The effect or meaning of the judgment in CLAC 4 of 1989.

The decision of the Isabel Customary Land Appeal Court in CLAC 4 of 1989 was somewhat interesting in that the Mamara clan was not a party to the dispute in that case. Although Somana’s claim then was based on the original ownership and transfer to him of the said land by Margarett Madi in 1974, he did not join the Mamara clan as a third party.

The decision of the Isabel Customary Land Appeal Court in CLAC 4 of 1989 had been that “…the Eti Eti clan have the right to use this part of the land.” Unfortunately the effect or meaning of this decision had never been clarified or agitated in any court before. It seems to have been taken for granted that that decision recognized that original ownership in custom over the 1989 Land vested in the Mamara Clan. It did not however go on to clarify what was meant by the decision that the Eti Eti clan had the right to use that part of the land! In the first instance, was that transaction valid in custom? If so, what rights were transferred? Was it referring to secondary rights in custom or was it referring to original ownership? Did it entail a transfer of rights of ownership or merely rights of usage (such as gardening and building of residential buildings)? 

My understanding of the bone of contention over the decision in CLAC 4 of 1989 as between the Mamara clan and the Eti Eti clan was that it appears the Mamara clan were saying that the transaction in 1974 was not a transfer of ownership rights but a mere granting of rights of usage, such as for gardening and construction of residential buildings, but not for the purpose of exercising original ownership over parts of the said land. Somana on the other hand appears to be saying that the transfer was a transfer of rights of ownership sealed in custom and that the Mamara Clan may no longer be able to exercise rights of ownership over the said land. Their rights of ownership had been severed in 1974. This was Somana’s claim before the Isabel Local Court and the Customary Land Appeal Court, that original title to the said land had been transferred or severed by virtue of the “will” (more accurately a customary transaction) in 1974 from Margrett Madi to him. He now had original title to the said land and that any original rights of the Mamara clan had been divested in his favour. 

These are the customary issues of ownership over the 1989 Land between Dika and Somana that remain undetermined. It would be advisable for the parties to consider taking this matter up further before the Isabel Local Court as and when it resumes hearing of cases in the new-year to have these issues determined or clarified. 

The Rakata Baitfish Case.

The Rakata Baitfish Case was another court case, which appears to have engendered some confusion as well between the parties, Dika and Somana. It was an application by three plaintiffs, Joses Lote representing the Bulau Clan, Selwyn Dika representing Mamara Clan and Casper Bana representing Etini Clan against Somana representing the Eti Eti clan. The dispute was over questions of ownership over the baitfish ground areas of the parties. 

Somana attended at the preliminary stages of the hearing but then refused to attend when formal hearing commenced on the grounds that ownership in custom over the said baitfish areas had been finally determined in CLAC 4 of 1989. His Lordship Muria C.J. had addressed this issue and delivered judgment in David Lenga v. Joses Lote Civil Case 21 of 1995, 18th May 1995. I have also addressed with this matter in the earlier part of this judgment. His Lordship Muria C.J. ruled against Somana and held that the area determined in CLAC 4 of 1989 was an area of land inland and did not include the Rakata baitfish grounds in dispute in that case. He ruled that the Rakata baitfish area in dispute was confined to the area around the coast and seas of the disputing parties.

The Isabel Local Court heard the dispute in the absence of Somana and made its decision. It held inter alia that the baitfish ground boundary of the Mamara Clan stretched from the

“…west bank of Rakata river to east side of Fufuana river, across to Gufuna which share boundary with Etini.” 

In the judgment of this court of 19th June 2002 in CC 256/01, I said that both the inland and sea boundaries of the Mamara Clan had been identified in that decision. I have taken the time to re-visit that judgment and reconsider what I said in the light of this application and observe that that couldn’t be correct. The matter in dispute between the parties in the Rakata Baitfish Case was over the boundaries of the baitfish grounds of the parties. It was not over the Rakata Customary Land. 

In reaching its decision, the Isabel Local Court did consider the claims of ownership of the Mamara clan over Rakata land. The binding part of the decision of the Isabel Local Court however was over the boundaries of the Rakata Baitfish grounds only, which necessarily were confined to the coastal boundaries stretching from the west bank of Rakata river to east side of Fufuana river and across to Gufuna, along the same boundary as the Etini Clan. Any earlier suggestions thus made by this court that the inland boundary beyond the coastal strip had been finally determined as between the parties must be overruled as wrong. It must be borne in mind that the court was not directly concerned with the hinterland boundaries of Rakata land in that case. 

The Timber Rights Hearing in 1995

The timber rights hearing convened on 23rd August 1995 by the Havulei/Kokota Area Council was conducted pursuant to the Forest Resources and Timber Utilisation Act for the purpose of identifying the representatives of the landowners entitled to grant timber rights over LR 675 also known as Rakata/Fufuana land. Both the Mamara Clan and Eti Eti Clan represented by Selwyn Dika and Somana respectfully were present. The Area Council ruled in favour of the Mamara Clan. Somana appealed against that decision to the Isabel Customary Land Appeal Court, which quashed the decision and directed the parties to take appropriate actions. Dika appealed to the High Court in Selwyn Dika v. David Lenga Somana & Attorney General CC 276 of 1999 judgment delivered 21st December 1999. The High Court quashed the decision of the Isabel Customary Land Appeal Court and directed that the appeal be heard de novo. 

In the judgment of this court of 19th June 2002 in CC 256/01 at page 3, paragraph (2), this court said:

“Instead of having the matter re-heard by the Isabel CLAC however, Somana filed an application with the Isabel Local Court to deal with his claim. It is not clear under what jurisdiction this was done. It is also not known too under what jurisdiction the Isabel Local Court sought to hear that application. There was no direction from the Isabel CLAC or from the High Court.”

At paragraph (4) this court continued:

“If a land dispute is to be referred to the Local Court under the Local Courts Act, then it must first be referred to the Chiefs under section 12. Obviously that had not been done in this case.”

In his affidavit filed 3rd October 2002, Somana pointed out at paragraph 6 that the above finding by this court was incorrect in that he had referred a land dispute to the Chiefs under the Local Courts Act and that the Chiefs had made a determination. A copy of the Chief’s decision is annexed as annexure “DL 1” to his affidavit. The matter then came before the Isabel Local Court de novo (see annexure “DL 2” annexed to his affidavit). The Isabel Local Court held that the inland boundary of the disputed land (“Rakata to Pigi Land”) claimed by Somana had already been determined in the Rakata Baitfish Case, which was incorrect, and ordered that the claim of Somana be withdrawn. Unfortunately, as pointed out earlier in this judgment, that was incorrect. The decision in the Rakata Baitfish Case was only confined to the coastal boundaries and sea boundaries. The inland boundaries of Rakata land were yet to be finally determined by the land courts. 

This evidence, which was not brought to my attention in the hearing before me on 3rd May 2002 in CC 256/01, thus sheds a different light to the conclusion, which would have been reached by this court in that judgment. When this court concluded in its judgment of 19th June 2002 that no land dispute had been commenced before the chiefs that was incorrect. Somana had actually reported a land dispute against Dika of Mamara clan and Casper Bana of the Etini clan, over the question of the boundaries of Rakata land and Fufuana land (see decision of the Kia House of Chiefs dated 28th September 1999 annexed as “DL 1” annexed to the affidavit of David Lenga Somana filed 3rd October 2002).

He was entitled to take up a land dispute under the Local Courts Act as the question of inland boundaries of Rakata land and Fufuana land had never been settled or determined in any land court previously. From my understanding of his claim, it seems that he is claiming to be the owner of all that land inland stretching from Fufuana to Rakata River, including the 1989 Land. I have taken the time to carefully go through all the previous court decisions over Rakata Land (this land has been the subject of many court cases and to some extent appears to have caused some confusion), but have not been able to find any binding decision which had dealt with the question of the inland boundaries of Rakata land and Fufuana land as between Somana and Dika. 

In the Rakata Baitfish Case, there was some mention and reference to the inland boundaries and perhaps that was how the coastal boundary of the Rakata Baitfish Ground of the Mamara clan may have been derived. The binding part of that decision however can only refer to the coastal boundary. The parties were not directly concerned with the inland boundaries. 

The Isabel Local Court thus was wrong in its decision of 28th May 2001, in directing that the land dispute reported by Somana on the issue of boundaries of the Rakata and Fufuana land, to be withdrawn on the grounds that the inland boundaries had already been determined in the Rakata Baitfish Case. The inland boundaries of Rakata land were not the subject of the dispute before the Isabel Local Court in the Rakata Baitfish Case. 

The Isabel Local Court in my respectful view should have proceeded on to determine the land dispute between Somana and Dika and Casper Bana. The parties may consider having the matter re-heard de novo by the Isabel Local Court.
 
Meanwhile, on 8th February 2002 by letter of same date, addressed to the Chief Magistrate (Exhibit “DLS 1” annexed to the affidavit of Somana filed 26th March 2002 in CC 256/01), Somana sought to have his appeal withdrawn. I quote:

“Dear Sir,

I refer to Rakata/Fufuana Land – LR 675/LR 674 David Lenga v. Selwyn Dika and others, Case No: CLAC 1/2000 that I wish to withdraw my appeal as per H/C order Civil Case 276 of 1999.

Secondly, that I wish to request from your good office the issue of Certificate of no appeal, since the Eti Eti and the Aramara (sic) clans have now come to a compromise to Rakata and Fufuana Land issue.”

The reason given for the withdrawal was that a compromise had been reached with members of the Eti Eti and Mamara clans. This paved the way for the issue of a Certificate of No Appeal on 12th February 2002 and thereafter the execution of a timber rights agreement between the Mamara clan and the Applicant, EDEL. Subsequently, a timber licence was issued in favour of EDEL.

The application for stay

I now turn to the orders sought in the Notice of Motion of the first Defendant filed 27th September 2002. Paragraph (1) of the orders sought a variation of the orders of this Court dated 19th June 2002. The first Defendant has correctly withdrawn that order conceding that those orders could not be varied, as they were final orders of the court.

The second order seeks a stay of the judgment of this court dated 19th June 2002 in CC 256/01 pending an “appeal” before the Court of Appeal. Unfortunately, this application is misconceived. This court cannot order a stay of its orders. It does have jurisdiction however, under Order 45 rule 19(1) of the High Court (Civil Procedure) Rules, 1964 to order a stay of execution of a judgment debt. 

A judge of the Court of Appeal however does have power to consider an application for stay of proceedings under Section 19(f) of the Court of Appeal Act (Cap. 6) as read with Rule 11(5) of the Court of Appeal Rules, pending an appeal. Unfortunately no such application has been made with regards to the judgment of this court of 19th June 2002 in CC 256/01. This court therefore has no jurisdiction to consider such application for stay of those orders. 

The third order seeks restraining orders against EDEL, its contractors, servants or agents against entering the disputed land for logging purposes. Unfortunately, before that can be considered, this court will first have to determine whether the interim orders issued by this court on 22nd August 2002 in this case should be discharged. 

Serious Issues 

I have already touched on this issue in this judgment and identified at least two serious issues pertaining to customary ownership. There is a serious issue on the question of customary ownership and boundaries of the Fufuana and Rakata lands. The other serious issue pertains to the question regarding the “transfer” of the 1989 Land to Somana in the “will” of Margarett Madi in 1974; whether this was valid in custom and whether this entailed the transfer of ownership rights or mere rights of usage. 

Sufficient interest

On the issue of sufficient interest, the first Defendant did initially show that he had an arguably sufficient interest to impugn the timber rights agreement of the first plaintiff by commencing a land dispute against the Mamara clan and the Etini clan under the Local Courts Act, on 28th September 1999 before the Kia House of Chiefs. Unfortunately the matter did not progress further up the ladder of the land courts due to the erroneous finding of the Local Court that the issue on the inland boundary of the Rakata land had already been determined in the Rakata Baitfish Case. 

Effect of the withdrawal of the appeal to the Isabel Customary Land Appeal Court from the Timber Rights Hearing in CLAC No. 1 of 2000

Despite the erroneous finding of the Local Court on the land dispute claim commenced by Somana, he still had opportunity to have his claim determined by the Isabel Customary Land Appeal Court, having jurisdiction over the area on which the land was situated. Unfortunately, he withdrew his appeal by letter dated 8th February 2001. On 12th February 2001 a Certificate of No Appeal was issued.

The effect of this withdrawal is significant as it creates an estoppel by record as against the first Defendant. By withdrawing his appeal he is estopped from taking up the matter further. But for that withdrawal, the first Plaintiff would not have proceeded on to have a timber rights agreement executed with EDEL, thereby altering his position to his detriment. Had the matter proceeded on to be heard by the Isabel Customary Land Appeal Court, a binding decision between the parties in any event would have been reached. That was not to be so because of the withdrawal of the appeal.
 
The first Defendant therefore cannot deny the fact that he has had all the opportunity there was available to him by law to have his claims agitated before a competent court of law (the Isabel Customary Land Appeal Court) having jurisdiction for the area in which the customary land was situated. By voluntary withdrawing his appeal, he had thereby conceded that the first Plaintiff was entitled to proceed under the Forest Resources and Timber Utilisation Act and to obtain a Certificate of No Appeal, which in turn entitled him to the execution of a timber rights agreement with EDEL and the issue of a timber licence also in favour of EDEL, granted by the Commissioner of Forests on 18th July 2002 under Licence No. A10114. 

The essence of the doctrine of estoppel is that it stops or bars the first Defendant from re-asserting his original position, which had been voluntary vacated by his withdrawal. He cannot now deny what he had initially agreed to or consented to by saying that the first Plaintiff was entitled to proceed under the Forest Resources and Timber Utilisation Act. 

Damages an adequate remedy

This brings me to address the issue of whether damages would be an adequate remedy. By virtue of the application of the doctrine of estoppel to the facts of this case, any losses, injury or damages thereby that may be incurred by the first Plaintiff must be borne by the first Defendant. I note no undertaking for damages has been provided or indications to that effect from the first Defendant. 

It is obvious to this court that the parties are all interested in having the said area logged. The first Defendant appears to have run ahead of the first Plaintiff and invited another logging company to enter the disputed area to do logging. The first Plaintiff and his contractor on the other hand have yet to commence. To that extent they have not incurred any damages as yet. They however have interest to protect their rights to carry out logging over the same area. 

In seeking to balance the scales of justice, it is my respectful view that the withdrawal of the appeal of Somana to the Isabel Customary Land Appeal Court must be viewed adversely against the first Defendant. It weakens his position to come to court for restraining orders against the first Plaintiff. So whilst it is acknowledged there may be serious issues as to customary ownership over the Fufuana and Rakata Lands, the orders sought in paragraph 3 in my respectful view cannot be granted.

ORDERS OF THE COURT:

1.	Deny orders sought in the Notice of Motion of the first Defendant filed 27th September 2002.

2.	First Defendant to bear the costs of the Plaintiffs.

The Court.