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Lomulo v Amoi [2011] SBHC 160; HCSI-CC 332 of 2007 (7 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 332 of 2007

BETWEEN

BEN LOMULO
First Claimant

And

OMEX Ltd
Second Claimant

And

CHACHABULE AMOI
First Defendant

And

ROLLENS REBI and JAMES PULEIPU
Second Defendants

And

ATTORNEY GENERAL
(Representing the Commissioner of Forests)
Third Defendant

Mr Tegavota for the First and Second Claimants
Mr Ashley for the First Defendant
Mr Rano for the Second Defendants
Mr Damilea for the Third Defendant

Date of Hearing: 15th November 2011
Date of Judgment: 7th December 2011

Ruling on preliminary issues

1. Out of curiosity I searched the High Court database for cases which involve roughly the same parties, issues and land in this case. I stopped counting when the number reached 15. It is unfortunate that there have been so many cases. Even based on a conservative estimate of costs the parties have probably spent over $500,000.00 in legal fees alone. The cases have ranged over a number of issues, including rectification of title under the registered land scheme, injunctions and the process leading to the issue of a felling licence.

2. Not only is there a plethora of cases there is a plethora of names for various pieces of land and/or tribes. In the evidence there is reference to Ghoanahai land, Riki land, Davala land and Mukimuki land. There is also reference to land names which seem to be interchangeable with tribal names such as Topakokorapa (or Tobakokorapa) and Bareke. There are probably other names as well but this case is primarily concerned with Davala land.

3. Even when dealing with what is supposed to be before the court now there isn't agreement about the issues. The Claimants say the issues are:-

i) Whether the decision of the Western Customary Land Appeal Court ("WCLAC") handed down on 17th October 2005 binds the Second Defendants;

ii) Whether the decision is contrary to the principles laid down in the Majoria case [1] and therefore null and void and;

iii) Whether the timber rights agreement (20th March 2005 First Claimant and Qoanahai Integrated Development Company Ltd) and the felling licence issued to the latter on 1st March 2006 are valid.

The Second Defendants agree with i) but set out ii) differently. They say the question is whether the WCLAC decision is valid to the extent that it purports to undermine a previous decision of ownership. They do not mention iii).

The Third Defendant concentrates on the question of the proper process to be followed in the Forest Resources and Timber Utilisation Act [Cap.40] ("FRTUA").

The Second Claimant stands or falls with the First Claimant and the First Defendant supports the Second Defendant.

4. What led to this case is set out in the sworn statement of Burnley Kimitora filed 12th April 2011. A synopsis indicates that a Form 1 application was made under the FRTUA by Ezekiel Mateni. It covered three areas, Mukimuki, Davala and Riki. This was in October 2002. A timber rights hearing took place on 3rd April 2003 and the Western Provincial Executive determined that Ezekiel Mateni and Mendana Hagere were the persons lawfully able and entitled to grant timber rights in respect of Mukimuki land and Davala land. Two appeals were filed with the WCLAC; one by the First Claimant and one by Seri Hite. The former was in respect of Davala land the latter in respect of all three areas of land. The appeal took some time but on 17th October 2005 a decision was handed down. Prior to the decision Seri Hite had been negotiating with Mateni and Hagere. An agreement was reached and as a result Hite withdrew his appeal. In actual fact then the only appeal dealt with by the WCLAC was that of the First Claimant. The WCLAC decision was:-

(1) Quash the determination of the Western Provincial Executive

(2) Afresh the matter

(3) That Ben Lomulo is identified as a person to grant timber right on a portion of land called Davala land

(4) No Order for cost

Whilst on the face of it the decision sets aside the whole of the determination of the Western Provincial Executive it is clear the WCLAC were only dealing with that part of the determination which affected Davala land. It is also clear the parties to the appeal were Mateni, Hagere and Lomulo.

5. In submissions by the claimants a concession is, quite rightly, made that "..the decision of the CLAC(W) did not bind the Second Defendants as they are not parties to the CLAC case. That decision only binds Ezekiel Mateni and Mendana Hagere who were parties to that case". The Second Defendants' submissions seem to contain a typographical error because it is said, "In the case of customary land decisions it was held in Talasasa v. Paia [1980- 1981] SILR 93 that decisions of this nature are decisions in rem". The case decided entirely the opposite and so it is assumed the word "not" is missing before the second "decision" in the sentence. It is a reasonably safe assumption to make because if the WCLAC decision is held to be a judgment in rem it would severely harm the Second Defendants' case. In any event it is well settled in this jurisdiction that decisions of the customary courts are decisions inter parties and not in rem. The short answer to the first issue raised is, unless the Second Defendants are of the same line or part of the same line as Mateni, Hagere or Lomulo they are not bound by the decision of the WCLAC. It does not appear to be any part of the Claimants' case that there is any such connection between the Second Defendants and the parties to the WCLAC case.

6. The long answer would have to carry the reservation that third parties having dealings with the Mateni, Hagere or Lomulo would be bound by the decision in respect of those dealings.

7. The second issue is somewhat more esoteric. There is no short answer to the questions as set out by the Claimants or the Defendants. A short answer would be unhelpful to both sides in any event and what lies behind the questions needs to be examined.

8. In 1971 the Marovo Native Court heard a case involving T Koni and J Rebi. The court decided J Rebi was the owner of Ghoanahai and Riki lands. Koni appealed to the High Court and the appeal was heard by Bodily CJ as Native Land Appeal No. 5 of 1972. His Lordship's judgment is set out beginning at page p 92 of the court book. It (and the Native Court decision) was originally exhibited to the sworn statement of Seri Hite filed on 13th November 2009 on behalf of the Second Defendants. It should be noted that in the appeal case the Respondent is called Repi but there is no doubt Repi was the Rebi in the Native Land case. Bodily CJ set out the issue before the court;

"The issue before the Native Court was therefore, when the appellant's line (it should be remembered the appellant was Koni) left the land following the call of the missionaries did they intend to abandon the land or not".

His Lordship concluded;

"I think the court had evidence upon which they could conclude as they did, namely that the land was abandoned and that when Repi and his people settled upon it they were entitled to regard it as their own and live there. If a land owning group desert their land and leave no line members in occupation of any part of it or persons occupying by permission from time to time in any part of it, for as long as fifty eight years, as is the case here, they can scarcely be surprised if the conclusion is drawn that they have abandoned the land and are no longer interested in it."

His Lordship later says of abandonment;

"And this would seem to be in accordance not only with native custom generally applicable in the Solomons as I understand it to be but also in accordance with common sense."

The appeal was dismissed and His Lordship's decree was;

"The above named appellant and all members of his line have no beneficial interest in native customary tenure in any part of the land known as Ghoanahai..."

There then followed a long description of the land and reference was made to a map annexed to the decree. I can find no suggestion in this case that Ghoanahai land does not include Davala land. The Second Defendants are descended from Rebi. The First Claimant is descended from Koni.

9. In 1974 there was a case before the Western Magistrate's Court. It involved two appeals from a decision of an acquisition officer. The Plaintiffs are named as Mendana Hahata and Ben Lomulo. The land involved was Topakokorapa (claimed by Hahata) and Davala (claimed by Lomulo). A copy of the decree can be found at page 98 of the court book and was also originally exhibited to Seri Hite's sworn statement filed 13th November 2009. The Magistrate found that Topakokorapa was "partly" within Riki land. The Magistrate referred to the Native Land appeal (see above) and indicates that;

"...Topakokorapa in this case is the remaining land at Kachekache peninsular excluded from the High Court's decision on Native Land Appeal Case No. 5 of 1972."

The magistrate said he did not clearly understand why the land had been excluded in the earlier case; he thought that it might have been connected to the case he was dealing with. He decided;

"....it is clear that the appellant (Hahata) has abandoned this area for a long time and that the defendant has been occupying it all his life."

In other words the magistrate followed what Bodily CJ had accepted in respect of the rest of the land. He said that the trustees for the whole of Topakokorapa must remain with Jonah Rebi, Aaron Rebi, Rollens Rebi Jim Nogu Kinio and James Puleipu.

10. The magistrate then turned to Davala land. He found the Appellant (Ben Lomulo) was a relative of Koni who "lost the land against the same defendant in previous cases". In other words, Davala land was within Ghoanahai and Riki lands which had been found to be "owned" by the defendants in the High Court case. He again decided the trustees should be Jonah Rebi, Aaron Rebi, Rollens Rebi Jim Nogu Kinio and James Puleipu.

11. What this all means, as between the First Claimant and the Second Defendants, is that Davala land is owned by the Second Defendants. There is a suggestion that the First defendant is related to Rebi as well. If he is of the same line then his claim to ownership of Davala land, as against the First Defendant, is superior. Given Bodily CJ's comment, "The above named appellant and all members of his line have no beneficial interest in native customary tenure in any part of the land known as Ghoanahai..." it might be thought the First Claimant has no superior claim to anyone. However a decision of the customary courts, and His Lordship was dealing with an appeal from such a court, is a decision inter parties. In other words, the appeal case did not deal with any rights Koni and his descendants had against Mateni and Hagere's line.

12. Of course the mystery in this case, which no one has seen fit to explain, is who are Mateni and Hagere. Is, for example, Mendana Hagere the same person as Mendana Hahata? There is no evidence or information to help in answering these questions. The impression gained is Mateni and Hagere are from the Mukimuki tribe but no one has produced any evidence or information as to how they fit in to all this. If they are part of the Rebi's line then they would have a better claim than Lomulo. The WCLAC decision could possibly be faulted on that basis. The reasoning in Majoria's case [2] leads to that inevitable conclusion. I do not doubt that had the High Court cases 192 of 2006 and 495 of 2006 been heard by Brown J after the Majoria case the result might well have been different. Be that as it may, as there is no evidence of where Mateni and Hagere fit into this particular jig-saw puzzle it is difficult to see how the WLAC can be faulted. If they are not related in any way to Rebi then the WCLAC were perfectly entitled to say that Lomulo had a better right than Mateni and Hagere to grant timber rights. That is not the same as saying the First Claimant had a better entitlement than the Second Defendants to grant timber rights. The decision by the WCLAC has in no way affected the previous decisions of the Marovo Native Court, the High Court or the Western Magistrate's Court. As between the Second Defendants and the First Claimant there is absolutely no doubt as to the ownership of Ghoanahai land which includes Davala land. It belongs to Rebi's descendants. Koni's descendants abandoned all claim to it. If, as surmised, the First Defendant is connected to Rebi's line then he too has a superior claim to ownership of Davala land than does the First Claimant.

13. The difficulty in providing an answer to the second issue in this case is the very nature of the decision of the WCLAC. As set out at paragraph 5 above it has long been held that decisions handed down by customary courts, particularly with regard to ownership of customary land, are inter parties. This may be at odds with the requirement set out in section 8(3)(b) of the FRTUA. The Western Provincial Executive were required to determine whether:-

"The persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights.."

They made a determination that Mateni and Hagere were the persons lawfully able to grant timber rights. The appeal to the WCLAC was against that determination. Ever since Talasasa v. Paia and Another [1980] SBHC 2; [1980-1981] SILR 93 the customary courts have been conditioned into deciding disputes about customary land ownership on an inter parties basis and the appeal before the WCLAC was dealt with, as is clear from the judgment, as being only between Lomulo on the one side and Mateni and Hagere on the other. The WCLAC, in the absence of any evidence of a clan or tribal link between the Respondents before them and Rebi, would not have thought there was any need to consider the 1972 High Court case involving Koni and Rebi. However, in the excerpt from section 8(3)(b) quoted above the word "all" is emphasised and it might be said the WCLAC were required to do exactly that, in effect make a judgment in rem. In order to do that the WCLAC would have had to look at all previous cases involving the land. Paraphrasing the words of Daly CJ in Talasasa, I would be most reluctant to hold that a judgment in any customary land case was required to be, in effect, a judgment in rem. There is no reason to treat an appeal against a determination under the FRTUA any differently than an appeal from a Local Court to a Customary Land Appeal Court.

14. Accepting the WCLAC was only concerned with the status of the parties before it, the answer to the second question posed by the claimants is no. The decision of the WCLAC dated 17th October 2005 is not null and void by reason of it being contrary to the principles laid down in the Majoria case because there is no evidence of any previous cases involving Lomulo as one party and Mateni and Hagere as another. The Majoria principles did not therefore arise.

15. As regards the Second Defendants' slightly differently phrased question, to all intents and purposes the issue does not arise. The decision of the WCLAC does not purport to change the judgment in the 1972 case as between Rebi (and his descendants) and Koni (and his descendants) in respect of Ghoanahai/Riki land or the 1974 magistrate's decision in respect of Hahata and Rebi (and others) and Tapokokorapa/Riki land and Ben Lomulo and Rebi in respect of Davala/Riki land.

16. All the previous decisions remain intact and effective so that Koni's descendants cannot say as against Rebi's descendants, they own Davala/Riki land. Nor can Hahata's descendants, as against Rebi's line, say they own Tapokokorapa/Riki land.

17. Having decided that the WCLAC did not come to a decision which "undermined" previous judgments and which was therefore contrary to the decision in Majoria there is no need to consider the implications of section 10(2) of the FRTUA. It is not necessary to examine whether the WCLAC acted in excess of its jurisdiction. All that needs to be done in that regard is to remind the reader of the advice from the Court of Appeal in the Veno case [3];

"A useful starting point for a consideration of the supervisory powers of courts of general jurisdiction is Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147".

18. It is also unnecessary to make any decision about either the timber rights agreement or the felling licence. If a ruling either way on those two elements was given it would not affect the final result because a crucial difficulty faced by anyone wanting to log on customary land is section 40 FRTUA. It is worth setting out the section in full;

No licence or permit issued under this Act shall convey or be construed to convey any right which the Government does not have and in particular no such licence shall convey nor be construed to convey any right or authority to enter any private land nor take any action with respect to anything without the authority of the owner of that land or thing.

There is no doubt that the Second Defendants own the land described in the Native Land Appeal case in 1974. If anyone who does not have proven superior rights of ownership to them enters the land or takes anything away from the land without the their permission or authority, the interlopers may well end up being liable in trespass and/or conversion.

19. It is unclear whether this ruling will dispose of the case. It should do because, on the face of it, the First and Second Claimants are unlikely to succeed with the Amended Claim filed on 7th October 2009. Even if they partly succeeded, by obtaining a declaration the licence was valid, for the reasons set out above it would avail them nothing. The Second Claimant would still need the permission of the landowners (Rebi's descendants) to carry out logging. Likewise the Second Defendant is unlikely to succeed in all of its Counter Claim filed 28th October 2009. I will allow the parties legal advisers to consider this ruling and it is suggested they ask the Registrar of the High Court to fix a mention or directions appointment in the New Year which can deal with the future conduct of this case and the question of costs.

Chetwynd J

^[1] Majoria v. Jino [2007] SBCA 20; CA-CAC 36 of 2006
^[2] Majoria v. Jino [2007] SBCA 20; CA-CAC 36 of 2006 (1 November 2007)
^[3] Veno v. Jino [2006] SBCA 22; CA-CAC 002 of 2004