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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)
Civil Case No. 300 of 2011
BETWEEN:
DONALD ODIKANA & GWEN JITUKALO ABANA
(Representing themselves and Members of the
(Lezutuni Family)
Claimants
AND:
DALCY TOZAKA, EDIKERA KIRIA, JACK LAGOBE,
MAKIVA OKIVAKI AND TEDDY PAVO
First Defendants
AND:
RERESARE DEVELOPMENT COMPANY
Second Defendant
AND:
KALENA TIMBER COMPANY LIMITED
Third Defendant
Date of Hearing: 10 November 2011
Date of Ruling: 17 June 2012
A Hou for the Claimants
T Kama for First & Second Defendants
G Suri for Third Defendant
RULING
MWANESALUA J:
[1] This is an application by the First and Second Defendants filed on 21 October 2011 for the following orders:
(1) That the claim be struck out for the following grounds:
(a) The claim is frivolous and vexatious and it does not disclose any reasonable cause of action;
(b) The claim is res judicata; and
(c) The claim is an abuse of the process.
(2) Upon the usual undertaking as to damages, the claimants, their servants, agents, and those claiming through them, are restrained until further orders from entering the Second Defendant's Logging Operation areas of Reresare Customary Land, Tomea Camp, Suffrage Wharf, Log ponds and Logging roads, interfering with any contractual obligations of the Second Defendant and its contractor, the Third Defendant, in their Logging Operations, intimidating or threatening the First Defendants, any workers and invitees of the Second and Third Defendants and causing any damage to any logging machineries and equipment.
(3) The Honourable Court to declare that the boundaries of Kilebebala plantation as contained in the Map annexure "RY4" to the Sworn Statement of Richmond Yong Sworn and filed on 7 September 2011.
(4) Such further or other order as to this Honourable Court may seem meet.
(5) The cost of or incidental to this application be paid by the Claimants on indemnity basis.
[2] The Claimants filed their claim on 4 August 2011 seeking the following reliefs:
(1) A declaration that the Second Defendant's Amended Felling Licence No. A7007 covering Reresare Customary Land does not cover Kilebebala Customary Land which has its own boundaries to be physically surveyed and demarcated as ordered by the High Court in Civil Case No. 142 of 2006 and upheld by the Court of Appeal in Civil Appeal No. 30 of 2008.
(2) If the answer to Order 1 herein is in the affirmative, the following subsequent orders are sought:
- (i) An order for permanent injunction restraining the First, Second and Third Defendants, by themselves, and/or their servants, agents and others entering Kilebebala Customary Land in North-West Vella la Vella, Western Province, for purposes of carrying out logging operations and/or any related activities thereon.
- (ii) Damages for trespass to Kilebebala Customary Land and conversion of trees be assessed.
- (iii) Statutory interest at a rate of 5% on the sum to be assessed from 13th April 2011 until judgment.
- (iv) Costs of and incidental to this action on indemnity basis.
- (v) Such further and other orders as the Court thinks fit to make in the circumstances.
(3) Alternatively, if the answer to Order 1 herein is in the negative, the following subsequent orders are sought:
- (i) All royalty monies payable in respect of all logs felled and extracted from Kilebebala Customary Land be assessed and paid to the claimants for and on behalf of the members of the Lezutuni family.
- (ii) For purposes Order 3(i) herein, the fact, the First, Second and Third Defendants fully account for all the logs felled and extracted from Kilebebala Customary Land in terms of species and value.
- (iii) Statutory interest at the rate of 5% per annum on the sum of royalty monies accounted from 13th April 2011 until judgment.
- (iv) Costs of and incidental to this action on indemnity basis.
- (v) Such further and other orders as the court thinks fit to make in the circumstances.
[3] The First Defendants in this claim are Dalcy Tozaka, Edikera Kiria, Jack Lagobe, Makiva Okivaki and Teddy Pavo. Each of them holds 2,000 shares in the Second Defendant, Reresare Development Company Limited, which was incorporated on 13 September 1999 and re-registered on 31 March 2011. The Second Defendant obtained a Felling Licence No. A10007 from the Commissioner of Forest Resources. The Licence took effect from 21 July 2010 and will expire on 21 July 2015. The Licence covers Reresare Customary Land (stages 1 and 2), on Vella La Vella, Western Province. The Third Defendant is the Logging Contractor for the Second Defendant on Reresare Customary Land.
[4] The Claimants are Donald Odikana and Gwen Jitukalo Abana. The Claimants' case is that, the First, Second and Third Defendants resumed their logging operations on Kilebebala Customary Land, without seeking their prior permission, agreement and/or consent of the members of the Lezutuni family. This resumption of logging operations occurred almost immediately when this Court struck out Civil Case No. 135 of 2011 and discharged the interim restraining orders of 15th April 2011.
[5] The Defendants' case, is that this claim is frivolous and vexatious and discloses no reasonable course of action on the ground of res judicata.
[6] After the claimants filed their claim as stated above, they obtained an ex parte order against the First, Second and Third Defendants, including their servants, agents and other persons acting under their authority. That order, among others, restrained the Defendants from entering the claimant's private piece of land known as Kilebebala Customary Land.
[7] The boundary of Kilebebala Land was surveyed by Mr Lancelot Tapo'oa on 13 to 17 September 2011. His survey report is annexed as "Exhibit LT" to his Sworn Statement of 28 September 2011. Attached to his survey report are two maps. The first map shows the alleged boundary of Kilebebala Land as a whole. And the second map shows the pegs indicating the boundary of Kilebebala Customary Land. It was verified by that report that the Second and the Third Defendants allegedly carried out logging operations within the boundary of Kilebebala Customary Land. The survey was carried out on the instructions of the elderly members of the Lezutuni family living in Honiara
[8] The Defendants say that the Claimant's Land is confined to the boundary of the land covered by the Kilebebala Coconut Plantation which is situated within Reresare Customary land.
[9] The ground survey report of the boundaries of Kilebebala Plantation is covered in Mr Savakana's Memorandum of 6 September 2011 to the Permanent Secretary, Ministry of Forest and Research. Paragraphs 3 and 7 of the Report state:
KILEBEBALA PLANTATION
(Facts and Findings)
"3. The Kilebebala Plantation is situated at Reresare Customary Land as mentioned by the Landowners of Reresare Tribe led by Chief Jack Lagobe and Lezutuni's Family. The two groups came together to determine and demarcate the boundary of the Kilebebala Plantation. We identified two(2) locations and planted Peg No.1 and Peg No. 2 and inspected the current operation area within Reresare Land shown on the Map Scale 1:50,000 attached."
Conclusion
"7. After finding and observation with the Reresare Landowners both the Reresare Tribe and Lezutuni Family, we affirmed that there is no logging activities or machineries and no felling of any trees within Kilebebala Plantation. The current operation area or existing road network, campsite and log pond are confined within the Reresare Customary Land, as shown on Map Scale 1:50,000 attached. Although the complaining relatives might not agree with the boundary, it is necessary for them to return home or village to sort out their internal issues. The current determination of Kilebebala Plantation boundary is safe from the KTC operation area. Finally, I have witnessed the groups of Reresare Tribe and Lezutuni's family signed the consent to assure that no logging activities occur within the Kilebebala Plantation. The Map is signed by Dalcy Tozaka and Chief Jack Lagobe, witnessed by me."
[10] The Customary ownership of Reresare Land, its boundary and the ownership of Kilebebala Plantation have been determined by the Vella la Vella Local Court (VLC) in Land Case No. 1 of 1991 between Jack Lagobe and Dalcie Tozaka –v- Frank Lezutuni, delivered on 1 July 1994. The relevant part of the decision states:
"DECISION
[11] Frank Lezutuni appealed this decision to the Western Customary Land Appeal Court in Land Appeal Case No. 2 of 1994 between Frank Lezutuni –v- Jack Lagobe and Dalcie Tozaka. The Court delivered i ts judgment 2 June 1996 upholding the decision of the Vella la Vella Local Court but adding that:
(i) Jack Lagobe came from the women side who owns the Reresare Land and the Land tribal chief of Reresare.
(ii) For the purpose of development by the members of the Reresare tribe to consult their Land tribal Chief".
[12] A dispute then occurred between Donald Odikana (one of the present claimants) and Jack Lagobe on the boundary of Kilebebala Plantation. This led to another Local Court Case No. 5 of 1999 between Odikana –v- Lagobe and other. The Vella la Vella Local Court delivered its judgment on 30 October 2004. The Court held, inter alia, that the Land from Nyana river to Oula river on the coast developed by Silas Lezutuni and his children belong to the Lezutuni family. And any virgin land from Nyanga river to Oula river will remain under Jack Lagobe's control, Chief of the Reresare tribe.
[13] Jack Lagobe and Donald Odikana lodged cross appeals against the decision of the Vella la Vella Local Court to the Western Customary Land Appeal Court in Land Appeal No. 49 of 2003 and 5 of 2004. The Western Customary Land Appeal Court delivered its judgment on 10 October 2005 with an order quashing the VLC decision and decided that "The boundary of Kilebebala Land is from Kilebebala point along the coast to Nianga River, then along up that river to interior at the edge of foothill and across to Oula River and down along that river mouth, then along the coast to Kilebebala point".
[14] Jack Lagobe and Dalcy Tozaka filed Appeal Case No. 8 of 2006 and an application for Judicial Review Case in Civil Case No. 142 of 2006 against decision of the Western Customary Land Appeal Court delivered on 10 October 2005. The First Defendants were Donald Odikana and David Gina. The Second Defendant was the Attorney General representing Acting President of Western Customary Land Appeal Court and The Magistrate Clerk of Western Customary Land Appeal Court) – 2nd defendant. Both matters were amalgamated and heard together by this Court on 3 October 2008 and judgment delivered on 24 October 2008.
[15] The relief for Judicial Review was for a quashing order directed to the Second Defendant that the judgment of the Western Customary Land Appeal Court delivered on 10 October 2005 in respect of the boundary of Kilebebala Plantation within Reresare Customary Land be removed to the High Court and be quashed. That boundary is set out in the last sentence in paragraph [13] above. The Judicial Review and the Appeal were both successful and the Court relevantly made these orders:
"1. That a quashing order is directed to the Second Defendant and to the effect that the judgment of the Western Customary Land Appeal Court ("WCLAC") made on 10th October 2005 ("the Judgment") in respect to the boundary of Kilebebala Plantation within Reresare Customary Land be removed to the High Court and therefrom be quashed.
2. The appeal be allowed.
3. And declared that the family of the Late Frank Lezutuni (including the First and Second Respondents/Defendants) have the right to reside on and use the coconut plantation known as Kilebebala Plantation, limited to the actual area originally planted with coconuts, but they have no personal rights in Reresare Customary Land outside of the boundaries of the said Plantation.
4. It is declared and confirmed Reresare Customary Land, excluding the said plantation, is owned by Reresare Tribe, the lawful representative of which are the Applicants.
5. That a physical survey to be carried out to determine the precise and physical boundaries of Kilebebala Plantation".
[16] Odikana, Gina and Western Customary Appeal Court appeal against the High Court decision to the Court of Appeal in Court of Appeal Civil Case No. 30 of 2008. The Court of Appeal dismissed the Appeal and confirmed that High Court decision. Further, among other things, the Court confirmed the principle of res judicata applied in the case as discussed by His Lordship Justice Faukona in his judgment.
[17] On 12 October 2011, the Claimant Gwen Jitukala Abana, with her relatives, Eddie Maena Kidoe, Virginia Kuper, Rozema Veasi went to Tomea Camp and occupied Silas Odela's house. At midnight they walked up to the main logging road and set up a road-block with logs placed across the main road. Mrs Abana said that she was in possession of a Court Order and people at the Camp should leave. But the camp and log pond area are miles away from Kilebebala Coconut Plantation.
[18] The boundary of Kilebebala Land surveyed by Mr Tapo'oa on 13 and 17 September 2011, covered the Second Defendant's entire concession area and on which the Third Defendant was contracted to carry out logging operations. That boundary covers Reresare Customary as well and is wrong.
[19] According to Mr Savakana's report, no logging activities or felling of trees has occurred within Kilebebala Plantation. The report shows that current road network, camp site and log pond are situated within Reresare Customary Land.
[20] It is clear from the VLC, the WCLAC cases, the High Court and Court of Appeal cases, that they concern disputes of the ownership and boundaries of Reresare Customary and the ownership and the boundaries of Kilebebala Plantation. The same tribal or clan members were involved in those court cases. But while the boundaries of Reresare Customary Land had been decided, the correct boundaries of the Kilebebala Plantation have yet to be precisely demarcated as directed by the High Court and confirmed by the Court of Appeal. The High Court, per Justice Faukona, directed that the boundaries of Kilebebala Plantation is to be where the original area planted with coconuts. It is obvious to this Court that the principle of res judicata applies to the Claimants' current claim. The claim is struck out.
Order:
1. The First and Second Defendants' application succeeds.
2. Orders sought in the application, but excluding the order sought in paragraph [1](3), are granted.
3. The Claimant is to pay the Defendants' costs on indemnity basis.
4. The boundaries of Kilebebala Plantation as directed by High Court by Justice Faukona is to be complied with.
THE COURT
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