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Naisi v Western Customary Land Appeal Court [2013] SBHC 10; HCSI-CC 298 of 2012 (22 February 2013)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case No. 298 of 2012

GILISI NAISI AND EDRIC LUNA (representing
the Dekurana Tribe of North New Georgia)
The Claimants

V.

The WESTERN CUSTOMARY LAND APPEAL COURT
First Defendant

And

The PREMIER OF WESTERN PROVINCE
(representing the Western Provincial Executive)
Second Defendant

And

THE COMMISSIONER OF FOREST RESOURCES
Third Defendant

And

ROYCE ALEKEVU, DAVIC ALEKEVU, SHANE TUTUA, KILVEN BENNY, OPPORTUNITY KUKU AND JOSHUA LETI (representing the Hetaheta and Leghu Tribes of North New Georgia)
Fourth Defendant

And

EARTHMOVERS SOLOMONS LIMITED.
Fifth Defendant

And

The ATTORNEY-GENERAL
Sixth Defendant

Hearing: 7 February 2013
Judgment: 22 February 2013

For the Claimants: S. Lepe.
For the first – third and sixth Defendant: E. Ki'i.
For the fourth and fifth Defendants: G. Suri.

Palmer CJ:

1. This is an application for interlocutory injunction to restrain the fourth and fifth Defendants from carrying out any logging activities pending the determination of substantive issues in this case and or further orders of the court.
   
2. The substantive application is for judicial review of the decision of the first Defendant, the Western Customary Land Appeal Court ("the WCLAC") in the case of Gillisi Naisi and Edric Luna v. Royce Alekevu, David Alekevu, Shane Tutua and Others, WCLAC Nos. 4 and 5 of 2011, 22 June 2012, in refusing to consider the appeal grounds of the Claimant on the grounds that they raised issues of law which they had no jurisdiction to hear and thereby fell into jurisdictional error. The Claimants aver the orders of the WCLAC should be quashed.
   

Triable Issue

3. I am satisfied having listened to the arguments of counsels in this matter, read the Amended Application for interim orders filed 23 January 2013, the Amended Claim filed 18 January 2013, the sworn statement of Gillisi Naisi filed 25 October 2012 and written submissions of Counsel, Mr. Suri on behalf of the fourth and fifth Defendants, that triable issues have been raised in this case.
   
4. One of the main issues raised relates to the question whether the WCLAC failed to take into account a relevant matter, being the failure to consider the earlier decisions of the Western Customary Land Appeal Court in Naisi Luna (Jnr) v. Boaz Seizama WCLAC Land Appeal Case No. 5 of 1978, 23 November 1978 ("WCLAC 5/78") and the decision of the High Court in Naisi Luna v. Boaz Seizama Customary Land Appeal Case No. 5 of 1979, 6 February 1980, per D.R. Davis CJ, upholding the decision of the Customary Land Appeal Court. This issue in turn stems from the submission by the Claimants that the Western Provincial Executive ("WPE") was obliged to take into consideration in its determination those earlier decisions. Their grievance is that the WPE also failed to take those decisions into account and thereby erred in its determination by determining that the landowners were willing to dispose of their timber rights and secondly in excluding any representatives from the Dekurana tribe. Had the WPE taken into account the effect of those earlier decisions they would have either determined that there was no agreement or that there should have been an equal representation of the members of the Dekurana tribe with the members of the Hetaheta tribe.
   

Adequacy of Damages

5. This is a logging case and when it comes to the question of large scale open logging activities on any customary land, the damage to be caused to the flora and fauna and the environment is simply immeasurable and irreversible in terms of monetary damages. Rivers and streams if damaged cannot be returned back to their natural state even if attempts to have them restored are made. Trees felled and removed will take generations for the process of re-growth and replacement to take place. Any decision to conduct logging therefore should never be made or taken lightly.
   

Strength of Parties Case

6. It would seem to me that in terms of the strength of the parties case at this point of time, this weigh more in favour of the Claimant. It is important to bear in mind that any final decision of the Courts over any particular land dispute or issue is binding on the parties and in that regard, the WCLAC is obliged to take such decision into account especially in the circumstances where it relates to the same parties, same land and issues. The doctrine of res judicata and or issue estoppel simply means that any later tribunal or court purporting to deal with the same issues and the same parties are bound by the decision of the earlier court. The only slight distinction in this case would be the inclusion of another tribe, the Leghu tribe that has been added to the Hetaheta tribe.
   
7. On the face of the record however, an error of law does appear to have been committed by the refusal of the WCLAC to address the appeal ground of the Claimant on this particular issue. While that issue can be fully argued at trial later, for purposes of this interlocutory application, the scales tip in favour of the grant of injunctory orders.
   
8. The fourth and fifth defendants also argue that no restraining orders should be issued because the Claimants have come with unclean hands. They say that the Claimants refused to participate in discussions with them and refused to accept any settlement on the matter.
   
9. On this particular point, I do not think such refusal necessarily manifests impropriety or is a material fact for the Claimants are entitled to object to the granting of timber rights to the fifth Defendant, Earthmovers Solomons Limited ("Earthmovers") and their rights ought to have been taken into account by virtue of the binding decision of the WCLAC in WCLAC 5/78. That decision states inter alia:
   

"...that Naisi Luna should be recognized as overall BANGARA or Chief of Dekurana land, from Barora to Nira Rivers. However Boaz Seizama has equal rights of ownership and occupation, which are not exclusive, to the land between Malumalu and Nira Rivers referred to as Hetaheta. Mr. Naisi Luna also has right to ownership and occupation on this land. This Court therefore decrees that Mr. Naisil Luna and Mr. Boaz Seizama, representing their respective lines, have equal rights to the land between Malumalu and Nira rivers, and the trees thereon."

That decision conferred equal beneficial rights of ownership and occupation on the Dekurana tribe over Hetaheta land, which cannot be ignored except with their consent. In the minimum they should have been given equal representation in any committee or trusteeship.

10. The consequential effect of such decision is that any purported development or activity on the land may only be done with the consent or agreement of both tribes. Where one tribe disagrees, it would seem that a hold will have to be put any such development or activity until some other suitable arrangement or agreement is entered into between the parties. It is important therefore that the two tribes realize and appreciate the effect of those earlier decisions on their rights and powers over that land.
    
11. By proceeding to make a determination in the absence of an agreement and failing to include an equal representation from the Dekurana tribe, the WPE opened themselves to be challenged for failing to take into account a relevant matter.
    
12. As to the issues raised in paragraphs 3.1 (d) – (f) of the submissions of the fourth and fifth Defendants dated 7th February 2012 (sic), the point about what the Claimants can or cannot do in their land (Dekurana land excluding the Hetaheta land area), would seem to be a matter which they alone have exclusive right to determine and therefore has little relevance to the issue of representation and rights over Hetaheta land.
    
13. As to the question whether injunctory orders should or should not be issued on the grounds that the issues before this court are not so much an argument over preservation of land or environment as the right or power or authority, to conduct logging operations on the land, I am not satisfied that is sufficient ground for not considering the issue of restraining orders. The live issue in this case relates to the question of equal beneficial rights of ownership, which the Claimants say they exercise over the Hetaheta land in conjunction with the members of the Hetaheta tribe. In so far as the rights of the Leghu tribe is concerned, if their rights of ownership are separate and distinct to the two tribes then that is a matter which ultimately may have to be referred for determination through the customary land dispute process, beginning with the Chiefs and if not accepted through the Local Courts etc.
    

Balance of convenience

14. The balance of convenience in the circumstances of this case at this point of time would be to maintain the status quo until the issues are finally determined.
    
15. I note the Claimants have filed the usual undertaking for damages in the event that the decision goes against them at trial, which also favours their case for restraining orders to be issued.
    

Restraining Orders issued

16. I am satisfied accordingly, the interlocutory orders sought in this case should be granted and I make orders as follows:
    
1. The fourth and fifth defendants, their servants or agents are restrained from landing any logging machinery or construction of any buildings or structures for logging camp, or construction of a log pond or enter into and carry out any logging operations or any related activity in Hetaheta customary land situated between the Malumalu and Niva Rivers in North New Georgia in the Western Province;
   
2. A penal notice to be attached to Order 1; and
   
3. Costs to be reserved.
   

The Court.