IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTIONS 

Civil Case No. 178 of 2015 

BETWEEN:	CHIEF BILLY DOKAMA					-	Claimant
		(Representing the Goza Tribe)

AND:		CHIEF COLLIN KOBAKA				-	First Defendant
		(Representing the Kekepogo Tribe)
	 
AND:		DELTA TIMBER LIMITED				-	Second Defendant

AND:		SUNWOOD ENTERPRISES LIMITED			-	Third Defendant

Civil Case No. 305 of 2014

BETWEEN:	DELTA TIMBER LIMITED  				-	First Claimant

AND:		CHIEF COLLIN KOBAKA				-	Second Claimant		(Representing himself and Members of his Kekepogo Tribe)
	
AND:		CHIEF BILLY DOKAMA					-	Defendant
		(Representing Himself and Members of his Derengada
 Clan of Goza Tribe)

Date of Hearing: 	1st June 2016.
Date of Ruling: 	4th July 2016.

Mrs. M. Bird for the Claimant in cc 178/2015 and Defendant in cc 305/2014. 
Mr. J. Kaboke for the 1st, 2nd and 3rd Defendants in cc 178/2015 and 1st and 2nd Claimants in cc 305/2014.

KENIAPISIA; PJ: 
RULING AFTER INTER-PARTES HEARING
1.	Today, I am dealing with the claimant’s application for interim injunction, in cc: 178/2015.  The said application was filed on 6/5/2015.  In the meantime, claimants in cc: 305/2014, already have in their favour, an interim injunction order against Chief Dokama’s tribe; granted by Faukona J, ex – parte, on 19/9/2014.  The two cases were consolidated by order of this Court, by Faukona, J perfected on 4/11/2015.  To that extent, I am also treating today’s hearing as an Inter – parte hearing of the Ex – parte Order in cc: 305/2014.

2.	The dispute in these two cases relate to the logging operations by Delta Timber Limited, Sunwood Enterprises, in joint enterprise with Chief Collin Kobaka and his Kekepogo tribe.  I refer to all three parties collectively as “the loggers” - (hereafter).

3.	The loggers carry out logging operations under Felling Licence A10958.  The License covers concession lands in North East Choiseul, Choiseul Province, known locally as Kiruka and Kekepogo customary lands. Licence issued on 15/8/2011, will expire on 15/8/2016. The Licence was preceded by a valid standard logging agreement (“SLA”) executed on 1/7/2011.  Chief Collin Kobaka was among the signatory trustees to the SLA. Chief Kobaka’s Kekepogo tribe, claim ownership of Kekepogo customary land.  The Timber Rights Determination (“TRD”) hearing initiated by the loggers in 2011 was successful over Kekepogo land, but excluded boundary lands objected to by Chief Dokama’s Goza tribe, represented at the 2011 TRD hearing, by one named Sonanu Dokama.

4.	Mr Sonanu Dokama objected at the 2011 TRD hearing that the boundary as per concession map, used by the loggers, as indicated by chief Kobaka was incorrect. The issue of Goza/Kekepogo boundary between Chief Kaboka and Chief Dokama’s two respective tribes; remain outstanding at the Choiseul Provincial Executive (“CPE”), TRD hearing in 2011.  This is an extract of the CPE determination: -

“Mr Sonanu Dokama objection of boundary claims, the common boundary of Goza/Kekepogo, was incorrect.  We find that the boundary objector have the right and be physically identified later.  We therefore find that Mr Sonanu Dokama’s objection on boundary should not stop the grant of rights to commence logging”.

5.	Then in 2012, a dispute over the boundary of Goza/Kekepogo lands went before the Batava Council of Chiefs (“BCC”). The chiefs’ hearing was good and conclusive, because it also included “2 days walk and one night’s sleep” to carry out a physical survey.  This is what the BCC findings were:
“The land claimed by Kekepogo tribe from Goza tribe, within Zao land is truly owned and belonged to Goza tribe.  Any request to work or involve in other related activities…”

6.	The Chiefs’ hearing was consistent with CPE, TRD hearing conclusions in 2011 (which called for a physical boundary identification later - see paragraph 4 above).  From the BCC findings, we can infer that the boundary as presented and argued by Chief Dokama’s Goza tribe was correct.  We can then further infer that the boundary as described and objected to by Chief Dokama tribe was the correct one.  Chief Collin Kaboka is appealing the decision to the Local Court.  It means the issue of Goza/Kekepogo lands is still alive before the Local Court.

7.	It is clear from BCC decision that Goza tribe (Chief Dokama tribe) owns the Zao land.  But the issue that remain outstanding is “Is Solomo land, a portion within Zao land?”  Chief Dokama’s tribe say Solomo is within Zao land. Chief Collin Kobaka and his tribe assert the contrary that “Solomo” is a portion of land within the Kekepogo tribal land and is covered under Felling Licence A10958. 

8.	By “ascertaining” and “describing” Solomo land in relation to Zao land or Goza/Kekepogo lands; we will be able to resolve the dispute over “Solomo” land.  Until that happens, the dispute over which of the two tribal lands, Solomo is situated in, remain a live issue to be settled in the customary land tribunals and courts.  The dispute can thereafter be settled at trial, in this Court.  I find therefore that there are issues for trial.  And that an injunction is justified in the interim.

9.	The loggers’ submission through their Counsel, is that, there is no dispute before the BCC, following Ex – parte Orders made by this Court in cc 323/2014. That Ex – parte order stopped BCC from hearing a referral by Chief Dokama tribe on the issue of “Solomo” land/portion between Chief Dokama and Chief Kobaka and their two respective tribes.  With respect, that preposition is misconceived.  Issues to do with customary land ownership, boundary and genealogy etc, are matters that can only be dealt with, starting with the chiefs and elders knowledgeable in custom, in the locality of the dispute.  And it is not right for this Court to stop the chiefs from performing their duties.  Court of Appeal said in Rini case, that High Court cannot make orders that intrude on the exclusive jurisdiction of the lower customary land courts and tribunals, to determine issues of customary land. We know by law, customary land disputes/issues cannot come before the formal lower customary land courts, without first exhausting the chief’s forum/tribunal. 

10.	An inter – partes hearing must be quickly conducted in cc 323/2014.  If Chief Dokama tribe has issues with BCC composition, that can be solved by having new members on the BCC Panel. Alternatively, the dispute should be referred to the House of Chiefs in close proximity to the locality of this dispute.  I agree with Counsel Bird that her client’s referral, stopped by the High Court in cc. 323/2014 is still alive, if not before BCC, then the next House of Chiefs in close proximity to the locality of the “Solomo” land dispute.  Hence injunction justified.

11.	For the reasons discussed above, the balance of convenience, favours the granting of injunction. The other justifications are discussed below.

12.	Firstly, it is clear to me that Chief Dokama’s tribe are opposed to logging, on “Solomo” land.  Whether or not “Solomo” land is inside Chief Dokama’s or Chief Kobaka’s tribal land (concession lands), is a matter for trial.  It is a matter to be determined later from a physical survey.  That physical survey still outstanding.  Hence the so called “Solomo” land should not be tampered with. If tampered with, irreparable harm will be caused to the land and environment. All logging activities by the loggers should accordingly cease on “Solomo” land, in the interim. 

13.	Secondly, as regards to the Goza/Kekepogo land boundary, the CPE 2011 TRD hearing is still incomplete where the minute says “...objector have the right and be physically identified later…but Dokama’s objection on boundary should not stop the grant of rights to commence logging”.

14.	My inference on this minute conclusion is that the loggers should start the logging operations, but far from the disputed boundary which included “Solomo” land. The loggers say they have started operations far from that “Solomo” area (excluded area), but Chief Dokama tribe says, the loggers have already intruded into that area (issue for trial – whether or not there was trespass).  I cannot be sure who is right and who is wrong because, it would appear to me that the disputed boundary is indeed a huge portion of land.  This I infer from the BCC decision, which says a boundary survey, was conducted over “two days of walk” and one “night sleep” in the bush.  

15.	Thirdly, Chief Dokama tribe, as objectors, do not have to appeal, the CPE determination to Customary Lands Appeal Court.  As regards the land they objected at the TRD hearing, a physical survey is still outstanding, in line with CPE decision.  Only after a physical survey, will Chief Dokama’s tribe be able to ascertain whether or not to appeal.  Should a physical survey established that the concession lands excluded the lands objected, Chief Dokama’s tribe does not have to appeal. Should there be opposite finding; Chief Dokama’s tribe can then appeal.

16.	The status quo must be maintained. The conduct complained of is logging on the disputed boundary.  The disputed boundary, until a physical survey has resolved, may include “Solomo” and/or the “Susuata stream and the Kurugisi stream”.  The loggers must not operate on Coupes 23 and 24, of the loggers harvesting plan. The loggers must not operate logging on Solomo, Susuta stream and Kurugisi stream on in their respective vicinity.  

17.	Chief Dokama’s party has filed an undertaking as to damages.  Unfortunately, I do not believe for one second that they have the ability to honour the undertaking.  They are only village people with no evidence on income to compensate huge loss that logging companies normally incurred, which run into million dollars.  I doubt their financial ability. And so, I have considered above other factors like convenience: status quo, irreparable harm and strength of the parties’ case.

18.	In terms of what I say in paragraph 8 above, strength of the parties’ case, could go either way, depending on the customary land courts and tribunals decisions.

19.	In all that I discussed, the orders of the Court are:

19.1	Loggers must not carry out any logging activity on Coups 23 and 24, or Solomo or the disputed boundary, or in the vicinity of Susuata or Kurugisi streams.

19.2	Parties to address all customary issues like boundary, genealogy and land disputes before the land courts, starting with the chiefs.

19.3	No order on costs.

19.4	Matter is stayed pending the resolution of issues as per Order 19.2 above.

19.5	Loggers must account to Chief Dokama tribe for all logs exported prior to this order. All proceeds of such export to be paid into a joint solicitors trust account. 

19.6	The interim injunction orders in cc 305/2014 remain unaffected.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE