Kololeana Development Company Ltd v Amiki [2001] SBHC 158; HC-CC 083 of 1998 (28 December 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 83 of 1998

KOLOLEANA DEVELOPMENT CO LTD &
MEGA CORPORATION LIMITED

–v-

OLUPATU AMIKI & OTHERS

High Court of Solomon Islands
(Palmer ACJ)

Hearing: 9th November 2001
Judgment: 28th December 2001

A & A Legal Service for the Defendants
Crystal Lawyers for the First Plaintiff
Motis Pacific Lawyers for the Second Plaintiff

Palmer ACJ: This is an application of the Defendants by Summons filed 11th October 2001 seeking orders inter alia for judgment to be entered for the Defendants on their Counter-Claim filed 10th June 1998 under Order 14 rule 1 of the High Court (Civil Procedure) Rules (“the Rules”) on the belief that there is no defence to their Counter-Claim. Defendants rely on the affidavit of Olupatu Amiki filed 11th October 2001. Defendants rely on two grounds for their application:

(a) That the felling licence No. TIM 2/34 (“the Licence”) issued on 23rd August 1993 to the First Plaintiff was in respect of Blocks D and E on Babatana Land – Kolombangara Island. It did not cover the Defendants customary land on West Kohinggo Island.

(b) That the extension to the Licence to cover the Defendants customary land was done in the absence of a valid timber rights agreement with the landowners. It is therefore null and void as it failed to comply with the requirements set out in Part IIA of the Forest Resources and Timber Utilisation Act (Cap. 40).

Plaintiffs’ Claim

The first and second Plaintiffs filed Writ of Summons and Statement of Claim on 13th May 1998. The first Plaintiff claims it is the holder of a felling licence No. TIM 2/34 (“the Timber Licence”) issued by the Commissioner of Forests on 23rd August 1993 authorising the felling, extraction and sale of logs over Blocks “D” and “E” on Kolombangara Island. A copy of the Timber Licence is annexed as “Exhibit MB1” to the affidavit of Marvin Baekisapa filed 13th May 1998.

The first Plaintiff engaged the second Plaintiff under a Technology and Management Agreement signed 27th April 1994 to carry out the logging operation on Kolombangara Island as well as any other concession areas that may later be acquired by the First Plaintiff. At paragraph 6 of the Statement of Claim filed 13th May 1998 first Plaintiff claims a standard logging agreement was entered into with landowners of West Kohinggo represented by the first to 11th Defendants (“the Defendants”). The Licence was then extended in or about 18th April 1997 to cover West Kohinggo Island (see “Exhibit MB5” annexed to the affidavit of Marvin Baekisapa filed 13th May 1998). The Plaintiffs therefore argue they have valid right to enter the said customary land and fell logs.

Logging commenced on West Kohinggo in November 1997. A log pond was constructed at Ghalughalu together with a campsite for employees and storage for machines and equipment. On 30th January 1998, the first Defendant wrote purportedly on behalf of the Eapa, Gaso and Igolo tribes advising the second Plaintiff to cease operations on West Kohinggo with immediate effect (see Ex. MB7 annexed to the affidavit of Marvin Baekisapa filed 13th May 1998). As a result of this direct threat, Plaintiffs sought interim orders against the Defendants by summons filed 13th May 1998. This court granted interim orders on 15th May 1998. On 2nd June 1998, Defendants entered a memorandum of appearance. Statement of Defence and Counter-Claim was filed on 10th June 1998. Plaintiffs filed their reply and defence to the Defendant’s Defence and Counter-Claim on 2nd October 1998. On 23rd August 2000 the second Plaintiffs gave separate instructions to Motis Pacific Lawyers to represent them in the matter. They filed a Draft Amended Defence to the Counter-Claim on 28th September 2000 and the final draft Amended Defence on 10th October 2000.

On 10th December 1999 the Plaintiff’s Statement of Claim was struck out for want of prosecution. Their defence to the Counter-Claim of the Defendants was struck out on 19th July 2000. On 24th August 2000, further directions were given for the hearing of the Defendant’s Counter-Claim. The Plaintiffs however filed an application on 31st August 2000 to have the Orders of the Court dated 19th July 2000 set aside. This did not proceed as the parties eventually agreed on consent orders to have those Orders of 19th July 2000 set aside and giving leave to the Plaintiffs to file Amended Defence to the Counter-Claim of the Defendants.

The Summons filed 11th October 2001

The Summons filed 11th October 2001 sought orders to have judgment entered for the Defendants on their Counter-Claim under rule 1 of Order 14 of the High Court Rules. Unfortunately, the application is misconceived. Where a Statement of Claim and Defence to the Counter-Claim have been filed, any application for Judgment should not be made without first having the Statement of Claim and Defence struck out usually on the ground that they disclose no reasonable cause of action or are frivolous or vexatious (Order 27 rule 4). Sometimes they are considered together. Unfortunately, the Defendants have failed procedurally to do the right thing. To that extent it would not be proper for this court to consider the Summons filed on 11th October 2001 in the absence of any application to strike out the Plaintiff’s Statement of Claim and Defence to the Defendant’s Counter-Claim. The consequential orders sought in the Summons of the Defendants filed 11th October 2001, in fact proceed on that misconception that Judgment be entered on the basis that the Statement of Claim and Defence disclose no reasonable cause of action or defence on the merits. Unfortunately no application has been made to have them struck out under Order 27 rule 4 of the High Court Rules. The Summons accordingly is procedurally defective and cannot be proceeded with.

Defence to the Counter-Claim

I am satisfied as well however; that the first Plaintiff in particular has shown that it has defence on the merits to the Counter-Claim of the Defendants. The crucial evidence is contained in the affidavit of Marvin Baekisapa filed 9th November 2001 in which are exhibited important documents of the timber rights hearing held in respect of West Kohinggo customary land. Exhibit “MB2” reveals that a determination was made by the Roviana Area Council on 17th June 1993, in respect of West Kohinggo, (Galugalu/Madamadara). Persons identified to be entitled to grant timber rights were David Pati, Steward Evo, Bruce Pita, Silas Pati and Thompson Turueke. Exhibit “MB3” shows that an intended appeal by objectors to the determination was withdrawn under letter dated 29th September 1993. A timber rights agreement subsequently was entered into on 13th September 1996 and the licence extended on 18th April 1997. The Plaintiffs therefore have shown that they have a defence on the merits. The question whether the determination of the Roviana Area Council, the timber rights agreement or the extension of the Licence may be invalid or not are matters for determination at trial. The Summons filed on 11th October 2001 therefore has no basis and should also be dismissed under this ground. The matter should now proceed to trial expeditiously. Unless further directions are sought, the Plaintiffs should now apply to the Registrar to have this case listed for trial in the normal way.

Orders of the Court

1. Dismiss Summons of the Defendants with costs.
   
2. Plaintiffs to apply to have case listed for trial with Judges bundles in the normal way.
   

The Court.