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Kolombangara Forest Products Ltd v Principal Magistrate (Western) [2013] SBHC 47; HCSI-CC No. 25 of 2012 (3 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 25 of 2012

BETWEEN:

KOLOMBANGARA FOREST PRODUCTS LTD
Claimant

AND:

PRINCIPAL MAGISTRATE (Western)
First Defendant

AND:

DEDI LAKEVU, ZAUKERA DEDI AND STEVEN LAUKEVU
Second Defendant

AND:

PAUL OGE
Third Defendant

AND:

KITSON DEDI
Fourth Defendant

AND:

BENSON DEDI
Fifth Defendant

AND:

DICKSON DEDI
Sixth Defendant

Decision : 3 May 2013

A. Radcliffe for the Claimant
J.S. Pitabelama for the Second to the Sixth Defendants

DECISION

[1] This is a claim filed on 10 February 2012 by the Claimant seeking an order that, the interim restraining orders made by the First Defendant on 13 January 2012 in the Magistrates Court at Gizo, Western Province, in Civil Case No. 6 of 2012 against the Claimant be removed to the High Court and be quashed and an injunction be granted against the second to the Sixth Defendants and such further or other relief as the court thinks fit and costs.

[2] The interim restraining orders made by the First Defendant referred to herein is in these terms: (1) The First, Second and Third Respondents themselves, their agents, and/or servants are restrained from carrying out any form of felling, pruning, planting, digging, brushing and/or harvesting within Viru Customary land from Moqa to Ruvi, which according to the decision of the High Court of the Western Pacific Native Land Appeal Case Number 3 of 1973 declared as customary land owned by the Viuru Tribe of Kolombangara Island, Western Province; (2) consequence upon order (1) hereof, the First, Second and Third Respondents, by themselves, their agents, and/or servants shall not enter, harvest or carry out felling or planting in L.82, L.83 and L.84 which are located within the customary boundary of Viuru tribal land from MOQA to RUVI until an application for the declaration of whether, according to the decision of the High Court of the Western Pacific, Native Land Appeal Case Number 3 of 1973 that the land from MOQA to RUVI is customary land and owned by the Viuru Tribe of which DEDI LAKEVU represents; (3) consequence upon order (2) hereof, members of the Royal Solomon Islands Police or other Law Enforcement Authority shall be restrained from harassing, threatening, abusing, arresting, questioning, and/or interrogating members of Viuru Tribe who are now protecting their civil rights over their customary land by stopping unauthorized intrusions into their customary land until the dispute is resolved before a court of law; (4) Penal notice shall be attached to these orders; and (5) costs.

[3] The land on which the order by the First Defendant had imposed is registered land. The brief history of the land is this: The perpetual Estate on that land is held by the Commissioner of lands ("the Commissioner") who granted a Fix Term Estate of 75 years over the land, as Parcel Number 080-004-25 ("the Land"), to the Claimant on 5 December 1990. The 75 year period began to run from 1 January 1989. The land has an approximate area of 544 hectares. The Claimant uses the land, among other things, to plant trees of economic value. The boundary of the land has long been demarcated and known to people in the area including the Second to the Sixth Defendants. The boundary runs from a coastal peg VI to peg V4a and to peg K022, bearing 98 degree 10" with a distance of 1844m. Then the same boundary line extends to 276,000m uphill to the crater and down to Bohu on the south end, as depicted on map marked "MN2", annexed to the sworn statement of Mr. Mayson Nesa.

[4] The Claimant is a limited company incorporated in Solomon Islands. It had workers working on the land, between 3 - 6 November 2011, on 9 January 2012, 10 January 2012, 30 January 2012 and 31 January 2012. The Defendants obstructed the Claimant from the continuous implementation of its tree-planting program on the land. That caused damage and loss to the Claimant.

[5] Evidence in support of the obstructions on the dates set out in paragraph 4 hereof is derived from the sworn statement of Mr. Mayson Nesa as follows: Between 3 – 6 November 2011 the Third Defendant entered the land and cut and destroyed about 173 young Eucalyptus trees 6 months old planted by the Claimant on 9 January 2012. One of the Second Defendants, Zaukera Dedi, the Third Defendant, the Fourth Defendant, the Fifth Defendant, and the Sixth Defendant erected a wooden gate to block company road access at L84 of the land; on 10 January 2012 one of the Second Defendants, Zaukera Dedi, the Third Defendant, the Fourth Defendant, the Fifth Defendant and the Sixth Defendant erected a wooden gate at L81 to block road access to the Claimant not realizing that L81 road is within Catholic church Registered Fixed Term Estate; on 30 January 2012 one of the Second Defendant's, Zaukera Dedi, the Third Defendant, the Fourth Defendant, the Sixth Defendant and another person named Jeffery Ghabu erected a wooden gate to block Claimant to access the road at L82 of the land; and 31 January 2012, the Third Defendant, the Fourth Defendant and the Sixth with another person blocked the road at L81 on the land. There were also unmanned road blocks to L81, L83 and L84.

[6] On 15 March 2012, the Claimant obtained an interim order against the Defendants. The first paragraph 1 of that order restrained the Second to the Sixth Defendants, their relatives, agents or associates in anyway in interfering with the Claimant's operations on its registered land, including parcel number 080-004-25 on Kolombangara Island, Western Province, and from damaging any of its properties. In response, the Defendant's contend by way of their application that the Claimant's interim order be brought to court to be quashed. They rely upon sworn statements, in particular that of Mr. Dedi Lakevu who deposed that the Claimant's land is composed of Viuru Customary Land owned by the Viuru Tribe of which he is a member. They say that their tribe allowed Levers Pacific Timbers to carry out logging on the land. The Tribe had not made any agreement with the Commissioner of Lands nor the Claimant to plant trees on the land. And that he went as far as the High Court of the Western Pacific in Appeal Number 3 of 1973 to obtain judgment on the boundaries and the ownership of Viuru Customary land by the Viuru Tribe. He purported to annex a copy of the High Court decision to his sworn statement, which he actually did not do so. It is apparent to this court that the sworn statements which the Defendants rely upon in this case are being prepared by their solicitor to be used in another civil case against the Claimant and the Attorney General as the Defendants. That could be the reason for the non-attachment of the High Court Decision alluded to in the sworn statement of Mr. Dedi Lakevu to this court.

[7] It is apparent to this court that the Claimant holds a registered Fixed Term Estate Title to the land on which it currently carries on its business. It is entitled to have its rights protected, So that they are not interfered with. The land can only become customary land if the present registered titles are removed by process provided under law. This court does not have jurisdiction to decide boundaries and ownership of customary land. In the circumstance, the Claimant is granted the relief it seeks in its claim with costs. Assessment of damages, if it any, may be done on a date to be fixed by the Registrar. This application is granted with the orders sought therein.

Order : 1. Allow the application by the Claimant.

2. Restraining orders made by the First Defendant on 13 January 2012 against the Claimant are quashed.

3. Injunction in terms to be engrossed by the Claimant against the Second to the Sixth Defendants.

4. Defendants to pay the costs of the Claimant.

THE COURT