Dick v North New Georgia Timber Corporation [1995] SBHC 85; HC-CC 313 of 1995 (30 November 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 313 of 1995

ERIC DICK AND ALICK DENNIE
(AS REPRESENTATIVES OF THE GERASI TRIBAL MEMBERS
RESIDING ON RANOGGA)

V.

NORTH NEW GEORGIA TIMBER CORPORATION
KIKIBOY LASI
KIKIBOY LASI II
GORDON RENISI
OVAN KEVORO
SAEMON PULE

(PALMER J.)

Hearing: 29 November 1995
Ruling: 30 November 1995

A. Nori for the Plaintiffs
P. Tegavota for the Defendants

PALMER J: The Defendants seek by summons filed on 7 November 1995 to have the Plaintiff’s Statement of Claim struck out on the ground that it discloses no reasonable cause of action against the Defendants.

The Statement of Claim states inter alia that the First Defendant holds timber rights over Gerasi Land, North New Georgia, by virtue of the provisions of the North New Georgia Timber Corporation Act, and that the 2nd to the 6th Defendants are directors in the 1st Defendant. At paragraph 4 of the Statement of Claim it is alleged that the Plaintiff’s tribal group are part of the Gerasi Land and that they have rights and interests in the natural resources within the area. In his submissions, Mr Nori argues that the Plaintiffs therefore have a right to a share in the distribution of profits paid out to their Tribal Chiefs of Gerasi Land.

At paragraph 7 of the Statement of Claim, it is stated that the 1st Defendant had paid out to the Gerasi Tribal members, but excluding the group represented by the Plaintiffs, a sum in excess of SBD800,000.00. It is claimed at paragraph 8 of the Statement of Claim that none of the Plaintiffs have been paid any share in those profits. They further assert at paragraphs 9 and 10 that they will not be paid any shares of any further profits for distribution, which they say currently stands at SBD2.7 million and accordingly seeks a number of orders, including an injunction against the 1st Defendant from disbursing any funds in respect of Gerasi Land.

The powers of distribution of profits of the Defendants are set out clearly in the Third Schedule to the North New Georgia Timber Corporation Act. Paragraph 1(1) of Part 1 of the Schedule as amended, states:

"Each tribe whose customary land is within the area of the New Georgia lands shall inform the Board of Directors of the names of the Chiefs of that tribe who have been authorised to receive that tribe’s share of the net profits of the Corporation for distribution amongst those members of that tribe having the right to live in the area in accordance with custom."

Subparagraph 1(3) reads:

"The revenue available for distribution shall be distributed to the Tribal Chiefs on behalf of the members of each tribe ......"

What can be gleaned from the above provisions is that, it is the tribe which advises the Board of Directors of the names of its Chiefs, who have been authorised to receive that tribe’s share of the net profits. The first crucial question that needs to be addressed is whether the Plaintiffs are members of the Gerasi Tribe. That is a matter between the Plaintiffs and the Chiefs of Gerasi to determine. If it is determined in favour of the Plaintiffs that they are members of the tribe of Gerasi, then the second consideration would be to decide whether they would be entitled to a share in the distribution of the net profits as "members of that tribe having the right to live in the area in accordance with custom". Again this second issue is a matter between the tribal chiefs and the Plaintiffs to sort out amongst themselves, and in the appropriate courts, if no settlement can be amicably reached.

Mr Tegavota, of Counsel for the defendants is correct therefore in his submissions that there is no reasonable cause of action against the current defendants. However, there is a fine distinction in the order sought that the claim be struck out as unreasonable or disclosing no reasonable cause of action on one hand, whilst on the other hand, there is a reasonable cause of action against sufficiently identifiable persons, but not the current defendants and that in reality the writ has been misdirected to a certain extent.

In my respectful view this is more of a case for amendment so that the correct parties can be named, rather than one for striking off.

On the question of the continuation of the orders of the 18th October, 1995, it is clear in my mind that the proceeds or the profits available for distribution in favour of the Gerasi Tribe should continue to be subject to restraining orders pending determination of the triable issues raised in the Statement of Claim of the Plaintiff. Paragraph 1 of that Order accordingly should be varied so that the net profits due to be paid out by North New Georgia Timber Corporation or the Board of Directors in favour of the Tribal Chief(s) of the Gerasi Tribe or the landholding tribes over Gerasi Land, should continue to be attached and paid into an Interest Bearing Deposit Account at the National Bank of Solomon islands Ltd in a Solicitors Trust account in the name of the Plaintiff’s Solicitor until further orders of this Court.

Mr Nori’s concern is that if the monies are paid out to the Tribal Chiefs over Gerasi Land, then his clients may lose out. However, if those Tribal Chiefs are subject to restraining orders as well then the money cannot be dispersed pending determination of the issues before this Court.

ORDERS OF THE COURT

1. The Plaintiff is given leave to amend the Writ and Statement of Claim where necessary, to be filed within 14 days from today;
   
2. The current Defendants names to be deleted and replaced by the names of the Tribal Chiefs of Gerasi;
   
3. The net profits for distribution in favour of Gerasi Tribe to be subject to restraining orders and to be paid into a Solicitors Trust Account in an IBD Account, in the name of Plaintiff’s Counsel pending trial or further orders of this Court.
   
4. An undertaking to be provided by the current defendants to pay that money into the Solicitor’s Trust Account;
   
5. A further undertaking to be provided to supply the list of names of the Tribal Chiefs of Gerasi to whom payment of the net profits for distribution had been made and how much, in 7 days;
   
6. Costs of the Defendants to be borne by the Plaintiffs.
   

A.R. PALMER
JUDGE