HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 38 of 2007

EZEKIEL MATENI
(Representing Unganakiki Tribe of Vangunu)

-v-

CHACHABULE AMOI,
JABETH MALA,
PITSON HAHATA,
TREVOR SENU AND
ROBERT QURI
(Representing the Tobakokorapa Tribe of Marovo),
COMMISSIONER OF LANDS
AND REGISTRAR OF LANDS

Date of Hearing: 27 July 2007
Date of Ruling: 1 August 2007

Wilson Rano for the Plaintiff/Applicant
No appearance of the Defendants on hearing 

RULING on Summons for judgment in default

Brown, J:

1.	The plaintiff claims as representative of the Unganakiki Tribe of Vangunu to be entitled to a declaration (in accordance with the finding of the Marovo Local Court given about the 19 November 1974) that the plaintiff is the rightful owner of the Perpetual Estate in land parcel no. 142-001-17.

2.	As a consequence, the plaintiff claims a further declaration that in view of the mistake (and I should say here the plaintiff points to no fraud so no fraud can arise on the material before me) about the rightful owner of the perpetual estate parcel, the Vesting Order signed by the Commissioner of Lands on 23 June 2006 in favour of the 1st defendants is void, ab initio. There upon the plaintiff seeks rectification of the Land and Titles register to have the plaintiff substituted as owner.

3.	The 2nd and 3rd defendants were served in about February 2007 with the Writ of Summons and Statement of Claim but there has been no appearance by either the Commissioner of Lands or the Registrar of Titles. By virtue of s. 4(3) of the Land and Titles Act, the Commissioner of shall have the power to institute or defend any proceedings under his official title. The practice has been for the Solicitor General to represent the Commissioner in such cases, although I am unaware of the appointment of a Solicitor General since previous Solicitor General Mr. Nathan Monshinsky QC relinquished the post in the predicamental circumstance late last year.

4.	Again the Registrar of Titles, by virtue of s. 6(2) of the Act also has the power to institute or defend any proceedings brought in his official title.

5.	On the 8th March 2007 Mr. Charles Ashley filed a conditional appearance which means an appearance in which the defendant reserves the right to apply to the court to set aside the originating process, either on the ground of some alleged irregularity which renders the process or the service of it invalid or on the ground that the court has no jurisdiction to entertain the action.

6.	Since the time of the conditional appearance Mr. Ashley has not filed any motion to impugne the plaintiff’s process but on the application by amended summons the plaintiff should give notice of his intention to proceed to Mr. Ashley. Mr Rano for the plaintiff has properly said that notice had not been given and I note that the Registrar’s Notice of Hearing proforma document does not mention A & A Legal Service (Mr. Ashley’s firm).

7.	I should mention that Mr. Rano has pointed to Justice Kabui’s ruling given on the 4 August 2003 as reason to make the declarations which the plaintiff claims. Kabui J was there dealing with an application by one Seri Hite, to strike out Ezekiel Mateni’s proceedings (joining Seri Hite as a defendant) whereby Ezekiel Mateni sought declarations (as to customary ownership of Muki Muki land) based upon the decision of the Marovo Local Court in 1974.

8.	It would seem that the plaintiff, Ezekiel Mateni in those earlier proceedings cc155/2003 was aggrieved by the action of Seri Hite in appealing the Western Provincial Government Executive’s decision of the 8 April 2003 determining that Ezekiel Mateni and Mendana Hagere were "persons entitled to grant timber rights on Muki Muki land". Mr Radclyffe (for Seri Hite) suggested the effect of such declarations would be to deprive the defendant, Seri Hite of his right of Appeal to the Western Customary Land Appeal Court under the Forestry Act.

9.	As obiter His Lordship said at 3, about the Local Court decision on ownership;

"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 grandson 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".

10.	Justice Kabui then as a ratio decidendi, said;

"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" and he went on the rely on Allardyce Lumber Co anors v AG; Commissioner of Forest Resources; Premier of Western Province and Paia and Gandly Simber v East Choiseul Area Council; Eagon Resources; Steven Taki and Peter Madada.

11.	In Amoi Chachabule v Quanahai Integrated Development Ltd (cc’s 192-495 of 2006 judgment given 18 May 2007; HC Final Judgment No. 53 of 2007) I sought to address the underlying reasons why s. 8 (3)(b) of the Forestry Act speaks of 

"persons proposing to grant timber rights… are the persons and represent all the persons, lawfully entitled to grant such rights and if not who such persons are;" and not landowner. I said at 10 "But for commercial expediency and with a view to circumventing the impossibility of a binding, lasting consensus amongst a disparate group of landowners (whose views and alliances often change over time) the Forestry Act has imposed a process to identify an individual or individuals able to contract and represent the interest of all landowners in logging agreements. That process does not purport to affect landownership but it does afford a developer or logger certainty of agreement with the duly appointed representative who remains responsible as land trustee to all other landowners of the portion for a fair distribution of benefits received according to customary entitlements of those landowner claimants." and again at 11"Representatives of these tribal groups need be found for system made law to achieve the resolution of disputes in all but the very simplest of communities".

12.	In other words, a representative or as is sometimes used, a land trustee need be found to represent the landowners for otherwise experience suggest there can be no real agreement reached with various tribal members over resource rights belonging to the tribe. That is why "system made" law attempts to provide for the needs of a tribal community keen to market its timber resource by sale to others willing to pay money, rather than goods or reciprocal obligation. For the purchasers of such timber familiar with the complex commercial relations involving bankers, shippers, overseas buyers and government regulations and charges let alone the actual logging in difficult terrain, need certainty of contract before entering upon the risk and that the "system made" law, by the Forestry Act attempts to provide.

13.	In similar vein, the Companies Act endeavours to provide for the business of manifold shareholders managed by directors in terms of a company entity, to facilitate a commercial purpose.

14.	Justice Kabui, on the 4 August 2003, struck out those earlier proceedings. He said 

"The originating summons is struck out as being quite unnecessary to advance the plaintiff’s case in the Western Customary Land 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 in ownership in custom. The plaintiff need not fear about ownership of land in the appellant forum (the CLAC)". 

Curiously the same plaintiff now comes again to this court complaining for he says a perpetual estate has been granted not to him as rightful owner, but others.

15.	In Civil Cases 192, 495 of 2006 Ezekiel Mateni had been shown to have sought to negotiate "timber rights" with Mendana Hagere over customary land know as Davala land. On the 3 April 2003 after a timber rights acquisition hearing, the Western Provincial Executive approved Ezekiel Mateni’s application for timber rights acquisition for Riki, Davala and Mukui muki customary land Vangunu". Later, Riki land was "demarcated out from the boundary of Davala land and Muki Muki land respectively".

16.	Mr. Ben Loumulo complained and appealed to the CLAC that Busimati tribe, (whom he represents) owns Davala land and consequently the other two named persons able to grant timber rights were wrongly named. The CLAC decision on the 17 October determined after hearing, that Ben Loumulo was the person entitled to grant timber rights on a portion of land called Davala.

17.	What was not affected, it seems was the Executive finding of the right in Ezekiel Mateni and Medana Hagere to grant timber rights over Muku Muki land. That finding would accord with the ownership decision by the Local Court in 1974 in these two’s favour.

18.	There is a "presumption of regularity" to be accorded acts of public officials in terms of statutory process. Here the Registrar of Tiles and Commissioner of Lands have been shown to have acted to recognise and accordingly grant and register a perpetual estate by vesting order in customary land to parcel no 142-001-17 to the respondent, Chachabule Amoi. In the circumstances which I have recounted however, the presumption omnia praesumuntur rite esse acta, must be doubtful.

19.	In the absence of both proper authorities and the 1st respondent, I am unwilling to proceed to determine this application.

20.	The proceedings shall stand adjourned to a fresh date for continued hearing. Notice of such hearing shall be given the respondents by the plaintiff and an affidavit of service filed before the date fixed. I expect representation on the two proper authorities part so that the basis of the vesting order can be explored.

THE COURT