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Efomauri v Olofia [2008] SBHC 102; HCSI-CC 444 of 2007 (4 November 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 444 of 2007

SIMON EFOMAURI, DANIEL FIDALOU, JACK UMA, EVAN FUTANOANE (Representing the Dalia’ala landowning Tribe)
Claimants

V

MATHIAS OLOFIA (Trading as Malaita Timber Trading)
1st Defendants

AND:

JOY ITAIA (Trading as Oceania Trading Company)
2nd Defendants

AND:

TONY UANIA (Representative of Mafu LPC)
3rd Defendants

AND:

ATTORNEY GENERAL (As representative of the Commissioner of Forest)
4th Defendant

IZUAKO, J.

Date of Hearing: 1 October 2008
Date of Ruling: 4 November 2008

A. Nori esq. for the 1st – 3rd Defendants/Applicants
D. Hou esq. for the Claimants

RULING

Izuako, J: This action was commenced on 26 November 2007 by four claimants namely Simon Efomauri, Daniel Fidalou, Jack Uma and Evan Futanoane as representatives of the Dalia’ala tribe.

It is their case that the defendants are liable for trespass and conversion in respect of the Fulo/Hulo reserve land and the Fulo/Hulo land below the High Water mark. The claimants also seek a declaration that their tribe is the only right party to enter into any agreement for the use of the said Fulo/Hulo reserve land and the Fulo/Hulo land below the High Water Mark.

Following an ex parte application moved on December 06 2007, the High Court granted an injunction restraining the 1st and 2nd defendants from paying any consideration to the 3rd defendant until the further orders of the Court and also a freezing order with respect to the proceeds of logs from the Fulo log pond for a sum of money not below SBD$100,000.00

In a further amended statement of case filed on 17 September 2008, the claimants state that they are members of the Dalia’ala tribe and that part of their land is called Hulo or Fulo in West Kwaio, Malaita Province. According to the claimants, their tribe did not consent to the granting of timber rights over the said land.

The claimants state that they are the direct descendants of four persons named Talepo sometimes spelt as Talaibo, Foquaine sometimes spelt as Fougwari, Utamiamia sometimes spelt as Uta’meana and Faimai also spelt sometimes as Faimae who were the vendors on the one part in an indenture made on 29 October 1908 with one Alexander Mackeller of Bauple, Queensland, Australia on the other part. The sale documents of 1908, according to the claimants, specifically excluded from the land sold a portion reserved for use of the four vendors, members of their tribe and their descendants who at this point in time are the claimants or members of the Dalia’ala tribe.

The reserved portion includes a village and garden site at Hulo or Fulo and later at the time of the Phillips Inquiry in 1920 it was extended to a point on the Northern Bank of the Lito Creek. The boundaries were agreed by Alick Kwaifiona on behalf of Fougwari (Fouquaine) and Talaibo (Talepo) and the Malayta Company representatives. These were later published in the Western Pacific High Commission gazette in 1926 at page 71.

The Claimants allege that the 3rd defendant entered into an agreement on a date unknown with the 1st and 2nd defendants to allow the said 1st and 2nd defendants to use the claimants reserve land, that is, the Hulo/Fulo land below the High Water Mark for a log pond and a logging access road. As a result, in the second half of 2006, the 1st, 2nd and 3rd defendants without permission of the claimants constructed a log pond on the Hulo/Fulo reserve land below the High Water Mark and also an access road through the reserved land to connect the log pond to the logging sites in other neighbouring customary lands of others further inland.

In addition to these unauthorised acts, the servants and agents of the 1st, 2nd and 3rd defendants extracted and removed gravel of economic value from the said reserve area without the permission of the claimants and used same in their construction of the access roads to the log pond.

The 1-3 defendants first filed a memorandum of appearance on 25 January 2008 but on February 6 2008 converted this to a conditional appearance. They also applied that the action be struck out for want of locus standi or want of jurisdiction.

In arguing the application A. Nori esq. for the 1st – 3rd defendants submitted that the indenture document does not mention that the vendors signed on behalf of the Dalia’ala tribe. He continued that the question as to whether the vendors were members of the Dalia’ala tribe and whether they executed the indenture on behalf of the tribe is a question for the Chiefs, the Local Courts and the CLAC to determine.

Learned counsel for the 1-3 defendants also submitted that in order for the claimants to claim descendens of the Dalia’ala tribe for the vendors and themselves is a matter for the Chiefs, the Local Court and the CLAC.

He also submitted that in order for the claimants to establish that they are direct descendants of any of the original vendors requires an investigation into genealogical linkage and tribal membership which are still issues within the competence of the Chiefs and Local Courts only.

Learned counsel submitted further that the log pond area and the area of reserve are customary land and that the case of Totoria & Others v Taiarata Integrated Forest Development Company Ltd and Others HCC 204/2000 and the principles established therein would apply. This, he said, is the principle that in relation to customary land, a party cannot come to court to seek damages for trespass unless that party has a final judicial determination which gives him or her the ownership of the land. Even if the claimants, he submitted rely on the findings of the Phillips inquiry prior to 1908, the report from that inquiry cannot be admitted as a final judicial determination. He further referred to S. 223 of the Land and Titles Act on the issue of determination of ownership of customary land.

On the issue of the names and spellings of the names of the original vendors Mr. Nori submitted that the claimants cannot change the names as they appear on the indenture document by simply deposing to affidavits in the High Court. According to counsel, only the Chiefs and Local Court have the expertise to inquire into the correctness of the names of the original vendors, not the High Court by affidavit evidence.

Mr. Nori finally submitted that the claimants lack Locus Standi to come to court. He added that the court may make an order for stay of proceedings until issues of land ownership are referred to the chiefs and Local Courts.

In his reply to the application and arguments advanced by A. Nori Esq. D. Hou esq. the Public Solicitor, conceded that the log pond area is customary land and may be sent to the Chiefs and Local Court. The Public Solicitor continued that the 3rd defendant who has raised the issue of ownership of land cannot do so since he is not a tribe and cannot own customary land.

No other group or tribe, he continued, is contesting the ownership of the claimant’s land. The claimants, he said, have filed an undertaking to commence a land dispute within three weeks with any tribe that seeks to dispute the lands in question with them. He referred the court to the full text of his written submission.

I now come to review the application by the defendants that the action of the claimants be struck out for want of locus standi. The kernel of the argument of Mr. Nori for the 1-3 applicants/defendants is that the claimants/respondents cannot be heard to speak or make their claims concerning the land in dispute until they can show that:-

(1) They are members of the Dalia’ala tribe

(2) The lands in issue belong to the Dalia’ala

(3) The original four vendors mentioned in the indenture documents are the direct ancestors of the claimants.

(4) The said four vendors are members of the Dalia’ala tribe.

(5) They have a final judgment in respect of the land in dispute.

Mr. Nori’s submissions rested on one plank – the determination of all the issues raised by him to be referred to the Chiefs and the Local Courts. According to the learned counsel for the applicants/defendants, it is not for the claimants to make depositions in the High Court about names and their spellings or in fact about change of names of the original vendors or the land in dispute. Only the Chiefs can determine if the Claimants are of the Dalia’ala tribe or descendants of the original vendors of the land, the subject matter of the indenture documents as matters of tribal linkages and membership can only be addressed with the expertise of the Chiefs and the Local Courts. Mr. Nori cited S. 223 of the Land and Titles Act as the legal authority establishing that issues concerning customary land are to be dealt with exclusively by the Chiefs and the Local Courts.

I have perused the said S.223 relied upon by Mr Nori. The said S.223 is irrelevant to this case and the submissions made as it deals with caveats. But S. 254 of the same law does provide as follows:

"A Local Court shall, subject to the provisions of this section,... (Sections 12, 13 & 14 of the Local Court Act) have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land".

A perusal of S. 12 of the Local Court Act referred to by S. 254 of the Land and Titles Act makes it clear that the Local Court shall not assume jurisdiction to hear and determine any customary land dispute unless, inter alia, the parties to the dispute had referred the dispute of the Chiefs. In other words, a customary land matter goes to the Chiefs at the instance of the parties laying claims to the disputed land.

In this matter, only the claimants who are of the Dalia’ala tribe are laying claim to the land. No other tribal group is contesting the ownership of the customary lands upon which trespass and conversion are alleged by claimants. There is therefore nothing to refer to the Chiefs or Local Court.

In a ruling dated August 21, 2008 in the case of CC 479/2004 Joseph Pa’asi & 4 others v. John Hero’au & 3others, I had expressed the view that matters of tribal membership which in essence speak to the identity of a person or indeed issues of a family tree or ancestorship are matters of fact which can be deposed to. If a person is asked where he comes from, it is natural to quickly say the name of his village and tribe and even of his ancestors. These are matters of fact as to his identity. We cannot refer him to Chiefs and the Local Court to determine that.

As to the question of whether the indenture documents of 1908 and the report of the Phillips Commission of 1920 constitute proof of title or ownership of the customary lands in question here, I find at this stage that these facts may only constitute evidence in support of the claimant’s case when the time comes to consider the said case.

I am of the view that the claimants have locus standi to bring this action. The court has jurisdiction to entertain the action. The application therefore fails.

A Nori esq. asks for 14 days to file a statement of case for the defendants and 14 days thereafter for reply. No objection by D. Hou esq.

Court: The defendants shall have fourteen days to file their statements of case and thereafter the claimants shall have fourteen days to file any replies.

Matter is adjourned generally.

Nkemdilim Amelia Izuako
Puisne Judge

Dated this 24th day of November 2008
At the High Court
Honiara