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Raetora v Taiare Resources Management Company [2016] SBHC 153; HCSI-CC 637 of 2015 (19 September 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: RODNEY RAETORA, ELVIS RAETORA, - Claimant
JOHN WAIKIRU, AIHUNU HOUAKAU &
MORRIS OAHURA
(Representing themselves and the members of
Their Horanamae/Suramane Tribe of West Are’Are
Malaita Province)

AND: TAIARE RESOURCES MANAGEMENT COMPANY - 1^st Defendant

RITETRADE PACIFIC LIMITED - 2^ndDefendant

Date of Hearing: 26 August 2016
Date of Judgment: 19 September 2016

Mr. Hou A for the Claimant
Mr. Upwe B. for the 1^st and 2^nd Defendant

Application to dismiss under Rule 9.75 and to discharge ex parte injunction

Brown J:

The 1^st basis upon which the defendant seek to dismiss these proceeding, that no reasonable cause of the action has been disclosed in the statement of claim is the plea of ownership of the customary land, a plea which this court has no jurisdiction to determine. For that issue is one for the Local Court if landowners are aggrieved by the Council of Chief’s decision concerning ownership. The Customary Land Appeal Court may decide when that issue is referred by disputed decision of the particular Provincial Executive, in accordance with the provisions of the Forest Resources & Timber Utilization Act or the Local Court under the Land and Titles Act.
The plaintiffs are alleged to have no locus standi to bring the action and may, as a consequences be seen to bring action which the applicant says, should be struck out in accordance with Rule 9.75 of the Civil Procedure Rules of Court.

The interim injunctions granted ex parte on the 29^th December 2015 should be discharged following the finding of the Namoaraha House of chief’s determination which effectively denied the plaintiffs standing as primary land owners. For the interest claimant by the plaintiffs is subject to that of the Roho customary landowners, for Suramame /Horanamae is but a portion of land within Roho tribal land.

From the submission in support of the application to dismiss, and on any reading of the statement of the plaintiff’s case, it is clear the plaintiffs claim ownership of the customary land in dispute and it is alleged but denied, that the defendant operated illegally, thus affording the plaintiff’s the right to claim damages for trespass, eviction orders and a permanent injunction to prevent these people logging in future.

Mr. Upwe, counsel for the applicants, who argued for the absence of locus standi referred me to this Court’s statement in Kongungaloso Timber Co. v Attorney General ^[1]as affording direction when considering the question of locus standi.
“It is a condition precedent to possession of locus standi that the applicant must have a special interest in the subject matter of the dispute.”

The special interest was lacking, he says for two reasons. These plaintiffs are not the primary owners of the customary land and certain persons have been determined as these entitled to grant timber rights over the disputed lands.
The plaintiffs are not amongst those persons found entitled to grant timber rights, for those persons are the only ones with whom logging investors are obliged to deal when carrying out logging operations on customary land. [Of course, on the ground the disputation would necessitate negotiations if logging was not to be halted at every tree]. The phrase customary landowners may well apply to a genus of persons not necessarily those found able to treat with the forest resource in terms of the Forest Resource and Timber Utilization Act for those persons found entitled to grant timber rights represent the landowning genus as a whole. Mr. Upwei points to Tovua anors v Meki anors^[2] as authority for the proposition that a challenge to the logging operations within Roho/ Anato’o lands lies with those persons determined as entitled to grant timber rights over the land, otherwise “Any dispute between those persons and members of their tribe in relation to the logging operation is an internal matter to be settled between the members in the proper forum.”
In other words, the fact of land ownership, does not enable them to maintain proceedings against these defendants. Mr. Upwei points to the avenue for redress in a proper forum. [Irene Keuni anors v Kia/Katova Area Council anors^[3]]

The timber rights procedure enables a person or other applicant for a timber concession to deal with particular representatives able to grant timber rights and thus be protected from claims by others. In retrospect, claims have proliferated over the years and the Court of Appeal has had to decide on manifold different factual situations brought before it by aggrieved litigants. In Gande Simbe v East Choiseul Area Council^[4] the Court of Appeal said:- “The existence of a valid timber rights agreement, is, for reasons already pointed out, an indispensable prerequisite of a valid license. Without it there is no right to enter on customary land or to fell and remove trees from it.”

Here the issue is simple, the timber rights process has not been impugned, rather the claimants rely on customary ownership of land [known as Horanamae/ Suranamane] claimed to be not subject of the timber rights process, for the land was not named as the subject of any concession.

The defendants say they have been operating in Roho and Anato’o customary lands, which lands I am satisfied from the material filed on their behalf by Desmond Rowmane, are lands included in the license concession.

The evidence in support of the claim is that of Morris Oahura one of the plaintiffs whose statement contained these material paragraphs.

4. Our tribe is the owner in custom of Horanamea (also known as ‘Suramane’) customary land (“land”) also situated in West Are’Are, Malaita Province.
6. Now shown to me and annexed as “Exhibit MO 1” hereto is a true copy of a map showing the location of our land in West Are’ Are, Malaita Province, its boundaries and the other portion of customary lands lying adjacent to it.
7. The first Defendant/Respondent is an unregistered entity currently holding Felling License No. A10935 (“Felling License”) issued by the Commissioner of Forest on 02^nd October, 2015.
8. Now shown to me and annexed as “Exhibit MO 2” hereto to a true copy each of a letter dated 17^th December, 2015 by the Register of companies confirming the unregistered status of the first Defendant/Respondent and its said Felling License No. A10935.
9. The first Defendant/Respondent’s Felling License covers Irapaina, Apunauta, Siraraiwai, Ahoroa, Hauakora, Haurao,Tariohu, Hanuapusu, Siararaitora,Rani, Pau, Roho, Ana’ato, Nanaraniau, Hausiwa, Naonihau, Huro, Hanuaraua and Ohoraha customary lands all situate in West Are’Are, Malaita Province.
12. Pursuant to a Technology, Marketing & Management Agreement (“TMMA”) the First Defendant/Respondent entered into with the second Defendant/Respondent on 10^th November, 2014, the former engaged the latter to carry out logging operation within its licensed concessions.
13. Now shown to me and annexed as “Exhibit MO 4” hereto is a true copy of the TMMA referred to herein.
14. On 23^rd August, 2015, the landowners of Ana’ato customary land pursuant to a Felling Agreement (“FA”) they entered into with the First Defendant/Respondent consented to it carrying out logging operations thereon.
15. Now shown to me and annexed as “Exhibit MO 5” hereto is a true copy of the FA referred to herein.
16. In accordance with the TMMA and FA herein, the first and second Defendants/Respondents around early September, 2015 entered Ana’ato customary land on the south near the Ooke Stream with their logging machineries and equipment and carried out logging operation thereon.
17. For purpose of their logging operations on Ana’ato customary land, the first and second Defendant/Respondent created ten (10) blocks.
18. In creating the 10 blocks however, the First and Second Defendant/Respondents trespassed onto our adjoining land on the north of the Tarihehenu Stream and created parts of blocks 7 and 8 and the whole of blocks 9 and 10 thereon.
19. As the First and second Defendant/Respondents continued with their logging operations on Ana’ato customary land, they also crossed the Tarihehenu Stream onto the concerned parts of blocks 7 and 8 within our land including blocks 9 and 10 which are wholly within it and carried out logging operations thereon.
20. Our land does not form part of the First Defendant/Respondent’s concession under its said Felling license.

It is clear from the statement that plaintiff’s claim as landowners of Haranamae/Suamane customary land and plead trespass by the 1^st and 2^rd defendant into that land. No issue is raised about a timber rights agreement, so I am satisfied validity [going to the timber rights process] is not in issue, rather the boundary description of the separately claimed land is the issue in contention. At paragraph 22, of his statement, Morris Oahura says:-
“ By letter dated 09^th September, 2015 however, the said Rodney on behalf of himself, the rest of us the claimants/Applicants and the members of our Tribe after holding talks with the landowners of Ana’ato customary land and the representative of the First and Second Defendants/Respondents agreed that they resume their logging operations within Ana’ato customary land by 10^th September, 2015 but not within those concerned parts of blocks 7 and 8 including blocks 9 and 10.

I reproduce the annexed Letter (omitting formal parts) “Exhibit MO 6”

Camp Manager
Rite trade Pacific Ltd
Waisisi Camp
Dear Sir,
RE: HALTING OF RITETRADE/TAI’ARA OPERATION IN ANATOO TRIBAL LAND

This letter serves to officially revoke my group of landowners’ letter on the above underlined subject dated September 2015.
Whilst we are in the process of solving the issues raised amicably and internally with the Tribal Land Committee, logging operation in Anatoo land can resume as of 10^th September 2015.

At this juncture, on behalf of the concerned landowners whose names appeared in the complaint letter and our supporters, I would like to apologize for the great concerns and inconveniences caused to the company operation.
Hope to work closed together with the company and license management in the course of our operation.

Thank you

Yours Faithfully
Rodney Reatora
Cc: Anatoo Land Committee
Cc: Tai’ara License

That letter, by another of the named plaintiffs speaks of halting Ritetrade/Tai’are operation in Anato’o tribal land. There is no mention of blocks 7, 8, 9 or 10 in the letter nor any assertion of ownership of this separate parcel of land rather it implies a disagreement within the tribal land committee.
Because it seems, of further disagreement, a meeting was convened on the 9 November 2015 and copy of the decision was annexed to Morris Oahura’s statement as Exhibit “MO 7”

Anato Tribal Land
West Are’Are
Malaita Province
Date: 9^th Nov 2015

To: Camp Manager
Rite Trade Pacific Ltd
Waisisi Camp
West Are’Are

Dear Sir,

Re: Resolution passed during our meeting
We refer to the meeting held on 9^th November 2015 at Canikara village between Horaramae and Anato.

Upon that meeting the following resolution was reached.

➢ Namoaraha council of chief’s to hear the clause/dispute made by Haranamae against Anato land boundary.
➢ Royalty money to be held on custody by the contractor.
➢ Either party where panel’s decision made in favour of shall receive the royalty money.
➢ Logs from dispute area to be market with AH.
➢ Logs from Tarihehenu to Oke to be market AT.
➢ Skidding, Hauling and scaling of all these logs shall be carried out by the company.
➢ A total of six land guides were assigned by Anato-Haranamae to be paid by the company at $ 500.00 per head.
➢ 13^th to 14^th November was set for the panel to hear this case.

The resolution was upon y the undersigned persons.

Anato:

(1) John Hauanikura
(2) Tom Ririoa
(3) Stephen R

Horanamae:

(1) Rodney Reatora

Witnessed: Alick Hauha’iosi
David Koka’e

It is clear from the annexed “MO 7” this letter did not reflect an agreement with the licensee or contractor over Anato’o land but was in nature a direction to both, a direction which was disregarded for a further letter “Exhibit MO 8”, was written on the 10^th November 2015.
“RITETRADE PACIFIC LTD
P.O. BOX 22, HONIARA
SOLOMON ISLAND

HORANIMAE INTERIM TEAM
SIUA, WEST ARE’RE
MALAITA PROVINCE
DATE: 10/11/2015

DEAR SIR,

Subject: Unlawful Trespass into Horanimae Customary Land

Your attention is hereby drawn to the above subject
This serves to inform you that your operation has been unlawfully trespass into Horanimae customary land. The illegal entry was committed in order to execute road access and illegal felling. Physical inspection was carried out and confirmed that your operation in Horanimae land is illegal and unlawful.
Further, subject to a minute produce on date, 27/10/2015 the chiefs and land owners attend a meeting atwaisisi (namoraurasu) have been confirmed and agreed of unlawful trespass and illegal entry to harvest or fell any of the sub tribal lands subjected to poosia customary land authority (Arata). Your action is therefore seriously in breach of relevant requirements under the forest resources and timber utilization act. Your action also undermines the integrity of land owners and display completed disrespect.
Your entry into above land was made on none allowable consented area. (HORANIMAE CUSTOMARY LAND).
In view of the above, all export logs within horanimae customary land will be halt retain to the land owner. We trust and hope the content and purpose of this letter is clear and understood by all concerned.
This is serious and will be effective upon the time you received.
Thank you
Rodney Raetora John Waikiru
For Land committee For land committee
Elvis Reatora
For Chief (land owner) )horanimae)
John K Uipaewa
For Chief (landowner) arata po’osia
AIHUNU HOUAKAU
For Land owner (horanimae)

Clearly Elvis Raetora, one of the claimants, was acting for these named claimants and trespass was alleged.

By paragraph 35 of his statement of Morris Oahura says:-
“ Before we acted on our said letter of 20^th November, 2015 and actually blocked the access road to the operation site on the disputed parts of blocks 7 and 8 including blocks 9 and 10, the first and second defendants/Respondents on the false evidence of one John Kerehai (Mr. Kerehai”) the First Defendants/Respondent’s Director, who has no right of ownership over either Ana’ato customary land or our land deliberately misled the Magistrates Court on 23^rd November, 2015 and obtained inter alia ex parte interim restraining orders against us in civil case number 397 of 2015 (“CMC-CC397/15)”

By the terms of the statement, Morris Oahura was very assured of these claimant’s rights to the separate land. These proceedings were instituted and an injunction granted to protect the status quo pending the defendant’s opportunity to answer the claim of right to the land.

Mr. Hou, Counsel for the plaintiff, tendered in support of his clients, Minutes of Namoaraha Review Team hearing held at Kopo village, Waisisi on 11-13 January, 2016, (Exhibit 1 [a], [b]) for in fact these persons, or claimants have standing as landowners, for they are named by the Review Team. For the Review Team stated it had settled the discrepancies or land issues concerning the members of the landholding group of Horanamae and Suramane. The issues concern the disputed boundary [aiari] at Tarihehenu stream and Anato stream. The logs that were cut between these disputed boundaries were the subject of the land issue. For it was clear these various letters from the claimants sought to separate Ana’ato land from the other land named, to justify the refusal to allow these defendants continued access to log, even though the claimants suggested earlier their concerns could be addressed by the tribes.

The Namoaraha Review Team, in effect a Council of Chiefs, made these findings after exhaustive hearing according to the Minutes.
“1. 13 Anato is no longer a Tribal land. It is a sub- tribe under Roho tribal land.
2. 14 & [3] 15 Since Anato is now a sub- tribal land within Roho, Tarihehenu stream is not recognized as the boundary.
4. 16 Today Tarihehenu stream is now a stream within Anato sub- tribe land.
5. 17 Anato and Suramane/ Horanamae should take time to further consult with the authority of Roho. The authority [Namoaraha Review Team] has found out that you are of the same tribe and you need to work together to put this miss understanding straight within the authority of Roho.
6. 18 This is the understanding of Namoaraha Review Team concerning the disputed logs marked as AH that both parties [Anata and Suramane] must take account for the logs and share the proceeds/ benefits between your two parties: Anato and Suramane.
7. 19 The authority of the Namoaraha Review Team request that Anato should recognize respect and reveal all the genealogy within that sub- tribal land.
8. 20 Sutanamae is now declared as the 5^th sub- tribal land [te’ete’e] under the tribal land of Roho.
Horanamae is a place of history of Irawewe, is only a portion of land within Surammane sub-tribe within Roho Tribal land or [Arata].

This finding of the Chiefs was acknowledged by these claimants as binding them. This is found in the Resolution of the 9 November 2015.
The Chief’s decision clearly places Suranamae as sub-tribal and [Te’ete’e] under the tribal land of Roho. Roho land was land subject to the logging license of the Tai’ave Resources Management Company.

The assumed facts in the claim and statement of case have been shown to be untrue.^[5] The claimants’ refer to the judgment of the Court:- “In determining whether a reasonable cause of action is disclosed, the court assumes that the facts averred in the statement of claim are true. On those assumed facts, the court decides whether a tenable case has been disclosed for the relief claimed by the plaintiff.”

In this case, the Chiefs decision puts flight to the facts averred by these claimants.
The claimants have been shown to have no standing to bring this action. The land is not separate from the land the subject of a logging license. In the case of land found to be subject to a valid license, customary owners’ rights, failing findings on appeal, are against those appointed the right to deal with the timber resource, representative of all owners, whether subsequently named after the timber rights hearing or not.

Customary owners’ rights, in these circumstances are rights in personam for the representatives found to be able to deal with the timber resource, are liable to account to the customary owners, not perhaps equally but in accordance with distributive justice in custom.

Trespass is a tort actionable at the suit of persons in possession and it appears no defence to the assertion of possession has been made rather the defendants rely on the evidence against ownership. Nor do the defendants seek to plead their logging was done by the authority of the true owner. For the defendants carried out logging justifiably by virtue of the logging license. The license to log is of statutory form and rather sets askance the common law tortious action for trespass, previously actionable at the suit of a person in possession. It stands to reason, tribal members of their tribal lands may claim against trespassers. But not, it seems once persons are found representative of all landowners [and presumably of those tribal or sub- tribal members in possession] willing to invest powers to grant timber rights over the subject land to such persons and such grant is made, in this case to the 1^st defendant. For in those circumstances, where there is no dispute concerning the boundaries of the land affected by the logging license [ and great care should be exercised to geographically map the extent of the concession area or areas, not just refer to a particular tribal description] any rights of landowners, absent findings on appeal under the Act, are against those found representatives for a customary distributive share.

The Review Team Minutes satisfies me the land description and boundaries in dispute corresponds with the concession land. Whilst obviously in possession of the land, the claimant’s rights of “ownership” in a customary sense are developed by the Review Team or Council, and do not afford the claimants the right to speak for Roho customary land. There is no basis for the continuation of the injunction.

The claim shall be dismissed. The injunctive order shall be discharged.

I see the claimants have given an undertaking as to damages when seeking the injunctive orders so these proceedings will remain on foot to the extent necessary to afford the defendants an opportunity to recover losses suffered as a consequence of the interlocutory order. The parties may settle that claim by distributive justice in custom while dealing with the value of the logs taken from the disputed land, failing which this court may entertain the claim for damages.

Two ideologies, the adopted concept of legislative method and the established customary dispute resolution are difficult to reconcile in practice. In this case the Council of Chiefs have shown appreciation of their powers and responsibilities in relation to customary dispute resolution and land ownership as an incident, and carried out their function. This avenue is closed to this Court in the first instance and is seldom within the Courts’ power. I would not presume to set guide-lines in that regard nor are they relevant here. There has been the use of this Court’s process in an attempt to resolve disputes more properly dealt with else-where. The fact of the undertaking as to damages is a matter for sober thought in these cases, since it is necessary to clearly identify the issues in dispute, matters for customary dispute resolution or matters directly concerned with the method or process used pursuant to the Forest Resource and Timber Utilization Act. In this case, where in fact the claimants take no issue with the process of the Act, but interfere with the contractor, claiming rights which can only sound in a claim in personam against the found representatives of all landowners, their acceptance as tribal members of the group [but asserting to have been overlooked when negotiations were conducted in accordance with the Act for the timber rights], impliedly acknowledges the inclusion of the very land which they, by these proceedings, seek to exclude. These claimants are interdependent with other tribal members upon the land. The Namoaraha House of Chiefs accepts their tribal standing and their land as within the Chief’s cognizance. I am satisfied these claimants are within the groupings of tribes and sub- tribes under the suzerainty of the Namoaraha House of Chiefs. In these circumstances they are also bound by the determination of those found able to grant timber rights, for they are within the sub-tribe of Roho. Their rights if any, are in personam against those determined to be representatives of customary landowners, [including perhaps, these claimants].

Under the Forest Resources & Timbers Utilization Act, once persons are found to represent all the persons lawfully entitled to grant such rights, and the application to log is accepted, the right to review any matter raised in the Provincial Executives determination is found in S.10, by way of appeal to the customary land appeal court constituted for this purpose. No such appeal has been pleaded here.
Orders

1. The earlier ex parte injunctive order given on the 29 December 2015 is discharged.
2. The claimant’s undertaking as to damages is still moot and shall remain on foot until further order.
3. The Claim filed on the 22 December 2015 is dismissed pursuant to Rule 9.75 [b] for no reasonable cause of action is disclosed.
4. The Defendants shall have their costs of these proceedings from the Claimants, to be assessed and agreed, or failing agreement, to be taxed.
   

BROWN PJ

^[1] HC-CC. no. 229 of 1998
^[2] [1988/89] SILR 74
^[3] HC-CC no. 382 of 1999 dated 26 January 20000.
^[4] [1999] SBCA 9; CA-CAC 8 of 1997
^[5] Earthmovers [Solomons] Ltd v Samuel Thao anors- HC-CC no. 65 of 1997