Leua v Kalena Timber Company Ltd [1999] SBHC 13; HC-CC 202 of 1998 (18 February 1999)

HIGH COURT OOMON ISLANDS

Civil Case No. 202 of 1998

FREDA NUMA LEUA

v

K TIMBER CO. LTD

NATHAN KERA

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High Court of Solomon Islands Before: Palmer J.

Civil Case No: 202 of 1998

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 11^th February 1999

Judgment: 18^th February 1999

dclyffe for the Applicant / First Defendant

G. Suri for the Respondent/ Plaintiff

PALMER J.: This is an application by suby summons filed on 10^th November 1998 for an order to strike out the Plaintiff’s claim on the grounds that the Plaintiff lacked standing as she was not a party to the 1996 Timber Rights Agreement.

THE STATEMENT OF CLAIM:

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The Plai (Freda Numa Leua) claims she is the owner of customary land stretching from Mare Mare Ibiburu to Ngadoidaka (also known as “Mare Point”) situated on New Georgia Island, Western Province. She claims exclusive rights to the said land.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The significance of Mare the Point lies in the fact it was and is the site of the First Defendant’s log pond. From 29^th March 1984 when First and Second Defendants signed the Timber Rights Agreement giving the right to the First Defendant to acquire timber rights within the concession area, the said area or part of it, had been used for the period of ten years (to 1^st August 1994) without dispute, as the First Defendant’s log pond.

Pursuant to that timber rights agreement the Commissioner of Forests had issued a felling licence to the first Defendant which expired on 1^st August 1994 (see Exhibit “A” annexed to the affidavit of Michael Lam Filed on 10^th November 1998). On 22^nd April 1996, that timber rights agreement was renewed. Up until time of renewal of that timber rights agreement, no claim or objection was raised in respect of Mare log pond. Neither Pegi Silion (deceased) nor the Plaintiff sought to assert their rights and claim royalty and in a dilemma. Who should it deal with regarding the use of the log pond; the Plaintiff or the Saikile Council of Chiefs. By letter dated 14^th October 1997 (Exhibit “E” attached to the affidavit of Michael Lam riled 10^th November 1998) Chief Nathan Kera assured the Company the area of land claimed by the Plaintiff did not include the log pond. On 28^th March 1998, the Company entered into a lease agreement with the Saikile Council of Chiefs for the use of the log pond (see Exhibit “C” annexed to the affidavit of Michael Lam riled 10^th November 1998).

THE SHIP CLAIM OF THE PLAINTIFF:

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiff’s claim is derived by customary inheritance from her ded mother Pegi Silion. She She claims the land was given to her mother by the Second Defendant (see paragraphs 3 and 4 of the Amended Statement of Claim Filed 26th January 1999). It appears she would also be relying on a written document signed by Chief Nathan Kera (see Exhibit “D” in the affidavit of Michael Lam riled 10^th November 1998) in support of her claim that Mare Point was owned by Pegi Silion (deceased).

That document however, has been visly attacked by Chief Nathan Kera as incorrect in his affidaffidavit filed 27^th November 1998 (see also affidavits of Harold Teu, Peter Teu, and Haggai Keraeke filed on the same date). The significance of that statement nevertheless, would seem to lie in the fact that she would be arguing it manifests a right or interest in the said Mare Point which is arguable or triable.

This leads to the next question whether this is sufficient to demate an interest in the said said land and whether the Plaintiff would have a potential claim against the Second Defendant in custom for ownership rights over Mare Point? Going on the limited evidence before me, it does appear there may possibly be a claim. However, it would be dependent on what evidence there was in respect of the rights acquired by Pegi Silion and the area of the land which was in fact given to her by Chief Nathan Kera or the Saikile Council of Chiefs. Note in the period from 1984 to January of 1997 (some 13 years), there appears to have been no claim whatsoever for rent or royalty by Pegi Silion over Mare Point. The claim for rent appears to have been a recent one. Even when the timber rights agreement came up for renewal in 1996, neither Pegi Silion nor the Plaintiff raised any objections. At the same time she was neither consulted by the Saikile Council of Chiefs over the use of the log pond. That could be construed as indicating something

contrary to what the Plaintiff claims. If Pegi Silion was recognised as the exclusive owner of Mare Point, she should have been notified about it.

THE TIMBER RIGHTS AGREEMENT OF 1996:

It is pertinent to identify the legal status of this agreement. Were the parties entitled to enter into a new timber rights agreement? What happened to the 1984 Timber Rights Agreement after its expiry in 1994? Should the Company have been required to go through the same process it had undergone ten years earlier in acquiring timber rights?

In my respectful view it would be nonsensical to require the Company go through the same process again over exactly the same land areas it had acquired timber rights over in 1984. The issue over identification of the landowners (persons) lawfully entitled to grant timber rights over the said area of land had already been determined in 1984 by the Roviana Area Council. (See and compare the descriptions of the land areas referred to in both agreements). For instance, the headings of both agreements make reference to the same areas of land. I quote:

(1984 Agrt)

“Logging Agreement.

(1996 Agreement)

It is pertinent also to note e 1996 Agreement made specific reference to the determinatiinations of the Roviana Area Council in 1984 in its preamble. I quote:

ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “THIS AGREEMENT is made this 22^nd day of April 1996

BETWEEN KALENA TIMBER COMPANY LIMITED of P O Box 201, Honiara (referred to in this agreement as the “Company”) of the one part

AND THE REPRESENTATIVES OR TRUSTEES OF THDOWNERS of Kalena Land in L in Lots 9 and 12 of LR 529 and land immediately west of Lots 9 and 12 extending to Rorosi River in Saikile, New Georgia who had been identified by the Roviana Area Council in 1984 as the persons entitled to grant timber rights in the said lands and whose signatures are set out hereunder (referred to in this agreement as the “Landowners”) of the other part.” [Emphasis added]

The descriptions referred to above show quite clearly the new agreement entered ired into in 1996 was in respect of the same land areas over which timber rights had been acquired in 1984. There is nothing in the Statement of Claim, or in any affidavit evidence, or submissions of learned Counsel for the Plaintiff, to suggest that the 1996 Agreement entered into was in respect of any new areas of land and thereby requiring the whole procedure set out in sections 7 and 8 of the Forest Resources and Timber Utilisation Act 19 (Cap. 40) to be re-activated. It is not an issue with the First Defendant that the procedure in sections 7 and 8 were not complied with. It was never needed. There never was any need for any timber rights hearing apart from the one in 1984 to be held. The issue was not the identification of persons entitled to grant timber rights, but whether there should be a renewal of the 1984 Agreement.

Indirectly, this disposes of the argument of the Plainregarding breach of any stay statutory rights she might have under the Forest Resources and Timber Utilisation Act (Cap. 40). There was never any need to comply with sections 7 and 8 of the said Act as the determinations had already been done by the Roviana Area Council in 1984 in respect of the same areas of land.

INTEREST IN THE AGREEMEspan>

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ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The comments of the Court of Appeal in the recent case of Gandly Simbe v. East Choiseul Area Council and Others, CAC No. 8 of 1997judgment delivered on 9^th February 1999 are quite pertinent to this case. I quote at page 15:

“For that, he must begin by showing an arguably sufficient interest to entitle him at trial to challenge the validity of the agreement. Speaking generally, the validity of a contract may be impugned only by a person who is a party to it. A stranger is not ordinarily entitled to intervene in or challenge the contractual arrangements of others unless he or she is directly affected by them: cf. Amon v. Raphael Tuck & Sons [1956] 1 Q.B. 357. It is here that the problems confronting the plaintiff make their presence felt. Possession of land in the area might well have amounted to a sufficient interest to invest him with standing to challenge the validity of the agreement, but it is conceded that there is no evidence that he or those he claims to represent are in possession of any of the land claimed by him on behalf of the Dali Tribe. Ownership of the land or an interest in it would probably be enough; but the determination of the Area Council was that, for the purpose of entering into a timber rights agreement, the plaintiff and the Dali people had no rights of ownership or interest in the subject land.”

I facts available to this court in this case, it is clear the Plaintiff did not have pave possession; it couldn’t have been if the log pond had been used and occupied by the First Defendant. On the question of ownership or interest, the least conceded by the Second Defendant was that the area of land given to Pegi Silion lie well outside of the Mare log pond area.

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> If I am to take into account Exhibit “D” (see affidavit of Michael Lam) (which even in its present stage is highly contested) the most that can be said is that there is an arguable matter regarding ownership of Mare Point. That claim of ownership however in my respectful view arose well after the 1996 timber rights agreement had been executed by the First and Second Defendants. As well the claim is confined only to Mare Point, not the whole area covered by the timber rights agreement. As pointed out also, there had been no suggestion that Pegi Silion during her lifetime had ever sought to assert any rights she might have had over the log pond area. If anything therefore, her claim should be directed solely against the Second Defendant. This must mean whatever interest she might have, though arguable, is not sufficient for purposes of investing her with standing to challenge the validity of the agreement. The appropriate forum to address her grievances or claims would be under the Local Courts Act (Cap. 19).

th January 1999 that her rights if anything, ultimately originate from the Second Defendant. It would be relevant therefore for the appropriate body to address as well, the situation in custom where the original title holder denies giving in the first place the area the Plaintiff alleges was given, and whether there may be reserve rights in custom which the original title holder may be able to exercise in such circumstances to have the matter corrected.

The answer to the question therefore whether the Plaintiff had standing to challenge the validity of the 1996 Agreement in my respectful view must be answered in the negative.

ORDERS OF THE COURT. span>

1. STRIKE OUT THE PLAINTIFF’S CLAIM AS ST THE FIRST DEFENDANT.

2. THE PLAINTIFF TO BEAR THE COSTS OF THE FIRST DEFENDANT IN THIS APPLICATION.

THE COURT.