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Sokaqeavo v Kalena Timber Company Ltd [2004] SBHC 6; HC-CC 274 of 2003 (16 January 2004)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 274 of 2003

DUDLEY SOKAQEAVO
(FOR AND ON BEHALF OF THE WAGENA 2 TRIBE)

v.

KALENA TIMBER COMPANY LTD

High Court of Solomon Islands
(Palmer CJ)

Hearing: December 2, 2003
Judgement: January 16, 2004

A. Radclyffe for the Applicant/Plaintiff
G. Suri for the Respondent/Defendant

Palmer C.J.: The Applicant (“Plaintiff”) is the Chief of the Wagena 2 tribe and sues on behalf of his tribe. He claims his tribe is the owner of an area of customary land on Vella Lavella Island the boundaries of which stretch from Tobelepalae Point at the coast, inland up the Sielekoteki Ridge to Vadela, Vazakojako, through Tambusare to where it meets the Oula River at Silikekaipazokinie, then from Tobelapalae Point left hand side along the coast to Joroveto River and then upstream to where it meets the Oula River at Silikekaipazokini (hereinafter referred to as “the Wagena land”).

On or about 20^th March 2002 a hearing was convened by the South Vella Lavella Council of Chiefs (“Council of Chiefs”) to determine the claims of various tribes over an area of land known as Sarapaito land. Wagena land is a block or area of land within Sarapaito land. At that hearing the Wagena 2 tribe not only presented its claims but sought to be included in any negotiations for timber rights. This was backed by a letter signed on 21^st March 2002 by the Plaintiff. The Council of Chiefs determined that the Wagena 2 tribe should be included as one of the landowning tribes in Sarapaito land and to be consulted in any future negotiations.

On or about 28^th March 2002, the Defendant filed its Form 1 application under the Forest Resources and Timber Utilisation Act (“the Act”). No timber rights’ hearing however was ever convened pursuant to section 8 of the Act. On 4^th June 2002 the Western Provincial Executive (“WPE”) issued a Certificate of Customary Ownership (“Form 2”) listing the Plaintiff and Teddy Vovozo as one of the persons lawfully able and entitled to grant timber rights over Sarapaito land. This notice was based on the Council of Chiefs decision of 20^th March 2002. It is pertinent to note that the same certificate also included the Kurikuri Sarapaito as one of the other landowning tribes.

In spite of what was contained in this Form 2, the Plaintiff was omitted as a signatory to the Standard Logging Agreement and a Supplementary Agreement executed on 25^th July 2002. When the Form 3 Notice was issued, it also omitted the Plaintiffs tribe. However, when the licence was issued, the Plaintiff’s tribal land was included. This naturally upset the Plaintiff. Logging operations commenced in early 2003 and resulted in damage being caused to Wagena land; trees had been felled and removed and tabu sites destroyed.

As a result of this omission of the Wagena 2 tribe from the logging agreement, the Plaintiff referred the matter to the Council of Chiefs for consideration. They met on 21^st and 22^nd May 2003 and determined inter alia that:

“The several days of pondering has convinced the Council that the applicants (included the Plaintiff) have legitimate customary rights in Sarapaito land for which the Council resolved that should be considered in an encompassing bodies such as the original SAWAKANA logging arrangement which has been recommended by the Council’s resolution of Kuava hearing 20^th March 2003.”

In a second affidavit filed 28^th November 2003, Ngu Ketsiong deposed that a further chiefs hearing held at Maravari on 17^th October 2003 considered in detail the customary issues of dispute as between the Kurikuri Sarapaito tribe and the Wagena 2 tribe. It transpired that these were the two competing tribes claiming rights over the Wagena land. The Council of Chiefs determined that the Kurikuri Sarapaito tribe possessed primary rights over Wagena land whilst the Wagena 2 tribe only held secondary rights.

Effect of the Chiefs decision of 17^th October 2003.

This later decision is crucial to the claims of trespass and conversion of the Plaintiff. It dilutes his claim as a primary landowner having rights over the timber in Wagena land and has the effect of dislodging any earlier determinations that may have been drawn up by the WPE as contained in the Form 2. Until overturned, that decision has the effect of law on customary ownership over Wagena land (see recent decision of Brown J. in Eddie Muna and Smiley Muna v. Holland Billey and Toben Muna and Attorney General as representative of the Commissioner of Lands^[1]). I note there is no evidence of any referrals being made to the Local Court under section 12(3) of the Local Court Act (cap. 19).

Serious Issues?

The validity of the timber rights agreement and supplementary agreement executed on 25^th July 2002 and subsequently the validity of the licence as serious issues for consideration at this time must be balanced against the Council of Chief’s decision in favour of the Kurikuri Sarapaito tribe. Whilst it had been shown on one hand that the Plaintiff has an interest over Wagena land by virtue of the existence of the Form 2 and earlier general determinations of the Council of Chiefs (see determinations of 20^th March 2002 and 22^nd May 2003) confirmed by the latest determination of 17^th October 2003, that the Plaintiff has secondary interests or rights over the said land, that recent decision also makes quite clear where the primary rights lie. In custom, primary right holders are the persons entitled to make decisions over timber rights; however they cannot ignore the interests and rights of secondary right holders when it comes to disbursement/distribution of royalties. Usually over time secondary right holders become integrated or assimilated into the society or community having primary rights and therefore cannot be ignored for purposes of disbursement or distribution of royalties from the timber resources. What proportion they may be entitled to usually is an internal matter between the tribes to determine in custom.

In any event I am satisfied it has been shown on the balance of probabilities that by virtue of his secondary interests or rights, the Plaintiff would have the right to challenge the validity of the Form 2 issued and subsequently the timber rights agreement. He may even have right to challenge the validity of the timber rights by virtue of his exclusion from executing the timber rights agreement. This would depend so much on the question whether as secondary rights owners they would still be entitled or should be included as a representative landowner (trustee) over Wagena land.

Damages an adequate remedy?

The facts of this case reveal that the Plaintiff does not object in principle to the logging operations of the Defendant. Their grievance have been based more on the fact of their exclusion as signatories to the standard logging agreement executed with the company on 25^th July 2002. That exclusion raises the fear I guess of being excluded in turn from any royalty payments anticipated from the sale of the timber resources in Wagena land. Unfortunately, as far as the law is concerned at this point of time, by virtue of the decision of the Council of Chiefs of 17^th October 2003, a prima facie case exists which shows that the omission or exclusion from the timber rights agreement may not have been irregular or wrong after all. At the end of the day therefore if the Plaintiff should win his case, damages would be an adequate remedy. On the other hand, if the Defendant should win its case at the end of the day, it is uncertain whether the Plaintiff would be able to compensate them for any damages arising from the injunction. I note no undertaking has also been provided. These must be weighed against the discretion to issue an injunction.

But even if all things were equal, in assessing the strength of the parties’ case as a measure of last resort, the scales tilt against the Plaintiff. The Defendant is armed with a decision of the Chiefs which support the claim of the Kurikuri Sarapaito tribe as the rightful persons entitled to grant timber rights over Wagena land.

Having said that, I need only point out that as secondary right owners that does not rule out any entitlements the Plaintiff might have for shares from the royalties. What that proportion of their share would be in my respectful view would be an internal matter for their respective tribes to determine. I would have considered restraining orders over the royalties as an aid to the parties in this dispute in determining what their respective shares would be had that been asked for.

Joinder of the Kurikuri Sarapaito tribe as second Defendants

I am satisfied the Kurikuri Sarapaito tribe be joined as second Defendants in this case. They are a necessary party to the proceedings as the Defendants (Kalena Timber Company Limited) rights derive from their claims as the landowners over Wagena land and therefore the persons lawfully able and entitled to grant timber rights over the said land. The validity of the timber rights and licence stand or fall on their rights in custom as the persons lawfully able and entitled to grant timber rights over Wagena land.

Orders of the Court:

1. Application for injunction sought denied.
   
2. The representatives Milton Putaviri, Enoch Izoma, Nathan Rore, Jeffrey Kajapala, Nelson Potakana, Nelson Lekelalu and Jimmy Pizuqeto of the Kurikuri Sarapaito tribe be joined as the second Defendants in this case.
   
3. Costs of the Defendant to be borne by the Plaintiff.
   

The Court.

^[1] HCSI-CC 284 of 2001, 11^th December 2003 at 4 - 8