Viulu v Kavusu [2002] SBHC 105; HC-CC 015 of 2002 (22 February 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 015 of 2002

WUITLYN VIULU, RAEVYN REVO, BROWN LAMU ISAAC NAPATA AND SETH PIRIKU (representing the VEALA tribe)

-V-

TUI KAVUSU, MOLTON LUMA, SAMSON SAGA, PESETI KUITI, HAMI LAVI, GORDON YOUNG, PAUL KAVUSU, OPHIU VEDI, STEN VENO, ISAAC NONGA, AND ABRAHAM KUMITI, T/A NAMA DEVELOPMENT COMPANY
STEVEN VENO (representing HIHIOVO Landholding Group)
SAMSON SAGO (representing KOLOMBANGARA Landholding Group)
PESETI KUITI (representing GULAGULASA Landholding Group)
ISAAC NONGA (representing MALEMALE Landholding Group)
OMEX LIMTED (As Logging Contractor) AND
ATTORNEY-GENERAL (representing Commissioner of Forest)

HIGH COURT OF SOLOMON ISLANDS
(FRANK O. KABUI, J.)

Date of Hearing: 21^st February 2002
Date of Ruling: 22^nd February 2002

Mr G. Suri for the Plaintiff
Mr J. Sullivan for the Defendants

RULING

(Kabui, J): By a Writ of Summons and a Statement of Claim filed on 30^th January 2002,the Plaintiffs claimed against the Defendants declarations and orders on the ground that the Plaintiffs possess usage rights over certain areas of land on Veala Land. As is usual in these cases, the Plaintiffs also filed an Ex parte Summons on 31^st January 2002 seeking the following orders-

1. An order restraining forthwith the First, Second and Third Respondents/Defendants their contractors, agents, friends or associates from continuing with their felling of logs or carrying on of logging activities within the Ojana Lavata, Ojana Kiki, Rivit, Susuvairana, Lalajiri and Kuvotu on Vangunu island whether known by those names or other names, as shown on the map attached hereto, until further orders of this Court.
   
2. An order that the First, Second and Third Respondents/Defendants remove all the logging machines and equipment from the said Ojana Lavata, Ojana Kiki, Riviti, Susuvairana, Lalajiri and Kuvotu on Vangunu island within fourteen days from the date of this order.
   
3. An order that the First, Second and Third Respondents/Defendants provide by way of Affidavit an inventory of logs already felled stating the species of the trees, the land from which the logs were cut, and the FOB value of the logs felled and the name and address of the proposed purchasers of the logs already felled.
   
4. An order directing the Commissioner of Police to enforce or assist with the enforcement of the terms of this order.
   
5. That an inter parte hearing be fixed after 14 days form the date of the interim order.
   
6. Further or other orders as the Court deems fit.
   
7. Costs of this application be in the cause.
   

I made the orders sought by the Plaintiffs on the 6^th February 2002. Paragraph 5 of the order said that the inter partes hearing was to be fixed after 14 days from the date of this order. The date of hearing was fixed for 21^st February 2002 at 2.30 pm. The time was moved forward to 11:00 am, as I was to attend a meeting at 3:00 pm. At the hearing that morning, Counsel for both parties agreed by consent that the inter partes hearing be adjourned to a date to be fixed. The reasons for adjournment were given but I need not state them here. Counsel for the 7^th Defendant, Mr. Katahanas, then took up his Summons filed on 18^th February 2002. This Summons sought the following orders-

1. The Ex parte Order on 6^th February 2002 be varied as follows:-
   
   • (a) paragraphs (1) and (2) be varied by deleting from each paragraph the word "Riviti".
     
   • (b) Paragraph (2) be further varied by adding the following proviso- "provided that the Seventh Defendant shall be permitted to remove any logs already felled in the said lands and remove the same to its log yards on Rihiti land".
     
2. Paragraph (3) be further varied by adding the following proviso-
   

"The Seventh Defendant shall separately identify all logs, removed from the said lands (other than Rihiti land), and is authorized to sell and export same. The net proceeds (after deducting from the FOB price, the export duty and any of the Seventh Defendant's reasonable operating costs as certified by a public accountant) from the sale and export of such logs shall be paid into a joint interest bearing trust account in the names of the solicitors for the Seventh Defendant and the Plaintiffs to abide the further orders of the Court".

3. Such further or other orders as the Court thinks fit.
   
4. Costs in the cause.
   

Counsel for the Plaintiffs, Mr. Suri, opposed the orders sought by the 7^th Defendant, in particular the proposed deletion of the word "Rihiti" in paragraph 2 of the Summons above. I granted the orders sought by the 7^th Defendant yesterday and said I would give the reasons later. I do so now.

The Background

The Plaintiffs claim to be the true owners of various areas of land on Vangunu Island in the Western Province. These areas of land are called Kuvotu, Ojana Lavata,Ojana Kiki, Rihiti, Susuvirana and Lalajiri. The 1^st Defendant and the 2^nd-6^th Defendants had signed a Timber Rights Agreement on 7^th December 2001 under which the 1^st Defendant is entitled harvest trees for gain in the areas of land specified in that Agreement. Pursuant to the Agreement, a Licence to fell trees and to remove them was issued on 24^th December 2001 to the 1^st Defendant The 7^th Defendant is the contractor brought in to harvest and market the logs extracted from the logged areas. Logging machines have landed in Ojana Kiki and construction of roads and a log pond has begun. The 7^th Defendant has felled about 2000-3000m3 of logs within Ojana Kiki, Rihiti,Susuvirana, Lalajiri and Kuvotu areas of land. If these logs are not removed quickly and sold, they will rot and be wasted to the detriment of all parties. The 7^th Defendant's Summons is aimed at the variation of the order I made on 6^th January 2002 to ease its severity on the Defendants.

The Sticking Point

The sticking point is the proposed deletion of the word ''Rihiti'' in paragraphs [1] and [2] of the order I made referred to above. Counsel for the 7^th Defendant, Mr Katahanas, argued that the name Iula Kitu mentioned in paragraph 4 of Mr. Viulu filed on 8^th January 2002, did not appear as one of the Plaintiffs in the Plaintiffs's Writ of Summons filed on 30^th January 2002. That is to say, as far as ''Rihiti was concerned, Iula Kitu had no standing as she was not one of the Plaintiffs. Counsel for the Plaintiffs, Mr. Suri, argued the opposite. He said that although Iula Kitu was not mentioned amongst the Plaintiffs, she was nevertheless included because the Plaintiffs cited in the Writ of Summons were the representatives of the members of the same tribe. being the Veala tribe. Paragraph 4 of the affidavit filed by Mr. Viulu referred to above, in my view, speaks for itself in this regard. Clearly, in that paragraph, Mr. Viulu and his family do have usage rights over Kuvotu and Lalajiri areas of land. In the case of Ojana Kiki area of land, Mr. Revo and his family are the people who have usage rights over that area of land. In the case of Susuvirana area of land, Mr. Lamu and his family are the people who have usage rights over that area of land. In the case of Ozanga Lavata area of land, Mr. Piruku and his family are the people who have usage rights over that area of land. As regards ''Rihiti' , Iula Kitu and her family are the people who have usage rights over it. But Iula Kitu is not amongst the Plaintiffs. Counsel for the 7^th Defendant, Mr. Katahanas, urged me not to read into paragraph 4 of Mr. Viulu's affdavit things that were not said there. In other words, I must take paragraph 4 above as I found it as being the evidence before me. Obviously, this point escaped my attention at the exparte hearing on 6^th February 2002. This is the kind of risk the court takes when it deals with exparte applications that are brought by lawyers often drafted and filed in a hurry under the slogan of urgency. There are of course proper cases of great urgency properly drafted and filed by some lawyers.

In this case, I did have no difficulty in agreeing with Counsel for the 7^th Defendant. I granted the orders sought by the 7^th Defendant, as I have said, yesterday on 21^st February 2002. I also granted an amendment to paragraph [2] of my order to rectify the effect of the period of 14 days stipulated in that paragraph, having lapsed. The machines have not been removed since the 6^th February 2002. This amendment was sought by the 7^th Defendant and was not opposed by the Plaintiffs. The Plaintiffs also sought cosmetic amendments in paragraphs [1], [2] and [3] of my order by inserting in the first lines in those paragraphs, the words,'' The First, Second, Third, Fourth Fifth, Sixth, and Seventh Defendants''. These amendments were not opposed by the 7^th Defendant. I granted the amendments sought. These amendments were to be incorporated into my order dated 6^th February 2002 referred to above.

F.O.Kabui
Judge