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Hilli v Balesi [2001] SBHC 80; HC-CC 224 of 2001 (6 November 2001)

HIGH T OF SOLOMON ISLANDSspan>

Civil Case Number 224 of 2001

ass="Mss="MsoNormal" align="center" style="text-align: center; margin-right: 7.2pt; margin-top: 1; margin-bottom: 1"> HAROLD HILLI

(as representative of himself and his family

and the memof Nono Trno Tribe)

v

LETIPALESI & OTHERS

(trading as Interprises Lims Limited)

& ATTORNEY-GENERAL

(as Representative of the Commissioner of Forest and W. P. Govt)

>

High Court of Solomon Is/span>

Before: Frank O. Kabui, J.

Civil Case Number 224 of 2001

Hearing: 1^st November 2001

Ruling: 6^th November 2001

Mr. D. Hou for the Plaintiff

Mr. J. Apaniai for the 1^st to 4^th Defendants

Defendants No appearance for the 5^th Defendant

Mr. P. Tegavota for the 6^th Defendant

RULspan>

class="MsoNoMsoNormal" style="margin-right: .2pt; margin-top: 1; margin-bottom: 1"> (Kabui, J): The Plaintiff filed an amended Notice of Motion on 25^th October 2001 seeking declarations, injunction and costs. The hearing date was Thursday 1^st October 2001, at 9:30am. I think the date was meant to be 1^st November 2001 because that is the date the hearing took place. Also, the original Notice of Motion stated the hearing date as being Thursday 1^st November 2001 a0 am.0 am. The 6^th Defendant also filed a Summons on 25^th October 2001 seeking, amongst other s, the discharge of the interim injunction granted against the 4^th Defendafendant and 6^th Defendants on 24^th August 2001. The hearing date for the Summons was also Thursday 1^st November 2001 at 9:30 am. At the commencement of he hearing, there was some confusion. There was no meeting of the minds of Counsel appearir the parties as to which of the applications should be heard by the Court. Cou Counsel for the Plaintiff, Mr. Hou, treated the amended Notice of Motion as the inter parte hearing of the Plaintiffs' case. Counsel for the 1^st to 4^th Defendants, Mr. Apaniai, and Counsel for the 6th Defendant, Mr. Tegavota, said they had come to Court to discharge the interim injunction made by the Court on 24^th August 2001. They said they had not anticipated an inter parte hearing as was understood by Counsel for the Plaintiffs, Mr. Hou. The impasse was got over by my suggesting that having heard Counsel for all the parties, it would appear that the Plaintiffs� amended Notice of Motion would have to be adjourned to a date to be fixed to allow the 6^th Defendant�s Summons to proceed and be heard. Counsel for all the parties agreed and the Plaintiffs� amended Notice of Motion was adjourned by consent of all the parties to a date to be fixed.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs�

The Plaintiffs case is that he and members of hmily and others are membersmbers of the Nono tribe. He argued that for this reason they should have been consulted by the 1^st to the 4^th Defendants as to whether or not logging should take place on Nono Land.

In view of the adjournment of the Plaintiffs'ded Notice of Motion, Counsel for 6^th Defendant, Mr. Tegavota, abandoned paragraph 2 of his client's Notice of Motion and proceeded only with paragraphs 1,3 and 4 of his Summons. The orders sought are these-

1. & That paragraph 2 of the interim order dated the 24^th August 2001 be set aside, and or in the alternative the said interim order be set aside.

3. &nnbsp; That the plaintiff piff pays the cose costs of this application.

4. &nnbsp;; &nsp; Tsp; That the court to g g grant such other or further orders as it sees fit.

&pt"> nbsp;

The 6^th Defendant�s Case supported by the 1^st to the 4^th Defendants

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The 6^th Defendant's case as regards Ose Land and Parcel No. 142 - 088 - 1 is that no logging will take place on Ose Land and Parcel No. 143 - 088 - 1. This is clearly stated in paragraph 15 of Mr. Silas� affidavit filed on 25^th October 200he followillowing terms�

�15 It seems that the main con concern of the plaintiff concerns Ose Land and the registered land Parcel Number 143 - 088 - 1. My company through the contractor, the sixth defendant does not wish to carry out logging in this two land. These two land are excluded from the logging licence A1.0102. This was confirmed by letter from the Commissioner of Forests to me dated the 10^th of September 2001. I attach a true copy of the said letter marked �MS10�.

The letter referred to in paragraph 15 above as �MS10� states

�This is to confirt JP Enterprises Limited's licence A10102 does not inot include registered land parcel No. 143 - 0081 - 1 and Ose land. The aforementioned registered and Ose land is excluded from the Nono land that appeared in the felling licence issued to JP Enterprises Ltd on 2/7/01.

By copy of this letter, Mr Harold Hilly is informed of the exclusion and that felling licence A10102 does not include his block of land.�

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> This letter was copied to the Plaintiff epresents his family and the others in this case. There cane can be no doubt that Ose Land and Parcel No. 143 - 088 - 1 are excluded from the 4^th Defendant's Licence No. A10102. The 1^st to the 4^th Defendants by their Counsel, Mr. Apaniai, also agreed that Licence No. A10102 did not cover Ose Land and Parcel No. 143 - 088 - 1. The next point a by the 6^th Defendant was that who owned Nono Land was not in dispute and therefore the Plaintiff had no right to questhe authority of the personersons who signed the Timber Rights Agreement. In other words, the ownership of Nono Land is not the issue in dispute. What was in dispute, said the 6^th Defendant, was the alleged membership of the Nono tribe claimed by the Plaintiff. That, said the 6^th Defendant, was a matter of custom over which the High Court had no jurisdiction. Even the need to consult the Plaintiff and others before agreeing to logging taking on Nono Land, said the 6^th Defendant, was a matter of custom also over which the High Court had no jurisdiction. The appropriate forum, argued the 6^th Defendant, was the Chiefs' forum or the Local Court. This line of argument adopted by the 6^th Defendant, was to show that there were no triable issues arising from the evidence so far before the Court. In this regard, the 6^th Defendant also disputed the declarations sought in the Plaintiffs Writ of Summons and Statement of Claim. That is to say that if the issues raised by the Plaintiff in his Writ of Summons and Statement of Claim would depend upon the outcome of the Chiefs' or the Local Court's determination of the Plaintiff's membership of the Nono tribe and the need for consultation, then it followed that seeking declarations upon the validity of the Timber Rights Agreement and the Licence in the High Court would be premature because the Plaintiff would have no locus standi to raise matters of custom in the High Court. They would of course have locus standi in the Chiefs' forum or in the Local Court. The 1^st to the 4^th Defendants agreed with the position taken by the 6^th Defendants for obvious reasons. They are all on one side in this dispute.

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Court�s determination

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> One issue is fairly clear in this dispute. The claim by the Plaintiff te and members of his familyamily and others are members of the Nono tribe is being disputed by the 1^st to the 4^th Defendants. That is to say that on that basis, the Plaintiff cannot claim locus standi in the High Court because the triable issues disclosed by the evidence before the Court are triable issues of custom to be heard and determined in the Chiefs� forum or the Local Court. It follows therefore that on the authority of Gandly Simbe v East Choiseul Area Council, Eagon Resources Development Company Limited, Steven Taki and Peter Madada (Civil Appeal Case No. 8 of 1997), the High Court would have no jurisdiction to deal with issues of custom. Having said that, it should be stated that Gandly Simbe�s case cited above is an authority only in so far as the determination of customary land is the exclusive preserve of the Local Court. The case says nothing about matters of custom other than the determination of the ownership of customary land. The determination of the membership of a tribe is not strictly, it seems, a determination of ownership of customary land nor is the determination of the need for members of a tribe to consult each other on matters of logging on their land. In terms of section 6 of the Local Courts Act (Cap. 19), the Local Court do seem to have exclusive jurisdiction also to deal with custom matters apart from the determination of the ownership of customary land. The role of Chiefs in sections 12 to 14 of the Local Court Act (Cap. 19) is only restricted to customary land disputes. Can it therefore be said that Chiefs are excluded if the matter in dispute has nothing to do with the determination of the ownership of customary land? In my view, Chiefs are entitled to deal with non - customary land disputes with the consent of all the parties outside of the jurisdiction of the Local Courts. If one of the parties is not happy with the determination of the Chiefs, that party may take his or her case to the Local Court. In fact, this was also the case with land disputes before the functions of the Chiefs were formalized in this regard in 1985 by an amendment to the Local Courts Act. It seems that the High Court does also have concurrent jurisdiction to deal with matters of custom other than customary land disputes under Order 21, rule 30 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules), provided the particular custom is pleaded with sufficient particulars. However, this point has never been raised in that the High Court may well have concurrent jurisdiction in matters of custom though considered by the Court of Appeal in John Sori v Toata Gagame & Others (Civil Appeal Case No. 6 of 1997). As I have said, the issue of concurrent jurisdiction of the High Court over custom is yet to be resolved. In the meantime, Gandly Simbe's case on appeal cited above remains the authority in this jurisdiction on the issue of exclusive jurisdiction being the preserve of the Local Courts in the determination of the ownership of customary land. In this case, paragraph 2 of Mr. Hilli's affidavit filed on 23^rd October 2001 speaks for itself. It says

�I do not question the 1^st Defendant�s position as a Chie Chief. However, a Chief does not have individual title of ownership and authority over the land and the unilateral right to grant any timber rights over the land without any consultation with all the tribe members. The fact that land is collectively owned in custom also means that any development or other income generating activities on the land must also be done with the collective will or agreement of the people.�

The important issue in this paragraph is the statement that the 1^st Defendant whilst being the Chief,hief, and that is accepted by Mr. Hilli, does not assume individual ownership of Nono Land - the land belongs to Nono tribe as one entity in custom. (see Allan Kasa & Elma Kasa v Rex Biku & Commissioner of Lands (Civil Case No. 126 of 1999). Paragraph 2 above also assumes that Mr. Hilli is a member of the Nono tribe. That is clearly based upon paragraph 4 of Mr. Hilli's affidavit referred to above. It says

�In reply to paragraph 5 of e 1^st defendant's affidavit, I do not claim myse myself to be a descendant of Rapo. My geneology clearly shows that I am a descendant of Makoto the brother of Chief Rapo. I am therefore a member of Nono Tribe as Rapo and Makoto are members of Nono Tribe. Further the other allegations against me in paragraph 5 of his affidavit are not true. My genealogy shows that I am a member of Nono tribe through Makoto. As to Ose land it was purchased in custom and not as stated by the 1^st defendant�.

This paragraph disputes the correctness of paragr5 of the 1^st sup> Defendant�s affidavit filed on 25^th October 2001, in which he denies that Mr. Hilli is a member of the Nono tribe because Mr. Hilli is a descendant of a different tribe from the Nono tribe. There is therefore a dispute about land rights in respect of Nono Land. Clearly, membership of the Nono tribe would entail rights to Nono Land whatever those rights may be in custom. As such the land rights and will have to be dealt with by the Chiefs and the Local Court. This is a triable issue to be brought before the Chiefs first and the Local Court later on if necessary. The High Court is out of it for the moment. (see Nathan Kere v Paul Korana (Civil Case No. 258/2000)) and (MSL Import and Export Company Limited v David Maure Civil Case No. 66/2001). At the moment, the dispute between the 1^st to the 4 Defendantsdants and the Plaintiff on behalf of his family and others is yet to surface in the Chiefs� forum and the Local Court and therefore, igh Court is unable to exercise its jurisdiction to a assist the Chiefs' forum or the Local Court if asked to exercise its jurisdiction in that regard. There is therefore no basis for the interim injunction to continue in respect of Nono Land. The interim injunction will also go in respect of Ose Land and Parcel No. 143-088-1. The interim injunction is therefore discharged. The parties will bear their own costs.

F. O. Kabui

Judge

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