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Vozi v Kavana Corporation [2014] SBHC 97; HCSI-CC 354 of 2013 (2 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

CHIEF NOLAN VOZI
1st Claimant

AND:

KUTAKABAI LAND TRUST BOARD (Inc)
2nd Claimant

AND:

KAVANA CORPORATION
1st Defendant

AND:

XIANG LIN (SI) TIMBER LIMITED
2nd Defendant

AND:

ATTORNEY GENERAL (representing the Commissioner of Forests)
3rd Defendant

AND:

ATTORNEY GENERAL (representing the Western Provincial Executive)
4th Defendant

No appearance for the Claimants/Applicants.
Mr. J. K. Zama for the 1st and 2nd defendants/Respondents.
Mr. Kii for the 3rd and 4th defendants/Respondents.

Date of hearing: 13 May 2014.
Date of Judgment: 2nd July 2014.

RULING
Apaniai, PJ:

Introduction.

1. On 7 November 2013, the claimants ("Applicants") obtained ex parte interlocutory orders against the 1st and 2nd defendants ("1st and 2nd Respondents") restraining them from conducting logging operations within Tupilado and Boloere plots of land. The two plots of land are situated within Kutakabai customary land on Vella La Vella Island in the Western Province.
   
2. The inter partes hearing was fixed for today. However, the Applicants did not appear either in person or by counsel despite an email and a Notice of Hearing having been sent on the 7 April 2014 by the Registrar to the solicitors for the parties, including the solicitors for the Applicants.
   
3. I allowed the hearing to proceed despite the absence of the Applicants and their solicitors for the reason that the ex parte orders were obtained on 7 November 2013 and I see no justification for the inter partes hearing to be delayed any further. No explanation has been given why the Applicants did not appear. They are aware of the hearing date and should have appeared or at least provide prior written explanation why they would not be appearing. They have obtained the orders ex parte and should be present to defend the continuation of the ex parte orders. If their non-appearance is meant to further delay the inter partes hearing then they are wrong for an ex parte order may be set aside at an ex parte hearing if sufficient cogent grounds exist for doing so[1]. I am satisfied the above reasons are sufficient cogent grounds for proceeding with the hearing in the absence of the Applicants.
   

Submission by the defendants.

4. Mr. Zama of counsel for the 1st and 2nd Respondents submits that the ex parte orders should be discharged. He puts forward two grounds as justifying a discharge of the orders.
   
5. First, he says that the claim is out of time because it includes a claim for judicial review seeking declarations and injunctions. He submits that under Rule 15.3 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules"), claims for judicial review should be brought within six months after the date of the decision being challenged. In this case, he said the claim was filed two and a half years after the timber rights determination (now being challenged) was made.
   
6. Second, he submits that the 1st Applicant does not represent the Vozi clan and as such he has no standing to bring this claim on behalf of the Vozi clan. The 3rd and 4th Respondents support the discharge of the ex parte orders also on this ground.
   

Whether the claim is out of time.

7. The claim was a Category A claim. It was filed on 25 September 2013. In it, the 1st and 2nd Applicants claim the following reliefs:-
   

[1] a declaration that the 1st defendant's felling licence No. A101236 which covered Vaululu and Naoqao customary lands is null and void;

[2] a declaration that the 1st and 2nd defendants' operations within Tupilado and Boloere portions of Kutakabai customary land, South East Vella La Vella, Western Province, is unlawful;

[3] An order compelling the 1st and 2nd defendants to haul and export all round logs felled from Tupilado and Boloere, produce to them all export documents of all the round logs, account to them all proceeds of all round logs exported and pay them the market value of all round logs exported thereafter the deduction of 25% of the fob payable to the Solomon Island Government;

[4] a permanent injunction restraining the 1st and 2nd defendants, their employees, servants, agents and invitees from entering Tupilado and Boloere portions of the Kutakabai customary land for logging purposes;

[5] Damages to be assessed;

[6] Exemplary and aggravated damages;

[7] Costs on indemnity basis; and,

[8] Other orders as the court deems meet.

8. In the statement of the case, the Applicants allege that Kutakabai customary land is owned by the Kutakabai tribe and that the boundary of the Kutakabai customary land commences at Uzamba river to Malavari river in South East Vella La Vella.
   
9. They further allege that the 1st Applicant is a chief and member of the Vozi clan of the Bavara tribe which had settled on Kutakabai customary land and which has rights of usage over Tupilado and Boloere which, they say, are plots of land situated within the Kutakabai customary land.
   
10. The Applicants also allege that the 2nd Applicant is a land trust board established by the Kutakabai tribe to oversee and protect the interests of the members of the Kutakabai tribe including matters relating to Kutakabai customary land.
    
11. The Applicants allege that in November 2008, Grace Logging Ltd ("Grace Logging") applied for timber rights over Vaululu and Naigao / Kaneporo customary lands which are also situated at Vella La Vella. They allege that a timber rights hearing was conducted in February 2012 in relation to the application. The application was granted by the 4th Respondent, the Western Provincial Executive in March 2012. A license was then issued to Grace Logging on 22 October 2010.
    
12. They allege that Tupilado and Boloere share a common boundary with the Vaululu and Naigao / Kaneporo customary lands but that Tupilado and Boloere are not covered by the application and did not form part of the concession areas of Grace Logging Ltd.
    
13. They allege that in or about July or August 2013, the 1st and 2nd Respondents, while carrying out logging in Vaululu and Naigao / Kaneporo customary lands, entered Tupilado and Boloere without the Applicants' consent and without any lawful justification and constructed roads therein and felled and removed trees therefrom.
    
14. They allege that the 1st Respondent is a community company incorporated by the members of the Vaululu and Naigao/Kaneporo tribes who own the Vaululu and Naigao/Kaneporo customary lands.
    
15. In substance, this claim is for damages for trespass in Tupilado and Boloere customary lands and for conversion of logs therein. While the claim has also sought declarations, it remains substantially as a claim for damages for trespass and conversion of logs. The trespass and the conversion are alleged to have occurred in or about July or August 2013. The claim was filed on 25 September 2013. The ex parte orders restraining the 1st and 2nd Respondents from carrying out logging in Tupilado and Boloere were granted on 7 November 2013. In the light of these facts, the claim is clearly not out of time. I reject the Respondents' submission about the delay in bringing these proceedings.
    

Whether the 1st Applicant has standing to represent the Vozi clan.

16. The 1st and 2nd Respondents, as well as the 3rd and 4th Respondents, also submit that the 1st Applicant has no standing to bring this claim on behalf of the Vozi clan as required under rule 3.42 of the Rules. Rule 3.42 provides as follows:-
    

"Any person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing the community, tribe, line or group, but the court, on application of any party, or on its own initiative, may require that person to provide proof of their entitlement in custom to act as such representative before any further step in the proceeding may take place."

17. In Alex v Alekova[2], the applicant had applied for the revocation of letters of administration granted earlier to the respondent. In addition, he also sought an order that he be granted the letters of administration instead.
    
18. The application was made by the applicant as a representative of his Lolobo tribe. At the hearing of the application, the respondent sought an order under rule 3.42 for the applicant to provide proof of his entitlement to represent the tribe. However, the evidence adduced confirmed that some of the members of the applicant's tribe were in favour of the applicant representing the tribe while some were not.
    
19. The court dismissed the application holding that although rule 3.42 provides a useful mechanism whereby a community, tribe, line or group may sue or be sued through a person entitled in custom to represent that community, tribe, line or group as a collective without the need to name every member of the community, tribe, line or group as party to the proceedings, it is not a useful mechanism where there is a division within the tribe. Where there is division, the claimant can only sue in his personal capacity and not as a representative of the tribe.
    
20. In Paasi v Heroau[3], Justice Izuako stated that the term "entitled in custom" in R. 3.42 means being eligible, qualified or having a right under the traditions of a particular community, tribe or line. Her Ladyship said that in Solomon Islands there can be no dispute that what may entitle a person in custom to represent or speak for or on behalf of a community, tribe or line is the position held by the person in the community, tribe or line. The position may be conferred by circumstances of birth, by achievement within the community or by blood ties or by all three of them.
    
21. The question in the present case therefore is whether or not the 1st Applicant is eligible, qualified or has a right under the traditions of his Vozi clan or Bavara tribe to represent the clan or tribe in these proceedings. The burden is on the 1st Applicant to prove that he is so entitled by producing evidence to that effect.
    
22. The 1st Applicant says he is entitled to represent his clan. He claims in his sworn statements filed on 25 September 2013 and 5 November 2013 that he was authorised by the members of his Vozi clan to represent them in these proceedings. However, he has produced no evidence of the alleged authorisation by the Vozi clan.
    
23. In his sworn statement filed on 25 September 2013, Chief Harold Mesepitu of the Kutakabai tribe says that Tupilado and Boloere customary lands are parts of Kutakabai customary land and that his grandfather had given them to the Vozi clan which is represented by 1st Applicant in these proceedings. He says nothing about 1st Applicant being chief of either Vozi clan or Bavara tribe.
    
24. Chief Hamilton Rani has also filed a sworn statement on 25 September 2013 in support of this application. He confirmed that Vozi clan is the owner of Tupilado and Boloere customary lands but says nothing about 1st Applicant being a chief of the Vozi clan or the Bavara tribe.
    
25. The 1st Respondent, on the other hand, says there is no evidence that the 1st Applicant is a chief of either Vozi clan or the Bavara tribe. He relies on a sworn statement by Belosaza Tianakera filed on 13 May 2014 in which Mr. Tianakera says that the 1st Applicant's mother is from the Leanabako tribe of Kolombangara Island and that according to the custom of Vella La Vella, inheritance of the chiefly title follows the matrilineal line. He says that in custom the 1st Applicant could only be a chief of his mother's tribe or clan in Kolombangara but not of the Vozi clan and the Bavara tribe in Vella La Vella.
    
26. In the light of these disputes, I am satisfied there is a case for the 1st Applicant to provide proof pursuant to rule 3.42 that he is entitled in custom to act as a representative of the Vozi clan and the Bavara tribe in these proceedings. Rule 3.42 requires that, until such proof is provided, no further steps should be taken in regards to the proceedings. In other words, the proceedings should be stayed until the proof is provided. That would include staying (not discharge) of the enforcement of ex parte interlocutory orders granted on the 7 November 2013. However, such order is not now necessary in the light of the reasons given hereunder in regards to the principles governing the granting of interim restraining orders.
    

Whether the ex parte interlocutory orders should be discharged.

27. As has often been said, interim injunctions would be granted where the applicant shows that there is a serious issue to be tried, that the balance of convenience favours the granting of the interim orders and the applicant has given the usual undertaking as to damages.
    
28. The first issue to determine at this hearing is whether a serious triable issue has been disclosed by the application. If a serious issue is not disclosed, the application must be dismissed without having to consider the balance of convenience or the undertaking as to damages.
    
29. In this case, the Applicants claim that his Vozi clan owns the Tupilado and Boloere customary lands. In their sworn statements, Chiefs Harold Mesepitu and Hamilton Rani said that the Tupilado and Boloere customary lands are part of Kutakabai customary land and that the Vozi clan owns them.
    
30. The respondent denies that Vozi clan owns the Tupilado and Boloere customary lands. He says that the two lands are owned by his Sambe tribe. This information was not before the court when the interim orders were granted on 7 November 2013. It is now clear that the ownership of the Tupilado and Boloere customary lands is under dispute. It is a dispute which the High Court has no jurisdiction to decide[4] which means that there is no triable issue before the court.
    

Decision and orders.

31. In that regard, the ex parte interim orders granted on the 7 November 2013 must be discharged. The applicants are to pay the costs of the respondents on standard basis.
    
32. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

^[1] London City Agency (JCD) Ltd & another v Lee & Others [1969] 3 All ER 1376.
^[2] [2010] SBHC 64; HC-CC 434 of 2005 (14 October 2010).
^[3] [2008] SBHC 59; HCSI-CC 479 of 2004 (28 August 2008).
^[4] Gandley Simbe v East Choiseul Area Concil & Others [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999).