HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 155 of 2002

OBED ALEMAENA AND LUKE ETA

-v-

BULACAN INTEGRATED WOOD INDUSTRIES (SI) LIMITED,
ATTORNEY-GENERAL, NELSON BAKO, DANNY BAKO,
WILSON PILAHA, MICHAEL BELAMA AND CLEMENT ALOFI.

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J.).

Date of Hearing: 11th May 2004
Date of Ruling: 13th May 2004

A. Radclyffe for the Plaintiffs.
A. Nori for the 1st Defendant.
P. Tegavota for the 3rd to 7th Defendants.
G. Deve for the 2nd Defendant.

RULING

Kabui, J: This is an application filed by the 4th Defendant on 7th April 2004 seeking the following order-

That the action by the first and second plaintiffs be struck out on the ground that the customary ownership of West Barora customary land had been determined by the Kia Council of Chiefs in favour of the third to the seventh defendants as represented by the third defendant.

The brief facts.

On 23rd August 2002, the Kia Chiefs Committee sat to determine the customary ownership of West Barora customary land. Dr Obed Alemaena did not attend the hearing by the Chiefs’ Committee. The determination by the Chiefs was in favour of the 4th Defendant and his line. The record of the hearing was confirmed on 26th August 2002 by two of the Chiefs and the Secretary. The unaccepted settlement form was filled in on the same date the Chiefs Committee made its determination.

The issue to be decided.

By a Writ of Summons and a Statement of Claim, the Plaintiffs made a claim against the 1st and 2nd Defendants for damages for trespass to land and for conversion of trees. The Plaintiffs also sought injunction and a declaration that Licence No. A10011 was void to the extent that it granted timber rights in respect to West Barora Ite customary land. The other Defendants were later joined in the action. A compromise having been reached between the parties, a consent order was signed by the parties on 12th February 2003. In the meantime, the issue of ownership over West Barora customary land went before the Kia Chiefs Committee which gave its determination on 23rd August 2002 in favour of the 4th Defendant and his line. The issue therefore is whether or not the Kia Chiefs Committee’s determination is sufficient in custom as part of the law of Solomon Islands as a basis for striking out the Plaintiffs’ action.

The decision of the Court.

I have no doubt about the validity in custom of the determination made by the Kia Chiefs Committee on 23rd August 2002. That determination can only be removed by substitution by the Local Court under section 13 (d) of the Local Court Act (Cap. 19) “the Act.” Counsel for the Applicant, Mr. Tegavota, cited the case of Eddie Muna and Smiley Muna v. Holland Billey and Toben Muna and Attorney-General, Civil Case No. 284 of 2001 in support of this application. That case was concerned with the discharge of an interim injunction, following a determination by the Council of Chiefs who found in favour of the opposing party and his line. Also, the party who had made the referral to the Local Court, based on assumed unacceptable settlement, was the party in whose favour the Council of Chiefs had made its determination, being the Defendant at the Chiefs’ hearing. This is not the case here where the determination by the Kia Chiefs Committee is being forwarded as being a ground sufficient to form the basis for the striking out of the Plaintiffs’ cause of action. Following the determination by the Kia Chiefs Committee, an improvised Form 1 was filled in and signed by all the five Chiefs who made the determination on 23rd August 2002, being the date of that determination. The Chiefs must have been conscious of the fact that the Plaintiffs did not attend the hearing and so their determination must obviously have been regarded by them as an unacceptable settlement under section 12 (2) of the Act. The improvised Form 1 was later followed by a letter dated 12th October 2002 signed by the Plaintiffs stating the extent of their dissatisfaction with the Kia Chiefs Committee’s determination and the reasons for not accepting the determination by the said Chiefs. So a referral to the Local Court is currently afoot. No hearing by the Local Court has yet taken place. To strike the Plaintiffs’ cause of action whilst the Chiefs’ determination is awaiting hearing by the Local Court is in my view, premature. Taking that step would suggest that the Local Court decision will not be any different from the Chiefs’ determination which no one is able to say until the Local Court hands down its decision. Whilst it is unfortunate the relevant Local Court is yet unable to sit due to lack of funds, it is not right to short-circuit the court process and cut out the Plaintiffs’ cause of action prematurely as is being asked for by the 4th Defendant and his line. Indeed, as pointed out by Counsel for the 1st Defendant, Mr. Nori, the determination by the Chiefs in this case is an encumbrance upon the land however that is being challenged by the Plaintiffs in the Local Court. The determination is not final. On that basis, the Plaintiffs’ cause of action is still alive. It cannot be struck out as yet. The application is refused with cost and is dismissed accordingly. 

F.O. Kabui
Puisne Judge