The Plaintiff sues in his
representative capacity as chf the land-holding tribe, tbe, the KOQOATOVO
TRIBE. In the Statement
of Claim, the Plaintiff claims the KOQOATOVO TRIBE
is the rightful owner in custom of KOQOATOVO LAND. The First to Fifth
Defendants in contrast describe this land in their joint Defence as SOUTH
MAVARA LAND and claim it was owned by the Mavara
Tribe of which the Second
to Fourth Defendants were either chiefs or representatives. On 24 July 1992,
interim orders
were obtained from this Court restraining the First Defendant
from carrying out its logging operation on the said land and
from paying out
royalty payments to the Second to Fourth Defendants. These orders were
continued in a judgment delivered
on 19 October 1992, after an inter partes
hearing. One of the serious issues identified by Court between the parties
was the question of rightful ownership in custom over Koqoatovo land.
Fortunately for the parties, they had been able to pursue
that matter before
the appropriate courts to conclusion; starting off with a chief's hearing at
Voza Village between
7 and 9 May 1992. The Chiefs decision was not accepted
by the Plaintiff and so the matter was continued before the Local Court.
The
said court gave judgment in favour of the Plaintiff on 7 April 1994 (see
Document Number 3 in bundle marked 'SMW1' annexed to affidavit of Steve
Macpherson Watt filed
5th July 1999).
This was not accepted by the Defendants and the matter taken further on
appeal to the Customary Land Appeal Court and
finally to the High Court. On
each occasion the appeals were dismissed (see Documents numbered 2 and 1
respectively in the same bundle marked 'SMW1"). The issue of ownership
and boundaries of Koqoatovo Land between the Plaintiff and the Second to
Fourth Defendants accordingly,
had been finally determined in favour of the
Plaintiff. The Plaintiff now comes to Court by way of Notice of Motion,
asking this Court to make determination on the issues raised in its claim
for trespass and conversion against the Defendants.
It seeks orders inter
alia, to have the First to Fifth Defendant's Defences struck out, as failing
to disclose a reasonable
cause of action, and/or, in the alternative, that
they are both frivolous and vexatious.
The Plaintiff's claims in
respass and conversion against the First Defendant are set set out in
paragraphs 3, 5, and 11 of
the Statement of Claim. The First Defendants
Defence is premised essentially on the submission that the actions of the
First Defendant were carried out under cover of a validly issued licence
under section 5 of the Forest Resources and Timber Utilisation Act [Cap. 40]
(hereinafter referred to as "the FRTUA') and that accordingly
no claim for trespass or conversion could validly be made against it until
the issue of ownership
had been determined once and for all. In other words,
the First Defendant argues the issue of a valid licence justified the
entry
and removal of logs in the interim period pending determination of the issue
of ownership of Koqoatovo Land.
THE EFFECT OF A LICENCE
efence raised by the First
Defendant raises the question, what is the effect of the lthe licence issued.
Section 40 of
the FRTUA actually answers this question in very plain terms:
“No licence or permit issued under this Act shall convey or be construed to convey any any night which the
Government doer
not have and in particular no such licence shall convey nor
be construed to convey any right or authority to enter any private
land nor
take any action with respect to anything without the author of the owner of
that land or thing.”
The crucial wordsh
determine the effect of a licence fall on the words “without the
authorityority of the owner of that land or thing”. The FRTUA recognises that
a licence validly issued, however issued, under the said Act, can convey no
right or authority
whatsoever, without the authority of the owner of the
said customary land. In the particular circumstances of this case, the
licence issued in favour of the First Defendant could not have conferred
any
rights without the authority of the Plaintiff as owner of Koqoatovo land.
That no authority or right had been issued
is not in dispute.
THE LAW IN THE FRTUA?
The warning signs were first
echoed formally by Commissioner Crome as far as 1982 in Fugui & amp;
Another v. Solmac Construction Company Limited and Others (1982) SILR
100. At page 105, the learned Commissioner pointed out as follows:
“The essence of the
procedure lg to the granting of a lice licence is to ensure that those
persons who in custom are entitled
to the timber rights, as defined in the
Act, are traced and their consent given to the operation proposed by an
Applicant
for a licence.
… In order to trace the
customary owners who are entitled to enter into any agreement relating to
the granting of timber
rights an elaborate procedure must be followed, all
clearly laid down in the Act,…”
The learned Commissioner then
set out what the procedure to be followed was. At p106 and 107, the
lear learned Commissioner
described what the problem was with this piece of
legislation.
“All a licence amounts to,
it seems, is a defence to a prosecutionution under s. 4(1) and the possibility
that the true
customary owners of timber rights and any persons by whose
consent the exploitation of those rights can be sold or dealt in,
have been
traced as a result of the lengthy procedures under the Act. No guarantee is
given that the contracting customary
owners are the true owners.”
n lie the problem. The
First Defendant at the most, could only hope that the true cuse customary
landowners would be identified
after the elaborate procedure had been
followed. If not, then the “hapless applicant” (to borrow the term used
by Commissioner Crome) is no better off than when he started out. The
licence's worth to that extent is very little. It does not guarantee title
to the land, or confer any rights to log against the true landowners. It
confers no immunity from civil suits for trespass
and conversion taken out
by the true landowner. In the circumstances of this case, the First
Defendant had not been given
authority by the true landowner to enter
Koqoatovo Land and carry out logging operations.
TRESPASS
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Has trespass been proven to the
required standard? In Salmond on TorI Edition pages 38/39 the lthe learned
Author states:
“If the entry is
intentionalis actionable even though made under an inevitable mistake take
of law or fact and even though
the Defendant honestly believed that the land
was his own or that he had a right of entry on it. There is no foundation
for the assumption that a man cannot be a trespasser unless he knows he is
one.”
It cannot be denied entry in
this case was iional. It was purportedly made pursuant to the licence
issued by the
Commissioner of Forest Resources, under section 5 of the FRTUA
after an approved agreement had been made purportedly with the
true
landowners of Koqoatovo Land. It has since transpired that the true
landowner is the Koqoatovo Tribe represented
by the Plaintiff. The entry
therefore was never authorised and amounts to a trespass by the First
Defendant into the
land of the Plaintiff.
CLAIM TRESPASS AGAINST THE
SECOND TO FOURTH DEFENDANTS
This claim is based essentially
on the submissiat the Second to Fourth Defendants were persons directly
ly
involved
in the execution of the timber rights agreement which authorised
the entry of the First Defendant into the Plaintiff’s land.
To that extent I
am satisfied the Second to Fourth Defendants are as much liable as the First
Defendant for the entry
into the Plaintiff’s land (see Salmond on Torts
(ibid) page 38).
CONVERSION
The Plaintiff also claims
damages against the First to Fourfendants for the unlawful cful conversion
of its timber growing
on the said land. In Salmond on Torts (ibid) the
learned Author defines conversion as:
“…an act (or complex series
of acts) of wilful interfe, without lawful justificaification, with any
chattel in a manner
inconsistent with the right of another, whereby that
other is deprived of the use and possession of it.”
In thiticular instance, it
is not in dispute there had been an act of wilful interference wnce without
lawful justification.
If anything, the defence raised was a claim of right.
Unfortunately that claim of right had been proven to be wrongful. At
page
106 of Salmond on Torts (ibid), the learned Author pointed out:
“Although a conon is
necessarily an intentional wrong in the sense anse already explained, it need not
be knowingly wrongful.
A mistake of law or fact is no defence to anyone who
intentionally interferes with a chattel in a manner inconsistent with
the
right of another. He does so suo periculo and takes the risk of the
existence of a sufficient lawful justification
for the act; and if it turns
out that there is no justification, he is just as responsible in an action
of conversion
as if he had fraudulently misappropriated the property.”
In the facts of this case, it
cannot be denied thed been a dealing with the property (trees) of the
Pla Plaintiff which
is inconsistent to his rights of ownership. The fact it had
been done purportedly under cover of a valid licence and timber
rights
agreement is no defence.
The validity of the timber
licence issued inect of Koqoatovo Land must surely be in doubt after
t the ownership issue
had been finally determined in favour of the Plaintiff.
The approved agreement obtained by the First Defendant turns out to
be a
worthless piece of document after all. In my respectful view a declaration
must issue to the effect that the said
licence is invalid. The Commissioner
of Forest Resources cannot be satisfied in the circumstances of this case,
the approved
agreement had been obtained from the rightful owners in custom
over Koqoatovo Land.
CONCLUSION
I am satisfied the following
rders should be made.
1. &nbbsp;& &nsp; KEsp;KE OUT
DEFENCEHEF THEF THE FIRST TO FIFTH DEFENDANTS AS FAILING TO DISCLOSE ANY
REASONABLE CAUSE
OF ACTION.
2. &nnsp;& Esp;R JTEGEJUDGEMENGEMENT
IN FAVOUR OF THE PLAINTIFF AS &nnbsp;; &nsp; &nsp; &&nbp;;
Wb:
(a) &nbp; GRANT
PERT INJUNCTIONCTION RESTRAINING THE FIRST DEFENDANT, ITS SERVANTS AND
AGENTS FROM ENTERING UPON
THE SAID LAND.
lass=ormalle="m-left0pt; n-top: 1;p: 1; marg margin-boin-bottom:ttom: 1">
1">
(b) p;&nbbsp; Osp; ORp; ORp; ORDER THE
FIRST DEFENDANT TO PAY ANY OUTSTANDING ROYALTIES TO THE PLAINTIFF ON BEHALF
OF HIS TRIBE.
(c) & Tsp;FIRE ,
T SECOND, OND, THIRD AND FOURTH DEFENDANTS JOINTLY AND SEVERALLY TO PROVIDE AN
ACCOUNT OF ALL TIMBER
REMOVED FROM KOQOATOVO LAND.
(d) &nbssp;&nTsp; IRE FIRST,
T,
SECOND, THIRD, AND THE DEFENDANTS AND SEVERALLY TO PROVIDE AN ACCOUNT OF ALL
ROYALTIES
PAID TO AND RECEIVED BY THE SECOND URTH DANTSn>
(e) & THE FIRST
DEFENDANT TONT TO PROVIDE AN ACCOUNT OF ALL TAXES OR LEVIES PAID TO THE SOLOMON
ISLANDS GOVERNMENT
ARISING FROM TIMBER REMOVED FROM THE SAID LAND.
(f) &nbssp;&nnbsp; Dsp; Dsp; DAp; DAMAGES FOR
TRESPASS AGAINST THE FIRST TO FOURTH DEFENDANTS JOINTLY SEVERALLY, TO BE
REASSESSED.
(g) p; DsMAGES FOR
OR
OR
UNLAWFUL CONVERSION AGAINST THE FIRST TO DEFENDANTS JOINT SEVERALLY, TO BE
REASSESSED.
/p>
(h) &nnbsp;; DECLARE TARE TARE TIMBER
LICENCE ISSUED IN RESPECT OF KOQOATOVO LAND TO BE INVALID.
3. &nbssp; &nsp; THE COSTS OF T E
PLA PLAINTIFF TO BE BORNE BY THE FIRST TO FOURTH
DEFENDANTS JOINTLY AND
EVERA/span
THE COURT
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