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Pita v Samo [2005] SBHC 68; HCSI-CC 466 of 2004 (25 May 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 466 of 2004

ABRAHAM PITA
(Representing his family of Dai Island)

-v-

VINCENT SAMO AND MINHO INVESTMENT LIMITED

Hearing: 22nd March 2004
Judgment: 25th May 2005

J. Apaniai for the Plaintiff
M. Bird for the First Defendant
A. Nori for the Second Defendant

JUDGMENT

Mwanesalua J: This is an application by the Plaintiff for the continuation of paragraph 2 of an ex parte order which the court issued on 15th October 2004. Paragraph 2 of the ex parte order is in these terms–

"2. That all royalties payable in respect of the logs felled and exported or to be exported from Feralalo land be paid into an interest bearing trust account to be opened in the joint names of the parties or their Solicitors and to remain there until trial or until further order of the Court."

The Background.

The Plaintiff is a resident of Dai Island. He resides on the Island with members of his family. One of his family members is Philip Baga who is his brother.

The First Defendant is a resident of Dai Island as well. On 26th November 1997, Philip Baga gave evidence for the First Defendant in the case of John I. Manui -v- Vincent Samo and John Dadalo – Malaita Local Court Case No. 6 of 1994 (the Local Court). On 29th November 1997, the Court held that John I. Manui had primary rights while Vincent Samo and John Dadalo had secondary rights over the ownership of Dai Island in custom. In his evidence, Philip Baga told the court that he was the owner of Feralalo, Kekeru, Kabeano, Matekwafuta and Tefou customary lands on Dai Island. The Court found that Philip Baga owned Matekwafuta Land on which he built Aibulu Tambu House.

The First Defendant is a Director of Dai Island Sawmill Limited. The Commissioner of Forest Resources issued Felling Licence No. A10142 to Dai Island Sawmill Limited on 9th May 2002 to conduct logging on Dai Island.

The Second Defendant is a Logging Contractor engaged by the First Defendant to carry out Logging on Dai Island through Dai Island Sawmill Limited.

The Defendants started their logging operation on Dai Island around July 2004. The Plaintiff discovered that the Defendants felled and extracted logs for Sale from Feralalo Land without the consent of his family on 1st August 2004. He immediately stopped the Defendants from carrying out any further logging on the Land as he and the members of his family claimed ownership of Feralalo land in custom. He then travelled to Auki and lodged a complaint to the Forestry Ranger against the Defendants for trespass. On 12th September 2004 a team of Forestry Officers inspected and made a report on the logging operation on Feralalo land. However, that report did not contain the number of logs extracted from the land. This led the Plaintiff to conduct a full inspection of the Land on 19th September 2004. He found and measured 211 logs in a log yard on the land. He gave his report on the logs to the Forestry Officer in Auki who calculated their value to be worth USD 72,670.00. The First Defendant also claimed ownership of Feralalo land in custom.

The Plaintiff reported a land dispute between himself and the First Defendant over the ownership of Feralalo land in custom to the Olemaoma Council of Chiefs on 5th October 2004 for determination. The Plaintiff filed a writ of summons and statement of claim on 13th October 2004 against the Defendants seeking inter alia, damages for trespass to land and damages for conversion of tress. The Plaintiff came to court on 15th October 2004 by way of ex parte summons to seek orders and the court issued an ex parte order to the Plaintiff. Paragraph 2 of that ex parte order is set out in this judgment and is the subject of these proceedings.

The Case for the Plaintiff.

The case for the Plaintiff is that paragraph 2 of the ex parte order be continued until trial or further order of the court.

The Case for the First Defendant.

The case for the First Defendant is that paragraph 2 of the ex parte order be discharged as the Plaintiff had no locus standi to ask for the ex parte order on 15th October 2004.

The First Defendant advanced the following grounds in support of his case. First, that the Plaintiff cannot now rely on the decision of the Local Court as it was annulled when he and John Dadalo appealed it to the Malaita Customary Land Appeal Court (CLAC(M)) and the High Court; Second, that the Plaintiff did not raise any objection to logging on Feralalo Land when Dai Island Sawmill Limited acquired timber rights over all customary lands on Dai Island; and third, that the dispute between the Plaintiff and the First Defendant over the ownership of Feralalo Land in custom was not heard by the Olemaoma Council of Chiefs.

The appeal by the First Defendant and John Dadalo against the decision of the Local Court was dismissed by the CLAC(M). (See judgment of the CLAC in Case No. 1 of 1998 dated 1st October 1999). However, their appeal against the decision of the CLAC(M) to the High Court succeeded. The High Court then remitted the decision of the Local Court to the CLAC(M) for re-hearing by different justices (see judgment in LAC No. 7 of 1999 dated 9th February 2001. There is no evidence to show that the decisions of the CLAC(M) and the High Court have annulled the decision of the Local Court on the findings that Philip Baga had customary ownership of Aibulu Tambu House and Matekwafuta Land. The Plaintiff could rely on these findings until they are either varied or set aside by the CAC(M) as and when the decision of the Local Court is re-heard. The Plaintiff also relied on the case because his brother Philip Baga told the court in his evidence that he owned Feralalo Land in custom (See p.53 of the Local Court transcript).

The First Defendant sought to prevent the Plaintiff from raising any objection against the logging operation on Feralalo Land as the Plaintiff did not raise such objection during the process when Dai Island Sawmill Limited acquired timber rights over all customary lands on Dai Island. The First Defendant did not adduce any evidence to show that the entire procedure for the acquisition of timber rights from customary land had been fully complied with before the Commissioner of Forest Resources issued Felling Licence No. A10142 to Dai Island Sawmill Limited on 9th May 2002. The Plaintiff could not be expected to raise any objection against the felling and extraction of logs for Sale from Feralalo Land if the full process of acquiring timber rights from that land had not been complied with in accordance with the provisions of the Forest Resources and Timber Utilization Act (Cap. 40).

A land dispute still persists between the Plaintiff and the First Defendant over the ownership of Feralalo Land in custom at the present time. The dispute arose when the Defendants felled and extracted logs for sale from the Land in August 2004. the Plaintiff referred the dispute to the Olemaoma Council of Chiefs for determination on 5th October 2004. In response, the Clerk to the Olemaoma Council of Chiefs told Counsel for the Plaintiff by letter on 29th October 2004 that the Chiefs would not hear the dispute. He explained that the customary ownership of Feralalo Land had already been decided and awarded to Philip Baga in the Determination of the Olemaoma Council of Chiefs dated 14th February 1996 and in the judgment of the Local Court dated 29th November 1997. I read the Determination of the Olemaoma Council of Chiefs and the judgment of the Local Court, and found that the ownership of Feralalo Land in custom had not been decided in either of them.

The Determination of the Chiefs dated 14th February 1996 merely showed that Vincent Samo and Alick Dadalo were the owners of Dai Island in custom. It also showed that certain parcels of land on Dai Island were given to other tribes. But the determination did not identify who gave away those parcels of land; the names, boundaries and locations of those parcels of land and the names of the tribes which received such parcels of land.

On the other hand, the judgment of the Local Court dated 29th November 1997 showed that John I Manui had primary rights while Vincent Samo and John Dadalo had secondary rights over the ownership of Dai Island in custom. The judgment also showed that Aibulu Tambu House and the parcel of land on which it was built were owned by Philip Baga. Philip Baga himself told the court in his evidence that he built Aibulu Tambu House on Matekwafula Land (see p.53 of the Local Court transcript) and not on Feralalo Land.

It is clear that both the determination of the Chiefs and the judgment of the Local Court referred to in this judgment did not decide the ownership of Feralalo Land in custom. The Olemaoma council of Chiefs may determine the land dispute reported to it by the Plaintiff. There was evidence though before the Local Court that the Philip Baga claimed ownership of Feralalo Land in custom. That evidence would be sufficient to give the Plaintiff standing to take action on behalf of his family in this case and to obtain the ex parte order from the court on 15th October 2004.

The Plaintiff seeks inter alia, damages for trespass and damages for conversion of tress from the Defendants in his action. The court has jurisdiction to deal with those matters provided he has a final decision on his ownership of Feralalo Land in custom from one of customary Land forums; that to say, the Chiefs, the Local Court and Customary Land Appeal Court.

While there are no tribal or serious issues before the court, there is a land dispute in existence between the Plaintiff and the First Defendant at the present time. The Plaintiff reported the dispute to the Olemaoma Council of Chiefs and is pending before that forum. He came to this court on 15th October 2004 and was granted an ex parte order. He now comes to court to seek continuation of paragraph 2 of the ex parte order. He took these actions in order to protect his interests over Feralalo Land and to maintain the status co between himself and the First Defendant pending the determination of their dispute by the Olemaoma Council of Chiefs.

While the court does not have jurisdiction to determine customary land disputes, it can assist chiefs by issuing appropriate orders that would maintain the status co between the parties pending the determination of Land disputes by the Chiefs. There are High Court decisions on this point [See for instance - John Osiramo v. Mesech Aeounia, Civil Case No. 020/2000, Nathan Kere v. Paul Karana, Civil Case No. 258/2000 and Ghemu Vaghi Mada, Allan Solomon, Cyril Elijah, Gerry Zutu (Representing the Voko Tribe) v. Viuru Forest Enterprises, Delta Logging Enterprises Ltd, James Rizu and Commissioner of Forest, Civil Case No. 207/2004]

It will take time before the Chiefs hear the dispute. The Plaintiff did not provide security to cover damages which might be sought by the First Defendant. I will discount the need for the Plaintiff to provide security for damages as the First Defendant will eventually receive the royalties if he wins the dispute over the ownership of Feralalo Land. However, the Plaintiff will be the loser if I discharge paragraph 2 of the ex parte order now and the Plaintiff subsequently wins. This is because all the royalties will have gone by the time the customary ownership of Feralalo Land is finally determined. I take the view that it would be in the interest of justice that paragraph 2 of the ex parte order issued on 15th October 2004 be continued until further orders of this court. Costs to be in the cause.

ORDERS OF THE COURT:

1. Paragraph 2 of the ex parte order issued on 15th October 2004 shall continue until further orders of the Court.

2. Costs in the cause.

F. Mwanesalua
Puisne Judge