Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Savino v Bulona Forest Holding Company Ltd [2009] SBHC 70; HCSI-CC 209 of 2009 (2 December 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case 209 of 2009

BETWEEN:

BENJAMIN SAVINO, DANNY BESA, CHARLES MANETARAI, JAMES MANEBOSA AND FRED OSIFELO
Claimants

AND:

BULONA FOREST HOLDING COMPANY LIMITED
First Defendant

AND:

EARTHMOVERS SOLOMONS LIMITED
Second Defendant

AND:

GUADALCANAL PROVINCIAL EXECUTIVE
Third Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forests)
Fourth Defendant

Date of Hearing: 26 November 2009
Date of Decision: 2 December 2009

Mr. A. Hou for claimants
Mr. Afeau for 1st and 2nd defendants
Ms. Ziru for 3rd and 4th defendants

DECISION ON APPLICATION FOR INTERIM INJUNCTION ORDERS

Cameron PJ:

1. The claimants assert customary ownership over four parcels of land in East Guadalcanal where logging is occurring. They contend that they have not consented to this.

2. The licence holder (the first defendant) has a concession area in which it is permitted to log which includes the four parcels of land the subject of the dispute. However, it is common ground that those that granted timber rights to the licence holder did not include the claimants.

3. A relevant issue is how the land was described at and prior to the timber rights hearing which ultimately led to the granting of a timber licence which included that land within the concession area.

4. In the Form I application which preceded the timber rights hearing, the first defendants sought rights to log various lands including ‘Butobuto’ land. The first defendant maintains that the four parcels over which the claimants assert ownership are within the boundary of Butobuto land, and thus the land was correctly described. The claimants, however, contend that Butobuto land, over which they make no claim, is separated geographically from their four parcels (known as Vatupiu, Kolohachiha, Norodo and Latova customary lands).

5. A map was attached to Form I, showing the intended concession area as including the four parcels in dispute (though they were not separately named). Had the claimants viewed the map they would have seen that those four parcels were within the coloured boundary of the proposed concession area.

6. However, the claimants maintain that they did not view this map prior to, during or following the timber rights hearing on 16 August 2005. Some of the claimants attended that hearing. Richard Tohaniade a member of the Chacka/Nekama tribe of Longu, East Guadalcanal (the tribe which the claimants represent), deposed that during the timber rights hearing he asked whether the interests of other tribes including his tribe would be affected. His evidence is that the answer he received from a Father John Selwyn Besa’a on behalf of the Guadalcanal Provincial Executive (the third defendant) "was that members of other tribes who attended then should not ask questions as their tribes and/or their lands were not the subject of the timber rights hearing."

7. Richard Tohanidae in his sworn statement gave further evidence that the lands the subject of discussion at the timber rights hearing were described as Butobuto, Loavu and Bubulongu customary lands. He stated that as he understood his tribe had no interest in those lands, he and other members of his tribe did not ask any further questions and nor were they shown the Form 1 application including the map. Mr. Tohanidae’s evidence was corroborated by one of the claimants Fred Osifelo, who was also at the meeting.

8. In essence, the claimants allege that there was a misrepresentation at the timber rights hearing that the lands the subject of the application did not include their lands, and that therefore they had no interest in the matter. They say that this occurred when the land the subject of the application (which in fact included the disputed lands claimed by them) was wrongly described as Butobuto land (which they assert is in fact separate land owned by another tribe), and again when they were told by the body responsible for conducting the hearing (the third defendant) that the application did not concern their tribe.

10. No sworn statements were filed on behalf of the Guadalcanal Provincial Executive as to what occurred at the timber rights hearing, and in particular as to the specific assertions made by the claimants as to the alleged misrepresentations. This is despite the fact that there has been ample opportunity to do so.

11. The claimants state that they saw no public notice advertising the timber rights hearing, though there is evidence that this was published in the normal way. The claimants also state that they saw no public notices as to the outcome of the timber rights hearing, despite there being evidence that the result was published in the villages in the affected areas (including the village where most of the claimants live). The claimants assert that as such they did not appreciate that the lands identified for felling included their own, and therefore there was no appeal against the timber rights determination.

12. Subsequently a timber felling licence was granted to the first defendant on 3 January 2007. Then in about June 2008 the claimants observed that the defendants had constructed an access road through Vatupiu customary land (one of the parcels they claim ownership of).

13. The claimants subsequently made a claim of customary ownership of the four parcels of land to the relevant House of Chiefs, who met to consider the matter on 10 January 2009. The claimants assert that though there was no written decision, the Chiefs verbally decided that there was joint ownership between the claimants Chacha/Nekama tribe and the other competing tribe, the Ghaobata/Jili tribe. The claimants deposed that they are not satisfied with this outcome, and have referred the matter to the Local Court. That case is yet to be heard.

14. In this case, at least on the face of it, the normal procedures for obtaining a timber licence appear to have been complied with. Further, the concession area covered by the licence clearly incorporates the land now in dispute. To that extent the Court is hesitant about interfering.

15. However, if one accepts the claimants’ position that their lands fall outside Butobuto land, then for the first defendant to have used the description ‘Butobuto’ land when referring to those those lands in Form I would be misleading. Further, as a separate and distinct point, it would appear that the claimants or their representatives may have been told at the timber rights hearing that the application did not concern their tribe and not to ask questions, when in fact if the claimants are correct then it very much concerned their tribe. There is therefore an arguable case that in two respects there has been a misrepresentation of the true position to the detriment of the claimants.

16. I am conscious that the competing tribe, the Ghaobata/Jili tribe, is not a party to this application or the claim. However, their principal interest will no doubt lie in continuing to assert competing ownership to the four parcels of land in dispute, rather than in what transpired between the claimants and the defendants during the timber rights process.

17. In my view, the balance of convenience clearly favours orders which effectively exclude the disputed areas from the concession area covered by the licence, pending clarification of ownership of those four parcels of customary land. In this respect I doubt that an oral decision of the Chiefs (if it in fact it was made) is sufficient for the purposes of invoking the jurisdiction of the Local Court, so it may be preferable for the matter to return first to the House of Chiefs for a written decision prior to the matter being pursued in the Local Court. However, that is a matter for the parties.

18. There are no clear boundaries to the four parcels of land in dispute, namely Vatupiu, Kolohachiha, Narodo and Latova customary lands. It is common ground, though, that they are included within Coups C-05 and C-06 on the first defendant’s map, exhibit "JA1", annexed to the sworn statement of John Ada dated 30 July 2009. The fact that the blocks may also include land owned solely by the Ghaobata/Jili tribe which is therefore legitimately the subject of the timber licence can be dealt with by granting the defendants leave to apply further on notice to exclude any identified portions of C-05 and C-06 in this category from the restraining orders I now propose to make.

19. I make the following orders:-

(a) An order restraining the first and second defendants, their servants and agents from conducting any logging operations or related activities within those parcels of land delineated as blocks C-05 and C-06 on the first defendant’s map exhibited to John Ada’s sworn statement of 30 July 2009.

(b) An order that by 11 December 2009 the first and second defendants provide the claimant with a full documentary account of all economically valuable logs felled within those blocks, and full details of all such logs currently sold and unsold including sale prices achieved and net profits achieved.

(c) An order that the first and second defendants remove all logging related machinery from blocks C-05 and C-06 by 4 December 2009.

(d) An order that once the logging related machinery is removed and in any event by 5 December 2009 at the latest the first and second defendants their servants and agents be restrained from entering blocks C-05 and C-06 for any purpose whatsoever including the use of it for vehicular access.

(e) Granting the first and second defendants leave to apply on 7 days notice for a variation of the restraining orders so as to exclude defined areas within blocks C-05 and C-06 but not including Vatupiu, Kolohachiha, Narodo and Latova customary lands.

(f) Leave to apply further granted to all parties on 7 days notice.

(g) These orders will continue in force until further order of the Court.

(h) Costs in the cause.

20. I now adjoin the claim sine die, so as to enable the customary land claim to Vatupiu, Kolohachiha, Narodo and Latova lands to be determined by the Council of Chiefs and Local Court if necessary. Thereafter, the matter can proceed further in this Court if required.

BY THE COURT

Justice IDR Cameron
Puisne Judge