Bangakujuku v Eagon Resources Development Company (SI) Ltd [2000] SBHC 76; HCSI-CC 193 of 1998 (8 February 2000)

CC 193/ 98 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 193 of 1998

BENAE BANGAKUJUKU

V

EAGON RESOURCES DEVELOPMENT COMPANY (SI) LIMITED AND OTRS.

High Court of Solomon Islands
(Palmer J.)

Civil Case Number 193 of 1998

Hearing: 28 October, 8 December 1999
Judgment: 8 February 2000

S.Wati for the Plaintiff
Sol-Law for the Defendants

PALMER J.: On 10th January 1997, this Court made orders in Civil Case 347 of 1996, to the effect inter alia, that:

“(2) The First Plaintiff (First Defendants in this Case) his servants or agents are restrained from entering Sisiro land for purposes of felling and removing any logs, save for removing logs already felled prior to the date of this order between the area of Ligaware Stream and Lokabelo Stream.

(3) The proceeds of sale of those logs shall be paid into a joint Solicitors Trust Account on interest bearing terms.” [Words in brackets added]

On 12 October 1998, application was made ex parte by the Plaintiff for leave to institute proceedings against the Manager of the First Defendant’s Choiseul Bay Camp, for committal to prison for contempt of Court, for breaches of orders 2 and 3 above. The matter eventually came for hearing on 28 October 1999 and completed after adjournment on 12 December 1999.

The Plaintiff alleged there had been two instances of breaches of the orders of the Court. The first instance occurred on 14th January 1997, shortly after restraining orders were issued against the First Defendant. It was alleged the First Defendant sent its employees into Sisiro Land, more particularly the area between Lokabelo Stream and Ligaware Stream and felled a number of trees contrary to the orders of this Court dated 10th January 1997. The second incident was alleged to have occurred sometimes between 15 and 16 March 1998 with a number of trees also alleged to have been felled contrary to the orders of this Court.

The First Defendant denies these allegations. Regarding the first incident it claims its employees had entered Sisiro Land for purposes of cross-cutting and trimming of logs only; not to fell trees. Regarding the second incident it argues this was done pursuant to timber rights agreement it had obtained over said land.

The Plaintiff produced two other witnesses apart from himself in support of his allegations; Scott Dereveke and Stephen Tanuqu. Both gave eye witness accounts of the actual felling of trees on 14th January 1997. Scott Dereveke was very sure of himself before this Court that on arrival at the site he personally witnessed Francis Qeqo (chainsaw operator of the First Defendant) felling a tree. He identified the tree as a “gema tree” (akwa pometia). In cross-examination he was unshaken. He claimed a total of 38 trees were felled that day, based on his observations the trees had fresh cut marks on them and that they had not been trimmed. He also stated he had gone to investigate the activities of the First Defendant at that particular spot that day because he had heard from the direction of his garden, the sound of chain saws and trees falling. This would be consistent with his claim as to the number of trees felled.

Stephen Tanuqu, (Plaintiff’s third witness) gave similar evidence. He confirmed actually witnessing three trees being cut on arrival and felled. The remainder he acknowledged had been felled on arrival but disputes that this might have been done on an earlier date. He was also sure of himself that those trees had only been felled earlier that day. He based his conclusions on the fact those trees had fresh cuts on them and had not been trimmed. The Plaintiff himself gave evidence that the area where those trees were cut on the 14th of January 1997 was a new area. It was not touched by the First Defendant when they first entered his land towards November 1997. The area where they had been doing logging in November was at a different spot. Since chasing them away they had not entered his area until his departure on 13th December 1997. As far as he was aware, no fresh felling of trees occurred in the month of December. He claims those trees could only have been felled on the day alleged by his two witnesses and not at an earlier date or time. He also visited the site about a week later and formed the view those trees were recently felled and not about a month or so earlier as claimed by the First Defendant.

The First Defendant called two witnesses in support of its case; Albert Berdera, Production Manager at Moli Camp and Francis Qeqo, a chainsaw operator; as well as relying on the affidavit of Reynaldo Datu filed 8 December 1999. Albert Berdera stated on oath, workers were dropped off at the site that morning of the 14th January 1997, for the specific purpose of cross-cutting and trimming logs for haulage and removal to the log camps. He said he was aware of the orders of the Court and so had specifically told his workers not to fell any trees. He visited the site on the following day (15th January 1997) and formed the view the trees were not freshly cut. He claims they had been felled at an earlier date. Unfortunately, this witness did not go on to identify the date or time those logs may have been felled and by whom. The most he could say was that according to his observations they had been felled sometime much earlier than the 14th January 1997. Surely as Production Manager he should be able to say when felling took place and who was responsible and have those witnesses called. If he did not know, I am sure there must be someone that would know and could have been called to give evidence. This was job done by the First Defendant and its Camp Managers ought to know. That would have added a lot of strength and credibility to the First Defendant’s Case. That was not done. Why? Is it because those trees might well have been felled on the 14th? Sometimes this kind of glaring omissions does not help a party’s case. During cross-examination, learned Counsel Mr. Kama for the First Defendant repeatedly put to Plaintiff’s witnesses that those trees had been felled at an earlier date. Apart however from the two witnesses called who denied that the trees were felled on the 14th January, no witnesses were called to testify as to the actual dates those trees were felled and by whom, or which chainsaw gang was involved. Albert Berdera did not give any details and neither the second witness, Francis Qeqo.

The second witness called, Francis Qeqo, apart from denying that he was responsible for the felling of those trees, did not know who had felled those trees at an earlier date, as he had claimed in his evidence. Francis Qeqo did confirm having received instructions from Albert Berdera not to fell trees; only to cross-cut and trim logs felled prior to imposition of restraining orders.

I have listened carefully and observed all witnesses on the witness box. All sounded so genuine, sincere and truthful before this Court and it is not an easy task to determine where the truth lies. It is obvious to me that someone is deliberately lying through his teeth to this Court. That is wrong, a sin and a crime. The witnesses who have come to give evidence to this Court must understand that lying under oath is a very serious matter and bears grave consequences.

There have been some inconsistencies noted in evidence before this Court which require some comment. In the affidavit of Scott Dereveke filed 12 October 1998 at paragraph 5, he deposes that there was a pile of approximately 33 logs lying in a clearing. These he described as consisting of different species of trees; Aqua, Bune and Lengara. In his evidence before this Court however, he states those trees were lying in a big area, all over the place. Stephen Tanuqu also deposed to that fact in his affidavit filed on 12 October 1998 at paragraph 4. In his evidence before this Court, he states they were lying down where they had been felled in one area. Some were lying on top of others. He states they had not been trimmed either. The point sought to be highlighted in this inconsistency was that if there was a pile of logs as deposed to in the affidavit of the Plaintiff’s witnesses, then most likely they would have been cut at an earlier time, trimmed and then stacked together. This would be more consistent with the evidence of the First Defendant’s witnesses than that of the Plaintiffs. No clear explanation seems to have been given for this discrepancy though I accept the evidence of Scott and Stephen would go to some extent perhaps to explaining what was meant by that pile of logs in a clearing. Francis Qeqo in his affidavit evidence did confirm the existence of the pile of logs but in his evidence on oath before this Court, nothing further was added, whether those logs had been cross-cut and trimmed or to explain what was meant by that pile of logs in a clearing. Albert Berdera was also not asked about this. Any significance to be attached to this discrepancy accordingly had been greatly minimised.

Another inconsistency but this time on the side of the First Defendants involved the admission of Francis Qeqo in his affidavit at paragraph 10, that Scott Dereveke did hold up a copy of the Court’s decision when he arrived at the site on 14 January 1997. In his evidence on oath before this Court however, he denied seeing Scott Dereveke holding any Court decision in his hand. Instead he deposed Dereveke held an axe and was very aggressive and abusive. He further deposed Dereveke struck the chainsaw he had with the axe and then made an attempt to swing the axe at him. He immediately cleared off for his safety, he claims. This witness when confronted by this discrepancy clearly appeared shaken and confused. Apart from that he maintained his version that when Scott Dereveke arrived at the scene he was armed with an axe and sought to strike him with it. This was strongly denied by Scott.

Another matter which can be raised concerning the evidence of Francis Qeqo is that if what he says is true, then there would be evidence of a dent or some mark on the chainsaw that had been struck by Scott. Production of that chainsaw perhaps would have assisted the Court as to who might have been telling the truth. No orders were sought by the First Defendant for the production of that chainsaw though it was clearly admitted on evidence before this Court that the chainsaw was in the possession of the Plaintiff.

Apart from these inconsistencies, there is little to assist the Court come to a clear conclusion as to who is telling the truth. It is possible there are mixtures of truth and lies in the evidence of the witnesses called in this Case.

When the evidence is weighed on the scale of proof beyond reasonable doubt, the test this Court is required to apply, I find that the scale tips in favour of the Plaintiff. I find the evidence of the Plaintiff and his witnesses to be more consistent, truthful and credible than that of the First Defendant’s witnesses. The evidence of the First Defendant’s witnesses on the other hand tend to be evasive and vague. They denied felling the trees on 14th January 1997, but fell short of saying or identifying who did it and calling those persons to give evidence before this Court. The First Defendant is a major logging entity in the country and therefore should not have found it too difficult to find out for itself who were the persons who felled those trees and when and to produce them in Court as witnesses. I am satisfied beyond reasonable doubt at least three trees were felled on the 14th January 1997 and that accordingly a finding of guilty must be entered against the First Defendant’s Choiseul Bay Camp Manager.

The second allegation related to the incident of 16th March 1998 in which it was also alleged trees were felled contrary to the orders of this Court. This incident is not denied by the First Defendant (see affidavit of Reynaldo Datu filed 8 December 1999 paragraphs 4 and 5). Submissions of learned Counsel Mr. Kama for the First Defendant concentrate more on mitigating the effects of that breach, which more appropriately can be considered during sentence. I am satisfied it has been established beyond reasonable doubt the First Defendant felled trees in Sisiro Land on said dates, though it would appear to have been based on a mistaken belief which can be taken into account during sentence. I find also the Choiseul Bay Camp Manager guilty of contempt in respect of that second incident.

FINDING:

ENTER GUILTY VERDICTS AGAINST THE FIRST DEFENDANT’S CHOISEUL BAY CAMP MANAGER FOR CONTEMPT OF COURT IN RESPECT OF THE INCIDENTS WHICH OCCURRED ON 14TH JANUARY 1997 AND 15 MARCH 1998.

THE COURT