Idale v Golden Fountains (SI) Company Ltd [1996] SBHC 85; HCSI-CC 186 of 1996 (23 August 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.186 of 1996

NATHANIEL IDALE & OTHERS

-v-

GOLDEN FOUNTAINS (SI) COMPANY LIMITED
KALAHAKI TIMBER LIMITED

High Court of Solomon Islands
(Palmer J)
Civil Case No.186 of 1996

Hearing: 22nd August 1996
Ruling: 23rd August 1996

A. Nori for the First Plaintiffs
G. Suri for the Applicant/Second Plaintiff
A. Radelyffe for the Respondent/Defendants.

PALMER J: Ruling: There are two applications before this Court. One is an application by the First Plaintiffs for orders to restrain the Defendants, their servants and agents from felling any trees from within Talambi land until trial or further order. The other is an application by the Second Plaintiff, Success Company Limited, for orders to restrain the Defendants from removing and or selling the trees felled within Talambi land.

Learned Counsel for the First Plaintiffs, Mr Nori has advised the Court that he no longer wished to pursue his application as his clients had unbeknown to him entered into an access agreement with the Second Defendant, and secondly, that the Defendants are no longer felling any more trees within Talambi land.

It is the application of the Second Plaintiff that is of concern in this hearing. The subject-matter of this application and what is causing the dispute are the logs that had been felled and removed from Talambi land by the First and Second Defendants. What appears to have taken place was that, the Defendants were granted access through Talambi land to construct a road through to other concession areas in which the Defendants had a felling licence to carrying out logging on. I do note that the First Plaintiffs may be disputing that the Defendants have obtained permission to construct an access road, but that is not material at this hearing. In the process of constructing an access road, trees were felled and removed by the Defendants. It is not disputed that neither the Defendants nor the Second Plaintiff have any felling licence in respect of Talambi land, and therefore do not have any right to carry out any logging operations in that customary land.

The bone of contention relates to the question what should be done with those logs that had been felled and removed by the Defendants in the process of constructing an access road. This in turn raises the question of rights to or ownership of those logs that had been felled and removed. Bearing in mind that no valid timber rights agreement had been entered into with the landowners, over those logs, no timber rights accordingly had been transferred to or acquired by the Defendants or the Second Plaintiffs. This simply means that the right to or ownership of those logs remain vested in the landowners of Talambi land, and that accordingly they are the rightful persons to decide on what should be done to those logs. On this issue, the Plaintiffs assert that they are the representatives of the landowners and therefore entitled to dispose of those logs in the manner they choose; in this case, they assert that they have decided to dispose of those logs in favour of the Second Plaintiff. The Defendants on the other hand say that they have been authorised by the two legally recognised owners or representatives of the landowners of Talambi land to dispose of those logs.

The question on the competing claims of the Second Plaintiff and the Defendants and determining who has a better claim should be analysed more in the context as to who are the true landowners or the correct representatives of the Landowners who are entitled to dispose of the rights to those logs. This is the normal question posed in the timber rights hearings conducted before the Area Councils under the Forest Resources and Timber Utilization Act. I think it is not disputed that where in the peculiar circumstances of this case, the rights of ownership to those logs had not been transferred or acquired under the Forest Resources and Timber Utilization Act, then the question of disposal of those logs must remain ultimately with the Landowners or the correct representatives of those landowners. In this case, at least there are two groups of persons asserting that they are either the true landowners of Talambi land or the correct representatives of the true landowners.

Having carefully thought through the issues raised, I am satisfied that the appropriate course of action to take in the circumstances of this case, and that will be most fair and just to all the parties in this case, is to direct that those logs felled and removed from Talambi land be identified and set apart from the rest of the other logs, and to come under the restraining orders of this Court imposed forthwith. The Landowners (this includes the two identifiable groups asserting rights to or title to those logs so far and any other group of landowners), are then given thirty (30) days effective from today, to make up their minds as to what should be done with their logs; failing which, those logs are to be auctioned in the open market, and both the Second Plaintiff and the Defendants, and any other interested buyer will be entitled to bid for those logs, under the supervision of learned Counsels or as may be agreed to by Counsels. Whatever prices those logs are sold at, the Defendants shall be entitled to deduct whatever reasonable expenses they may have incurred in the felling, and removal of those logs to the log pond for storage. The Purchaser of those logs would then be entitled to dispose of those logs in whatsoever manner he or she or it may choose. The cleared proceeds are then to be paid into an interest bearing deposit account in the joint names of legal Counsels for the First Plaintiffs and the Defendants. That money can then safely remain in an interest bearing account whilst the landowners sort out in whatever manner they consider necessary as to which of them is entitled to the money or how it should be distributed.

Costs in the cause.

ALBERT R. PALMER
JUDGE