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Veno v Jino [2003] SBHC 127; HC-CC 152 of 2003 (19 September 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 152 of 2003

STEVEN VENO & GORDON YOUNG

–V-

OLIVER JINO AND OTHERS

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 11^th September 2003
Date of Judgment: 19^th September 2003

T. Kama for the Plaintiffs
P. Tegavota for 1^st and 2^nd Defendants
3rd Defendants not present
F. Wale for the 4^th Defendants

MURIA, CJ: The first and second defendants in this case have applied to strike out the plaintiff’s application for injunction, which application was filed on 27^th June 2003. Counsel for the parties agreed that the defendants’ application for striking out be dealt with first. The plaintiffs’ application for injunctive relief will be dealt with thereafter depending on the outcome of the defendants’ application.

Brief Background

Following invitation by some members of the Havahava customary landowners who are part of first defendants’ group, Omex Limited (“Omex”) applied in June 2002 by way of Form 1 Application for approval to negotiate for the acquisition of timber rights over Havahava Customary Land. The meeting to consider the Form 1 application, sometime called the “Form 1 Hearing” was held on 25^th August 2002 at Seghe, Substation Western Province. The plaintiffs attended that hearing, and so did the defendants.

At that hearing, objections were taken by the other members of the defendants’ group, namely Raevini Revo, Yalu Revo and Seth Piruku, against granting timber rights to Omex. On 12^th September 2002, the Provincial Executive decided on the matter in favour of Omex’s application and determined that Albert Legere, John Legere, Michael Honda, Stanley Sidiki and Andrew Landa were the persons lawfully able and entitled to grant timber rights over Havahava Land. The unsuccessful objectors appealed to the CLAC (W) which appeal was later withdrawn following a Consent Judgment agreed to by the parties to the Appeal.

Following what can be described as a ‘reconciliation meeting’ between the objectors and those supporting the Form 1 application, a letter was written on 26^th March 2003 representing a joint resolution by all present (now all joined together as the first defendants in this case) to terminate their consent to grant timber rights to Omex and any further negotiation with that company over Havahava Land. In the meantime, on 17^th April 2003 the CLAC (W) issued a Certificate of no Appeal in the matter. When the Form 4 – Timber Rights Agreement (“TRA”) – came to be signed, the company with whom the first defendants signed the said TRA was Orion Limited (“Orion”). Subsequently, on 6^th May 2003 Form III was issued which was the certifying approval of the TRA. The Felling Licence was thereafter issued to Orion on 9^th May 2003 (Licence No. 10215).

By their summons amended on 11^th September 2003 the plaintiffs seek interlocutory injunction restraining the first and second defendants from carrying out any logging operations on Havahava customary land until they have lawfully complied with the provisions of Part III of the Forest Resources and Timber Utilisation Act (Cap. 40) (“the Act”). It is that application that the first and second defendants are now seeking to strike out.

Grounds of the Defendants’ application

The plaintiffs’ having now amended their application, the first and second defendants’ seek only to strike out the plaintiffs’ application on the ground firstly that this Court lacks jurisdiction to hear and determine the plaintiffs’ application. The second ground is that, in the alternative, the plaintiffs do not have locus standi to bring their application to the Court seeking interlocutory injunction.

The issue arising from these two grounds is really one that is, whether the plaintiffs by their application can invoke the jurisdiction of this Court.

Arguments and determinations

For the first and second defendants, Mr Tegavota argued that while serious issues have been raised by the plaintiffs regarding the validity of the Form 4 (TRA), Form 3 and the Licence, there are other issues also raised concerning customary land, and which cannot be separated from the consideration of the TRA, Form III and the Logging Licence. In other words, counsel’s argument is that the Court cannot simply ignore issues of custom and proceed to deal with the application for an injunction based on the question of law. Mr Kama contended on behalf of the plaintiffs that the power of the High Court ought to be exercised so as to assist the parties to settle their disputes in custom over the land. In the present case, Mr Kama argued that the plaintiffs had already initiated the case before the Chiefs challenging the first defendants’ claim of ownership of the land. The plaintiffs’ right must be protected by invoking the powers of this Court. In addition, Mr Kama raised the point that the first defendants who had been appointed trustees for the landowners were in breach of trust by including others who were not landowners as trustees. That breach, contended counsel, gives the plaintiffs the right to come to this Court.

Each case must be decided on its own facts and in so saying, I bear in mind the authorities cited by Counsel in their argument. The leading authority in cases like this where the jurisdiction of this Court is in issue is that of Gandley Simbe –v- East Choiseul Area Council and Others (Simbe’s case)^[1], where the Court of Appeal held that the power of High Court can be invoked by issuing injunctive relief in order to assist the Local Court deal with the issues of custom between the parties.

Again in many of these logging cases, issues of rights over customary land are in dispute and in Allardyce Timber Co. Ltd and Another –v- Nelson Anjo (Anjo’s case)^[2], the Court of Appeal pointed out that the High Court has no jurisdiction to decide on customary land issues in logging cases. Such issues are for the Chiefs and Local Courts to deal with. The case of Hilly and Hiti –v- Balesi^[3] reiterates that position. All too often in logging cases, the validity of the logging licence becomes an issue of contention and the Courts have to find the answer as to how to deal with that issue while at the same time trying to address the disputes over the very land over which such licence have been granted. Nearly all logging operations in Solomon Islands are carried out and will continue to be carried out on customary land. By their very nature, disputes over customary land can become complex, lengthy and at times, heightened with emotion. Such a state of affairs can have an impact on a proposed activity, such as a logging operation, on customary land. Thus the granting of a logging licence is depended on compliance with the Forest Resource and Timber Utilisation Act and satisfactory resolution of the issues affecting the customary land concern. The procedure in Part III of the Act is designed to accommodate this process. It is therefore absolutely essential that the Courts must be vigilant, avoiding tabulated legalism, when dealing with cases concerning logging or similar cases on customary land in Solomon Islands. For an issue over the propriety of a logging licence over customary land impinges on the proper compliance with the law as well as custom. This has recently been pointed out in Derrick Halu and Others –v- J P Enterprises and Others (Halu’s case)^[4].

Having said all that, the issue now before the Court is whether the plaintiffs should be allowed to come to this Court at this stage to ask for injunctive relief. If not, then their summons filed on 27^th June 2003 and amended on 11^th September 2003 should be struck out. This entails that they must show that they have locus standi to come before the Court in this matter. The question as to whether this Court has jurisdiction to grant the injunctive relief comes into consideration only if the plaintiffs are allowed to bring their application and ask for the relief.

Notably in the plaintiffs’ amended summons, the only relief sought is to restrain the first and second defendants from carrying out logging until they comply with the provisions of the Forest Resource and Timber Utilisation Act. Implicit in that prayer of relief is that the first and second defendants have not complied with the requirements of the law. This distinguishes Halu’s case^[5] from this case. This distinction, I feel, justifies this Court not striking out their Amended Summons.

The application by first and second defendants to strike out the plaintiffs’ amended summons filed on 11^th September 2003 is refused. The circumstances under which the parties have come to argue their case in this present application justify that each party bears his own costs.

Sir John Muria
Chief Justice

^[1] Gandley Simbe –v- East Choiseul Area Council & Others (21/10/1998) unreported, Court of Appeal, Civ. App. Case No. 8 of 1997
^[2] Allardyce Lumber Company Ltd & Another –v- Nelson Anjo (15/4/1997) Court of Appeal - Civil Appeal No. 8/1996
^[3] Harold Hilly & Another –v- Letipiko Balesi & Others (29/5/2002) High Court - Civil Case 224/01
^[4] Derrick Halu & Others –v- JP Enterprises and Others (21/8/2003) HC Civil Case No. 163 of 2003
^[5] Derrick Halu & Others –v- JP Enterprises and Others (21/8/2003) HC Civil Case No. 163 of 2003