IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 198 of 1997

BETWEEN

JUDAH SAKIRI, SOLOMON RONI, STANLEY BASOE,
COLIN BIKALA, NICELY ZONGAHITE, WILLIE DEI
KAMA, SIMON SASAE, NELLIE PIO, ALPHONSE
DAGA and BILLY GINA ZINGHITE
First Claimants

And

HUGH PAIA and ALESASA BISILI
Second Claimants

And

GOLDEN SPRINGS INTERNATIONAL (SI) Ltd
First Defendant

And

NORTH NEW GEORGIA TIMBER CORPORATION
Second Defendant

And

JOSEPH ZIO, HARON TITI and JACOB GASI
Third Defendants

And

WARREN PAIA
Fourth Defendant

Mr Radclyffe for the First Claimants
Mr Kama for the First and Second Defendants
Mr Tegavota for the Third Defendants
Mr Marahare for the Fourth Defendant
Ms Tongarutu (not appearing) for the Second Claimants

Date of Hearing: 11th May 2011
Date of Judgment: 31st January 2012

Ruling on preliminary issue

1. This is an application for a determination of a preliminary issue. The application was made on 4th March 2011 on behalf of the Second Claimants. There was a delay in hearing the application because of queries as to who amongst all the parties was still alive. That was dealt with by an order on 17th March 2011. The parties are as set out in the heading above. The preliminary issue was set down for the hearing on 11th May. On that day Ms Tongarutu was unable to attend because of illness. However, the parties wanted an end to this long running saga and orders were made for the application to be dealt with by written submissions. A date was fixed by which they had to be filed but some were late and some not filed at all. Unfortunately the file was not brought to my attention again until November of 2011.

2. The application asked for a determination as to;

"Whether the customary land boundary and ownership between Koroga land of Kusaghe and Kazakuru Right Hand Land had been judicially and finally determined in light of the various judicial decisions and determinations namely: 

i) Judge Philips Formal enquiry on Kusaghi land Claim No. 34, 1925

ii) Western Pacific High Court decision in Civil Appeal Case No. 11 of 1974 as between Milton Talasasa and Nginabule Nato –v- Silas Eto (the Holly Mama) and Ruben Quabule.

iii) NNGTC Land Concession Enquiry 1979 and NNGTC Act [Cap. 43]

iv) CLAC (W) case No. 6 of 1979

v) High Court case No. 2 of 1980."

3. It is a sad reflection on the "progress" made in this case that the court is being asked to make preliminary rulings on a matter which was started some 15 years ago. The First Claimants (Plaintiffs) are the trustees of Kazakuru Right Hand Land ("KRHL"). It is said they or their predecessors were identified as timber rights owners in respect of KRHL. The Second Claimants are also said to be "persons lawfully identified….. as timber rights grantors" for KRHL. Both claimants say the First, Second and Third Defendants have trespassed on KRHL. The First Defendant is a logging company and has been logging the Second Defendant's concession area. The Second Defendant is a corporation established by statute  whose principal object is to promote the utilisation of timber resources of North New Georgia. The Third Defendants claim ownership of customary land called Koroga land, which is in the area logged by the Defendants. The Fourth Defendant is the representative of the Voramali tribe who claim ownership of KRHL. They started life as Plaintiffs in Civil case 149 of 1997 claiming trespass and conversion against the First and Second Defendants. As is admitted in the pleadings and confirmed in sworn statements and submissions, logging has taken place. The issue (leaving aside the inter-tribal dispute between the Claimants and the Fourth Defendant) is this, is part of the area logged on KRHL or is it all within Koroga Land? Put even more simply, this is a dispute about the boundary between KRHL and Koroga land.

4. The one certainty in this matter is there have been many cases which have touched on the land in dispute in one way or another. The application seeks a ruling on whether any of those cases has resulted in a decision which would resolve this matter. Dealing with the last case listed, the answer in respect of that case, is no. As far as I can tell from the High Court Register, Civil Case No.2 of 1980 was between PKR Pacific Sales Ltd and Yee Bing and Others.

5. However, Land Appeal Case No. 2 of 1980 is Talasasa ats Paia and Another. It can be found in the Solomon Island Law Reports 1980/1981 at page 93 (and in the First Defendant's book of authorities). It contains perhaps the leading judgment on the question of res judicata in relation to customary land disputes given by Daly CJ and as such is a well-known, often quoted case. It certainly involved the boundaries of KRHL. However, it mainly involved the boundaries of KRHL and Kazakuru Left Hand Land. There is no dispute that Koroga and KRHL share a boundary but it is not the boundary litigated in LAC No. 2 of 1980. The boundary being litigated was well to the west of what is now contested. It is also clear the parties involved were solely from Kazakuru land, being either descended from Gulamali or Voramali, and their ancestry is different from the Kusaghe (or Kusagi) people who are the Koroga land owners.

6. The second to last case is said to be Customary Land Appeal Court (Western) case No. 6 of 1979. No copy has been provided as far as I am able to ascertain. However the appeal in LAC No 2 of 1980 (see paragraph 4 above) is the appeal from CLAC (W) No.6 of 1979. The same comments would apply. 

7. The third to last judicial authority is said to be the North New Georgia Timber Corporation Land Concession Enquiry 1979 and North New Georgia Timber Corporation Act [Cap. 43]. No material has been produced from the enquiry. What was said in or what was established by that enquiry must remain, so far as this court is concerned in this application, a mystery. As for the Act, there is some help. Section 2 sets out a definition of the New Georgia lands. It refers to Schedule 1 to the Act. There is a more comprehensive description in Schedule 1 by reference to several areas of land, including Koroga, and by reference to a plan. According to the sworn statement of George Charles Murray-Scott (now so old it was filed as an affidavit) filed 7th April 1998 this is a reference to Plan No. 2189 and a copy of that plan is attached as an exhibit. Very useful and conclusive evidence one would surmise. However, in Schedule 1 there is the clear qualification that, "… where there is any conflict between the plan of the lands and the description of the southern boundary, the description shall prevail for all purposes" (my emphasis). With such a qualification it is impossible to say Plan No. 2189 is final and conclusive evidence of the boundary of Koroga land.

8. The second listed judicial authority is Civil Appeal Case No. 11 of 1974 Milton Talasasa and Nginabule Nato –v- Silas Eto (the Holly Mama) and Ruben Quabule. It was an appeal from the Magistrates' Court which had dealt with an appeal from a Land Acquisition Officer. It deals with Lot LR 731 which is Koroga land from Baeroko to Meka River. The First Defendant says (in submissions) it dealt with land from Enoghae to Meka. That is not correct. The heading states it is a Land Acquisition Appeal, Lot 1 LR731 – Koroga Land – New Georgia (Baeroko – Meka Rivers). In replies to the Claimants submissions the First Defendant says, "…it is most likely that the boundary of the proposed lease would be much smaller in size than the whole of Koroga land". That's as maybe, the point is it puts the western boundary of Koroga land at the same place as the western boundary, as established in several cases, of KRHL. It is noted from the earlier sworn statement of Mr Murray-Scott (said to be filed 17th December 1997 in Court of Appeal case No. 9 of 1997 but probably refers to No. 19 of 1999) that the proposed lease or leases were never proceeded with by the Government. A letter from the then Commissioner of Lands, Mr D G Ruthven, exhibited to the sworn statement explains why. Even if the lease or leases were never completed, the confirmation by the High Court of the Magistrates' Court decision, on appeal from the Land Acquisition Officer, cannot be ignored. The Land Acquisition Officer, the Magistrate and finally Chief Justice Bodily reached a judicial conclusion and that is best set out in the penultimate paragraph of His Lordship's ruling;

By determination of the Philips Commission in 1925 two chiefs were found to be the true representatives in custom of the line occupying Koroga land. They were Lala and Jonga. The decision was a judicial one and final. Therefore today the true representatives of the same land must be the nearest relatives of those two persons together with any other persons who, by agreement of those two persons, the lines wish to be their trustees. Neither Milton Talasasa nor Nginabule Nato are in any way closely related either by male or female descent to Lala or Jonga and therefore their claims to trusteeship must fail in any event as the Magistrate decided".

Unfortunately the finding is in relation to occupation and ownership of Koroga land but does not deal with the boundary between that land and KRHL. It does, by implication, suggest that Koroga land extends to the Mbaeroko River but there is no indication as to the evidence which might have supported that possibility. Because the land was never leased no register plan of Lot 1 LR 731exists. It would seem from Mr Murray-Scott's affidavit no final plan was ever produced. Apart from the description in the heading no other details exist about the extent of the land which was the subject of the acquisition proceedings.

9. Having said that, it does raise the intriguing possibility that KRHL is not the approximate rectangle it has long been assumed to be. The possibility exists that it may be triangular with the apex at Mbaeroko and the base extending from Piraka in the east to Lodukoma in the west. In another case involving the inter-tribal disagreements in respect of Kazakuru land that possibility was in issue. In the case of Allardyce Lumber Company Ltd v Attorney-General [1989] SBHC 1; [1988-1989] SILR 78 (18 August 1989) Ward CJ recites in full a letter received into evidence. The letter is set out below:

 "The Chairman
 Roviana Area Council
 Munda.

 Dear Sir,

 SUBJECT: YOUR LETTER OF 5/12/88

 1. I refer to your letter of 5/12/88 to the Chief Forestry Officer and dated as above. In response I have these to say:-

(a) I agree that the PIRAKA-LODUKOMA - MBAEROKO-ENOGAE -PIRAKA are the correct boundaries of the Right-Hand Land as determined by the CLAC in Case 6/79 and by the High Court in Case 2/80 not the Roviana Area Council which is a non-legal institution.

(b) Nowhere in its decision of 5/3/84 did the CLAC state that the portion PIRAKA-BAREKE-BAO-PIRAKA be set aside as "Reservation Area". Further the late W.G. Paia died on 7th July 1983. The decision to redraw the boundaries and to mark in the "reservation area" was made on 27th October, 1988. The late W. G. Paia could not possibly get out of his grave to agree to the "reservation area" on 27/10/88. The Chairman of The Roviana Area Council did not get his facts right and therefore he had made a false statement.

(c) There is no confidentiality about the reservation of the small area "PIRAKA-BAREKE-BAO-PIRAKA". The late W. G. Paia never and I repeat never had agreed to have such an area reserved. If he did then he would have been in breach of the High Court decision. He defended the ownership of the Right-Hand Land right up to the time of his death.

The very reason why the small area was claimed to be reserved is simply because the Kali Kalikoqu Chief's Committee at their meeting on 24/5/88 illegally claimed that the area belonged to them; and they announced that they would object to Allardyce's Logging on the Right-Hand Land if that small area was not marked "Reservation Area" To comply with their illegal claim the Allardyce Lumber Company manipulated the situation and initiated to have the boundaries redrawn. The Roviana Area Council was also manipulated to agree (illegally) to the redrawn boundaries, which it did. This simply is the motive behind the whole thing.

(d) By copy of this letter I wish to point out to the Chief Forestry Officer that it would be unwise of Government to be involved in what clearly are illegal activities and which are obvious in the current case.

I wish to reiterate finally that our Landowning group - the Voramali Right-Hand Land Tribe strongly detest

 (a) the manipulatory move involved in the whole case.

 (b) the action which had led to the redrawing of the boundaries of the Right-Hand Land.

For the above reasons we forbid Allardyce Company to log the trees which are obviously standing not in the air but on our land. For your information the matter has been routed to the High Court Chamber.

 Hugh K. Paia
 (Spokesman and Tribally Chosen Representative of the Voramali Right-Hand Land Tribe)"

10. This is raised at this point not as a finding as to the boundary but as an illustration of the difficulties that exist in saying the boundaries between KRHL and Koroga land have been established by previous cases. This is especially so when the parties in the previous cases have not been the same as the parties in this case. Whilst Civil Appeal case No 11 of 1974 may have involved the Kusagi and the Kazakuru people (my understanding is that the appellants in that case, Milton Talasasa and Nginabule Nato, are connected to the Kazakuru line) other cases haven't. Certainly in the Allardyce case it didn't, the full list of parties shows that Allardyce Lumber Company Ltd, Bisli, Roni, Sakiri, Hiele, Sasae, Poza, Zongahite, Daga, Pato and Zingihite were the Plaintiffs and the Attorney General, Commissioner of Forest Resources, Premier Western Province and Paia (the author of the letter quoted) were the Defendants. However, it should also be remembered that Lot LR 731 was discussed in (consolidated) Civil Case 149 of 1997 by Muria CJ in his judgment on the application for an interlocutory order which was handed down on 23rd July 1997.

11. All that can be said of the previous cases is that they contain a wealth of evidence about boundaries and none is more illustrative of this than the Philips Commission. In the words of Davis CJ , "….in the course of (its) enquiries it heard and recorded a considerable quantity of evidence as to native occupation of land". In addition it must be remembered that the findings of the Commission have long been accepted binding or as was said in another case, "First, it must be pointed out, that the judicial findings of the Philips Commission, have never been overturned, challenged or disputed. Over the years they have been repeatedly referred to as conclusive and authoritative findings" . But, and it is a fundamental but, are the findings of the Philips Commission in native claims 33 and 34 binding on the parties to this case? Kabui J dealt with recommendations and findings by the Commission this way , "There may well be evidential value in the record of the Inquiry but that is not conclusive evidence of ownership". He later went on to say, "It says nothing about the ownership of the area of land as between the natives. Determination of conflicting interests between the natives was not the function of the Inquiry. A great deal of evidence might have been given as to customary occupation, but that was not intended to determine who owned what and how much as between the occupying natives at that time". The simple reason for this was, "Levers Pacific Limited and the Claimants were the parties to the Inquiry".

12. In short then the only determination that can be made at this stage and on the evidence before me is that the previous cases have not judicially and finally determined the boundary and ownership as between Koroga land and KRHL. Certainly in cases involving the division of Kazakuru land the boundaries of both the Left Hand and the Right Hand lands were agreed and/or judicially fixed. The Kusagi people were not involved in those cases. Certainly in Civil Appeal case No. 11 of 1974 there was a final judicial determination that the descendants of Lala and Jonga had the right to be the trustees in the event of a lease being completed over Koroga land as they were the line occupying Koroga land but it did not decide they were the owners. There may be a very fine line drawn between the two concepts, occupation and ownership, but nevertheless the line has been drawn. Certainly the Philips Commission made determinations as to what land the Kusagi people occupied and even the extent of the land, but the Kazakuru tribe were not involved in that process.

13. It is not for this court to make its own determination of the boundary. It is a matter of custom and for the tribunals which by law are solely entitled to make decisions about custom. Having said that, it seems to me the First and Second Claimants and the Third and Fourth Defendants would have an uphill task persuading any tribunal what they have agreed to or given evidence about in other proceedings does not apply in this particular case. The First and Second Claimants and the Fourth Defendant would have difficulty explaining why they now say KRHL extends westward from Enoghae given the evidence and findings in other cases they have been involved in. Similarly the Third Defendants would have problems explaining away evidence from 1925 about the most northerly point of Koroga land. They may be able to do so, it is not a matter for this court at this time. I understand from a letter sent by Mr Radclyffe to the Registrar of the High Court in October 2010 (it appears to have been copied to Messrs Sol Law, PT Legal Services and Mr Apaniai as was) a Chiefs decision has been made. The process of obtaining a decision through the customary law tribunals has been started. A copy of the decision was attached to the letter and it is helpful but in a limited way. It does appear to resolve the issue in favour of the Third Defendants but it is a qualified resolution. Surely then the way forward is for one or other of the parties participating in the Chiefs hearing to complete an unaccepted settlement form and have the matter dealt with by the Local Court. Alternatively, dare I say it, the parties could arrange for their own joint professional survey. If they did that and agreed a consent order they may well avoid the tortuous litigious route of Local Court, Customary Land Appeal Court and High Court. From the materials before me it is noted that Muria CJ made an order involving a survey some while ago. There is no evidence before the court at this time as to whether the survey was ever completed. With modern GPS equipment and GIS software highly accurate maps can be made.

14. After 15 years of fruitless litigation, it is a puzzle to me why the parties continue asking the courts to provide the answer to a problem when they, in all likelihood, already know the answer. As for the issues between the Claimants and the Fourth Defendants, if the question of trespass is decided in favour of the Third Defendants, they become irrelevant in this case. Those issues may well be relevant in other matters. If the dispute about trespass goes against the Third Defendants that still does not resolve the difficulties between the Claimants and Fourth Defendants. The differences are matters of custom as well so the Claimants and the Fourth Defendants may like to consider asking the Chiefs to help resolve those differences now.

15. I will hear from Counsel on the question of the costs of this application and in respect of any further orders or directions needed to bring this case to a conclusion. 

Chetwynd J