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Labere v Kalena Timber Company Ltd [2001] SBHC 43; HC-CC 211 of 2000 (13 July 2001)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 211 of 2000

JOHN LABERE AND AGNES VOTAIA

(Representing The Harero Tribe)

v

KALENA TIMBER COMPANY LIMITED

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High Court Of Solomon Islands

Before: F. O. Kabui, J

Civil Case No: 211 of 2000

Hearing: 12th & 13 February and 21st, 22nd &&27th June 2001

Ruling: 13th July 2001

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mrs. M Samuel for the Plaintiff

1"> G. Suri for the Defendant

RULING

(Kabui, J): The Plaintiffs are John Labere and Agnes Votaia. They are cousins. They filed a Writ of Summons and a Statement of Claim on 15th September 2000 against the Defendant (Kalena Timber Company Limited). In their Statement of Claim, they seek the following orders

[i] &nbbsp;& &nsp; &nsp; That the Defe ant be rese restrained from conducting any further logging operation on the Harero land.

class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> [iip; That any procoeds ofds the logging operation on the said land be made payable to an interest bearing deposit account with any commercial banks in Honiara.

[iii] &nnbsp;; That that the Defendant pay to theo the Plaintiffs damages for trespass and conversion.

[iv] &nnbsp; Any further orders ders that this Court dert deems fit to make.

class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> [v] &nnsp;& Csp;s astinstathe the Defendants.

In the meantime, the Plaintiffs were able to obtain restra orders against the Defendant on 26th Sept September 2000 pending the resolution of the Plaintiffs’ claim against the Defendant. On 3rd >October 2000, the Defendant filed a Notice of Motion seeking orders against the Plaintiffs. The Defendant’s Notice of Motion came e me on 13th > December 2000. The Plaintiffs nor their Solicitor Mrs. Samuel, were present in Court.

Cl for the Defendant , Mr. Suri, however told me that Mrs. Samuel was down with nbsp;malard so was un unable to come to court. On the basis that Counsel for the Defendant, Mr. Suri, was not sure of Mrs. Samuel’s attitude on the restrainrders against the Defendant, he applied for the stay stay of the restraining orders pending the hearing of the Defendant’s Notice of Motion. I granted the staying Order on 16th October 2000. By Notice of Motion filed on 20th December 2000, the Plaintiffs sought the relisting of the Defendant’s Notice of Motion or in the alternative, the Defendant’s Notice of Motion be treated as the inter partes hearing of the dispute. The Defendant’s Notice of Motion came before me on 24th January 2001. I adjourned the hearing to a date to be fixed by the Registrar of the High Court. Further hearing took place on 12th and 13th of February, 2001 and 21st, 22nd and 27th June 2001.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The DefendaNotice of Motion

In its Notice of Motion, the Defendant seeks to set aside the ex parte orders made by the Court on 26th September 2000. The grounds supporting the application are in paragraph 1-6 set out in that Notice of Motion. Further orders are sought in paragraphs 7-10 of that Motion. The Plaintiffs’ Notice of Motion filed on 20th December 2000 has not been st down for hearing. It would appear that by relisting the Defendant’s Notice of Motion for hearing commencing on 12th February 2001, the Plaintiffs’ Notice Motion would no longer serve any useful purpose and so it simply lies in the file. It has not been withdrawn.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Facts

On 10th January 1990, a Timber Rights Agreemas signed between the Defendant and the Trustees for for the Haforai, Irureqo, Ozileqo, Qai, Tive, Teborana, Hiriro and Oreasi Tribes on Rendova Island in the Western Province. As a result of this Agreemehe Commissioner for for Forest Resources on behalf of the Government, issued a felling Licence in the name of the Defendant. This pan style="font-size:12.0pt">Licence was to cover all the areas of land set out in the Timber Rights Agreement. The Licence was issued on 17th December 1991 and numbered TIM2/25 expiring on 7th December 2001 in accordance with the terms of the Timber Rights Agreement. The Plaintiffs were not at the Timber Rights Hearing conducted by the Rendova Area Council on 11th, 12th ,13th and 14th April, 1989 to determine who were the persons lawfully entitled to grant timber rights to the Defendant. The Plaintiffs later discovered that Harero Land which they claim to be theirs had been included in the Timber Rights Agreement without their authority.

The Plaintiffs Case

The Plaintiffs’ are the descendant’s of a woman called Ide, the daughter of Ziqe a woman from Hiriro Tribe. ibe. The husband of Ziqe was Qazo frrero Tirbe. Qazo died fied first. Ziqe committed suicide by hanging herself in her state of sorrow for the death of usband, Qaso. The manner in which Ziqe met her death caused Harero land to be given tven to Hiriro Tribe through Ziqe. The Plaintiffs claim ownership of Harero Land through Ziqe whose line was given Harero land for her death. The fact that Harero Land was not included in Form 1 made it unnecessary for the Plaintiffs; to attend the Timber Rights Hearing conducted by the Rendova Area Council in April, 1989. The fact that Harero Land was included under the Timber Rights Agreement under Teborana was a mistake. The Defendant is therefore trespassing upon Harero Land and unlawfully felling trees thereon.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Defendant’s Case

The trustees for Teborana Land are Henry Seda, Mathew Alepio, Nathan Alepitu, Jabele, Bension James and Kerepi Soza. The trustee who signed the Timbers Rights Agreement on behalf of the Teborana Tribe was Henry Seda. The effect of the evidence adduced on behalf of the Defendant is that Harero Land is in fact Teborana Land. The Teborana Tribe comprised six clans one of which is Harero Clan to which the Plaintiffs belong. For them, their representatives at the Timber Rights Hearing in April 1989, were the trustees identified for the Teborana Land. For the Harero Clan, Mathew Alepitu was their representative at the Timber Rights Hearing above.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Evidence

The starting point is form 1 (see page 40 of the Laws of Solomon Islands, Revised Edition 1996, volume 11). No copy of the Form 1 with the necessary information filled in was produced in Court. However, the Minutes of the Rendova Area Council Hearing seemed to show that the Defendant’s Application was for the whole of Rendova excluding Ughele and Razo. The list of persons entitled to grant timber rights and the land areas they represented did not include the Plaintiffs nor Harero as one of the land areas to be considered by the Rendova Area Council. Mathew Alepio gave sworn evidence at the Area Council Hearing to show he was a member of the Teborana Tribe. All the trustees for Teborana Tribe did likewise. None of them said anything about the Plaintiffs nor mentioned the Harero Tribe.

There is no evidence to show at Mathew Alepio had informed the Plaintiffs that he had represented them at the Rend Rendova Area Council Hearing. There appeared to be a reason for this silence. Wilson reason for this silence. Wilson Kera, the son of Mathew Alepio, in his affidavit filed on 6th November denied that the Plaintiffs were members of the Harero Tribe. He said this was so because Qazo, the husband of Ziqe, was a man form the Qai Tribe and not the Harero Tribe. He said he was the Chief of both Hiriro and Harero Tribes. Leban Sasa of the Ozileqo Tribe in his affidavit filed on 11th October 2000 denied that the Plaintiffs were of the Harero Clan but were members of the Hiriro Tribe. Mark Qaqa of the Qai Tribe in his affidavit filed on 9th October 2000 said that the Qai Tribe shared common boundaries with the Harero Tribe. In re –examination by Counsel for the Plaintiffs, Mrs, Samuel, Mark Qaqa said Teborana Tribe and Harero Tribe were separate Tribes. He also said that Qazo was a man from the Qai Tribe as well as from the Harero Tribe. There is therefore conflict in the evidence.

The Issue

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Despite the vast amount of evidence produced by way of affidavits ral evidence by the deponenponents of the affidavits, the issue in this application is simple. The issue is whether or not the ex parte order made on 26th September 2000 should be discharged upon the grounds set out in the Defendant’s Notice of Motion. However, the amount of evidence adduced in this Court went as far as covering also the triable issues disclosed by the Writ of Summons, the Statement of Claim and the affidavit evidence presented at the ex parte hearing on 22nd September 2000. In other words, the hearing of the Defendant’s Notice of Motion almost assumed the character of inter partes hearing of the Plaintiff’s action. However, it was not the hearing of the Plaintiffs’ action. However, paragraph 1 of the Defendant’s Notice of Motion does raise the issue of the validity of the Timber Rights Agreement and the Licence issued upon the basis of that Agreement. Paragraph 2 raises the issue of whether or not the Plaintiff’s are the owners of Harero land. Paragraph 3-6 whave have been arguments advanced against the granting of an ex parte order had the Defendaen given notice and attendetended the ex parte hearing on 22nd September 2000. Despite the rather wide scope of paragraphs 1-6 in the Defendant’s Notice of Motion, I must restrict my attention to the over-riding intention of that Motion being the setting aside of the ex parte order dated 26th September 2000. I believe I am correct in holding this view because Counsel for the Defendant, Mr. Suri, in his written submission filed on 3rd July 2001, took that same position in his introductory remarks in his submission. Counsel for the Plaintiffs Mrs. Samuel, in her written submission, filed that same day as that by Mr. Suri also confirmed that same position.

Determination of the issue

The ex parte order mder made on 26th September 2000 was for the purpose of keeping the status quo pending the resolution of the dispute between the parties. This ex
parte order was stayed by default of appearance in Court by the Plaintiff on 13th October 2000. The staying order was dated 16th October 2000. The effect of the staying order is that the Defendant was free to fell and remove timber from Harero land for the last eight or so months, quite contrary, I take it, to the wish of the Plaintiffs. In the meantime, the matter dragged on and the staying order remained effective against the interest of the Plaintiffs. The whole purpose of the ex parte order made on 26th September 2000 was being defeated by the staying order which had remained unchallenged by the Plaintiffs. It is now ten months since the Plaintiffs filed their Writ of Summons and Statement of Claim and the parties are still fighting over the interim ex parte order made on 26th September 2000. This state of affairs, in my view, is undesirable to say the least. The Plaintiffs’ action seemed to have forgotten by their Solicitor. The Defendant filed its defence on 22nd January 2001 though out of time and without first entering an appearance. Nevertheless the Plaintiffs’ have not filed a reply and by now I would assume they do not wish to do so. The Plaintiffs should have taken out a Summons for directions long ago but again they have not done so. The Plaintiffs’ action is therefore delayed. Now they would like the ex parte order made on 26th September 2000 to continue whilst doing very little or nothing at all in the progress of their action. The Defendant, on the other hand, had not attempted to strike out the Plaintiffs’ action for these procedural defaults. Perhaps, for economic reasons, the staying order was a better option and prolonging it would not matter much to the Defendant. In fact, the Defendant wants it out of the way as soon as possible. This Motion is to achieve that end.

In the first place, none of grounds 1-6 in the Notice of Motion alleges lack of disclosure of evidence against thst the Plaintiffs at the ex parte hearing so that the ex parte order would have had no factual basis for its making. The order was made on the basis of the Writ of Summons, the Statement of Claim and the affidavit of Agnes Votaia filed on 18th September 2000. Exhibits “AV1”, “AV2”, and “AV3” were attached to Agnes Votaia’s affidavit. Exhibit “AV1” clearly shows that Harero Land does not appear in Form 11. Exhibit “AV2” shows the area of land named Harero as known by the Plaintiffs. “AV3” shows Harero land is a separate area of land from Teborana. The Plaintiffs’ Statement of Claim raises three triable issues. First, is whether or not the Defendant’s Licence was valid in so far as it covers Harero Land. Second, is whether or not Harero is a separate land from Teberona. Third, is whether or not Plaintiffs are the owners of Harero land in custom. These are triable issues based on the cause of action that the Plaintiff’s are the owners of Harero land and have not consented to the Defendant felling and removing timber from Harero land. The reasons for granting the ex parte orders are set out in my ruling on 25th September 2000. If the Defendant was not in agreement with that ruling it should have appealed with leave of the Court to the Court of Appeal. The Defendant has not adduced any evidence to show any defect or omission in the evidence before me at the hearing of the Plaintiffs’ ex parte Summons on 22nd September 2000. There is no ground upon which I can discharge the ex parte order I made on 26th September 2000. It was an interim order only and its fate would have been decided at the end of the hearing of the Plaintiffs’ action if that action had come to trial earlier. As it is now, the trial date is yet to come depending upon how the Plaintiffs’ Solicitor takes the matter from here. My ruling is that the Defendant’s application is dismissed and the ex parte order should continue until trial of the Plaintiffs’ action. The quicker the trial date is fixed for the Plaintiffs’ action, the better it is for the parties. Costs are to be in the cause.

F. O. Kabui

Judge


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