MSL Import and Export Company Ltd v Madre [2001] SBHC 175; HCSI-CC 66 of 2001 (23 November 2001)

CC No 66, 01, HC

IN HE HIGH COURT OF SOLOMON ISLANDS

Civil case No 66 of 2001

M.S.L IMPORT AND EXPORT COMPANY LIMITED

-v-

DAVID MADRE

High Court of Solomon Islands
(Palmer ACJ)
Civil Case Number 66 of 2001

Hearing: 7th November 2001
Judgment: 23rd November 2001

A & H Lawyers (J. Hauirae) for the Applicant/Defendant
P.T. Legal Services for the Respondent/Plaintiff

PALMER ACJ: The Applicant/Defendant (hereinafter referred to as “the Defendant”) applies by Summons filed 28th August 2001 for the following orders:

“1. That the Licence to Fell Trees and Remove Timber (Licence No: A 1005) issued to the Plaintiff on the 8/3/01 is inconsistent with the provisions if the Forest Resources and Timber Utilisation Act and is therefore null and void

2. That the Licence to Fell Trees and Remove Timber, (Licence No: A 10028) issued to Barora Ite Forest Resource Development on the 14/11 /3/01 is inconsistent with the provisions of the Forest Resources and Timber Utilisation Act and is therefore null and void.

3. That the Timber Rights Agreement entered into between the Plaintiff and Central Barora Ite Land Holding Group on the 2/2/01 is null and void.

4. That the logging operation carried on the Central Barora Ite Island by the Plaintiff, its agent or contractors is illegal and must be ceased forthwith and the Plaintiff to export all round logs felled and the proceeds from such sale or part thereof, be paid into Court.”

Defendant brings this application under Order 27 rule 2 of the High Court (Civil Procedure) Rules, 1964 (hereinafter referred to as “the Rules”). He relies on his affidavits filed 18th June 2001, 28th August 2001 and 4th October 2001. Defendant seeks inter alia orders to invalidate the timber licences, (Licence No.: AI0005 issued on 8th March 2001 and Licence No.: AI0028 issued on 14th March 2001 issued to the Plaintiff and Barora Ite Forest Resources Development respectively) and the timber rights agreement (“the TRA”) executed on 21st February 2001. Learned Counsel Mr. John Hauirae for the Defendant submits, that by Legal Notice No. 34/97 all area councils within the country were suspended with effect from 17th March 1998. By Legal Notice No. 46/2001, published on 23rd March 2001, the responsibility vested in the area councils under sections 7 and 8 of the Forest Resources and Timber Utilisation Act (Cap. 40) (hereinafter referred to as “the Forest Act”) was transferred to the appropriate Provincial Government. This meant in the period 17th March 1998 to 23rd March 2001 no applications for timber rights could have been processed under the Forest Act. No timber rights in turn could have been obtained under the Forest Act and subsequently the Commissioner of Forests could not have issued any valid licences in that period. The timber licences issued and timber agreements signed therefore could not have been valid and should be struck down by the Court.

Submissions of the Respondent/Plaintiff

The Plaintiff on the other hand raises a threshold issue on locus standi, alleging the Defendant does not have the necessary locus standi to launch this attack and therefore its orders and counter-claim should be struck out. Learned Counsel Mr. Tegavota bases his submissions on the Court of Appeal decision in Gandly Simbe -v- East Choiseul Area Council and Others CAC No. 33 of 1997 (unreported) 21st October 1998. Learned Counsel’s submissions can be summarized as follows. (1) That there is no evidence to show that the Defendant has demonstrated he has sufficient interest in Central Barora Ite Customary Land. Learned Counsel points out the Defendant had initiated proceedings but no hearing date has been confirmed. Learned Counsel also relies on the case of Nathan Kera v. Paul Karana Civil Case Number 258 of 2000 Kabui J 27th November 2000, and Rnbert Ratu v. Dakolae Civil Case 288/97 Muria CJ 18th February 1998. In Nathan Kera v. Paul Karana in an exparte application, his Lordship Kabui J refused to grant an interim injunction to restrain the Respondent from felling and removing trees from what the Applicant claims was his customary land, on the grounds that there was no evidence to show that the Applicant had commenced proceedings before the Chiefs under the Local Courts Act (Cap. 19). Learned Counsel submits the same position applies in this case. In Robert Ratu v. Dakolae the Plaintiff was agitating rights of ownership over what he claims is his customary land (Johore Land) but which had not been subjected to the timber rights processes set out in the Forest Act or a land dispute commenced under the Local Courts Act. The Court held his rights amounted to mere assertions, which did not entitle him to seek relief in this Court.

Secondly, learned Counsel argues the Applicant cannot challenge the TRA on the grounds that he is not a party to the said agreement.

The facts of the Case

The Plaintiff is in possession of a timber rights agreement (the TRA) and a timber licence, No.: A10005 issued on 8th March 200l, (hereinafter referred to as “the Timber Licence”) entitling it to acquire timber rights and to fell and remove timber over Central Barora Ite customary land (located between Rerekaharo Bay and Kudokadolo and between Venao and Horagano). A copy of the TRA is annexed as “Exhibit TRA” to the affidavit of Ofoniel Vato Tabo filed 2nd May 2001. The persons who signed that agreement, as representatives of the landowners were Ofoniel Vato Tabo, Peter McPherson, Dr. Obed Alemaena and Luke Eta. A copy of the Timber Licence is annexed as “Exhibit B” to the affidavit of Mok Tak Kee filed 2nd May 2001. On or about April of 2001, the Plaintiff commenced logging operations through a contractor MSL Import and Export Company (“the Company”). By Writ and Statement of Claim filed on 2nd May 2001, Plaintiff commenced proceedings against the Defendant seeking inter alia restraining orders to prevent him from interfering with the logging operations of the Company. By exparte summons filed 2nd May 2001 and heard on 14th May 2001 interim restraining orders were issued against the Defendant. Those orders were later discharged by orders of this court contained in its judgment delivered on 9th July 2001. By summons filed 25th October 2001, the Defendant sought and obtained orders (contained in the judgment of this court delivered 31st October 2001) restraining 20% of the gross proceeds of sale of 1,600 cubic meters of logs pending determination of the issues before this Court.

Locus Standi.

The objection of locus standi raised by learned Counsel for the Plaintiff is premised upon the misconception that the Defendant needed to establish locus standi before it can raise the issues in its Summons filed 28th August 2001. Unfortunately locus standi does not arise here as the issue of law raised are not by way of the counter-claim but by way of defence. Plaintiff has instituted this claim against the Defendant on the basis that it had a valid Timber Licence and the TRA in its possession. By way of defence (see paragraph 1 of his Amended Defence filed 24th August 2001) Defendant pleads that the Timber Licence and the TRA are void ab initio. This entitles Defendant to raise issues of law for determination before this Court pursuant to Order 27 rule 2 of the Rules. The submissions on locus standi accordingly are misconceived and should be rejected.

The Law

This leaves the questions of law raised by the Defendant to be determined. Counsel Tegavota has submitted for my consideration a Minute dated 7th March 2001 from an Officer in the Forestry Division in which the procedure adopted for processing the timber rights application of the Plaintiff was followed. Unfortunately that procedure adds little and makes little difference to the applicable procedures set out in the Forest Act. Those procedures cannot usurp what the law has laid down. Apart from that I find little else in submissions of learned Counsel to contradict the robust submissions of learned Counsel Mr. Hauirae for the Defendant. I accept submissions of Mr. Hauirae on the validity of the Timber Licence and the TRA. It is obvious the TRA and the Timber Licence could not have been valid in anyway under the Forest Act and accordingly should be declared void ab initio. It appears any other timber rights and licences issued in that period, 17th March 1998 to 23rd March 2001, could not have been valid as well.

Effect of Ruling

This simply means the Plaintiff has no right to log on Central Barora Ite Customary Land and must cease operations forthwith. The only way it can obtain valid licence is to recommence its application under the Forest Act. It now knows however that it is going to be faced with stiff objections from the Defendant in any timber rights hearing. As for the logs already felled, they cannot be left to rot and waste away. The Defendant does not object to having the logs exported but asks to have the proceeds restrained. Unfortunately, I do not feel it would be fair to the parties if all the proceeds are restrained. I am of the view that the same orders made in the judgment of this Court dated 31st October 2001 should also be made. The problem that remains outstanding between the Defendant and the four Representatives of the Central Barora Ite Land Holding Group is the question of ownership. Until that issue is finally determined, the payment due to the landholders cannot be released. Secondly, claims for damages for trespass and conversion contained in the Counter-Claim of the Defendant cannot also be proceeded with. This means this case file will have to be stayed until issues of ownership in custom are sorted out. The monies restrained by this (including those in the order of 31st of October 2001) accordingly should be paid into an interest bearing deposit account in Counsel’s names until final determination of the issues in this court or further orders.

ORDERS OF THE COURT

1. Declare that the timber licence numbered A10005 issued in favour of the Plaintiff on 8th March 2001 is inconsistent with the provisions of the Forest Resources and Timber Utilisation Act and is thereby void ab initio.

2. Refuse declaration sought in paragraph 2 of the Summons of the Defendant as it does not relate to the licence or timber rights issued in this case.

3. Declare that the timber rights agreement entered into between the Plaintiff and Central Barora Ite Land Holding Group on 21st February 2001 is void ab initio.

4. Consequently order that the logging operations on Central Barora Ite Island to cease forthwith but that Plaintiff may export all round logs felled and to have 20% of the gross proceeds paid into the same interest bearing deposit account in Counsel’s names opened pursuant to Order of this Court dated 31st October 2001.

5. Costs of the Defendant are to be met by the Plaintiff.

The Court