Eastern Development Enterprises Ltd v Kame [1995] SBHC 81; HC-CC 269 of 1995 (19 October 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 269 of 1995

EASTERN DEVELOPMENT ENTERPRISES LIMITED
Plaintiff

-V-

BUFFET KAME
(Representing the ETINGI CLAN)
Defendant

(Palmer J.)

Hearing: 18 October 1995
Judgment: 19 October 1995

P. Tegavota for the Plaintiff
A. Radclyffe for the Defendant

PALMER J: The summons filed by the Defendant on the 21st September, 1995 seeks orders as follows:

1. that the Order dated 8th September 1995 be discharged; and
   
2. that the Plaintiff’s writ be struck out as disclosing no cause of action or;
   
3. that the Plaintiff, its servants or agents be restrained from entering on Pahena Land (LR 673) and that they remove from Pahena Land (LR 673) all machinery and other equipment or materials belonging to the Plaintiff forthwith.
   

The first ground raised in support is that the area of land covered by the timber rights agreement and the licence of the Plaintiff to fell and remove trees for export is not in Pahena Land or LR 673. "Annexure P8" in the affidavit of Philip Tegavota filed on the 8th of September, 1995, is the Timber Rights Agreement of the Plaintiff dated 29 May, 1995. Clause 1 of that Agreement described the customary lands as from "Pigi to West Bank of Fufuana". The Defendant says that "Pigi" is located at the place called Pukuhoghelera. Pukuhoghelera in turn is located at the boundary between LR 673 and LR 674. The area of land covered therefore in that Timber Rights Agreement he contends is outside the boundaries of LR 673 (see exhibit "B" attached to affidavit of Buffet Kame filed on 21 September 1995). Also, in "Annexure P9" in the same affidavit of Philip Tegavota above, the land is described as "LR 673, Pigi to West Bank of Fufuana."

By virtue of the above descriptions, the defendant argues that the area covered by the Timber Rights Agreement and licence of the Plaintiff do not lie in LR 673 as claimed.

With respect, the validity of the above argument is dependent on the location of the place called "Pigi". If "Pigi" is indeed located at Pukuhoghelera, then what the Defendant says will be correct.

The Plaintiff did not make any appearance at the hearing of the Defendant’s summons despite being served. No evidence to the contrary therefore has been made available. This therefore must go to the benefit of the applicant in this summons despite the fact that there does appear to be evidence that the area of land covered by the Timber Rights Agreement and the Licence, may be infact LR 673. However, there is one argument that is relevant and may be determinative of that particular description.

In paragraphs 3., 4., and 5. of the affidavit of Buffet Kame filed on the 21st of September 1995, it is claimed that there is in existence a valid timber rights agreement and felling licence over Pahena Land (LR 673) in favour of Isabel Timber Company. This had been through the usual procedures set out in the relevant Act and the persons identified as those lawfully entitled and able to grant those timber rights were John Uluhoru, Alice Madevehe and Elsie Koitoke. It is interesting to note that the same three persons names above were also included in the list of names in the Timber Rights Agreement of the 29 May, 1995 ("Annexure P8") with the Plaintiff Company.

If as claimed by the Defendant, that there exists a valid Timber Rights Agreement and felling licence in favour of Isabel Timber Company (I point out here that copies of those Agreements and Licence should have been filed as well), then that would give exclusive rights to Isabel Timber Company to fell, harvest and export logs from Pahena Land. This could very well be the reason why the Timber Rights Agreement of the 29 May 1995 and the Licence No. TIM 2/78 have been expressed to be over an area from Pigi to West Bank of Fufuana, which according to the affidavit evidence of the Defendant tends to show is an area outside LR 673. On the balance of probabilities, I am satisfied that the order of the 8 September, 1995 be discharged forthwith.

On the question as to whether the Plaintiffs writ be struck out as disclosing no cause of action, I am hesitant in the absence of concrete evidence as to the Timber Rights Agreement and the felling Licence of Isabel Timber Company, to grant that. Had copies of those documents been filed then there would have been good grounds for granting that order. Also, the question as to the validity of the hearing conducted by the Havulei/Kokota Area Council in respect of that land is a triable issue which should be canvassed properly at trial.

Accordingly, the order sought in paragraph 2 is denied.

In view of this court’s ruling in favour of the order sought in paragraph 1, the order sought in paragraph 3 of the summons is justifiable. However, it should be amended to the effect that all manner of work, construction, building, logging including any new encroachments into Pahena Land, LR 673, whatsoever, should cease forthwith. There shall be a grace period of 30 days within which the Plaintiff may file any other applications it considers appropriate. If not, then thereafter, the Plaintiff shall remove all machinery and any other equipment or materials that it has and shall be restrained (inclusive of its servants or agents) from entering on to Pahena Land (LR 673).

I also point out here that it may be necessary to join Isabel Timber Company as a Second Defendant.

Costs in the cause.

A.R. PALMER
PUISNE JUDGE