Jepe v Tropa [2005] SBHC 182; HCSI-CC 379 of 2005 (11 November 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 379 of 2005

MOCKSON JEPE
(Representing Ghasiovo/Irureqo
Clan of the Irureqo Tribe)

v

JOHN BROWN TROPA,
ELLIOT GHESO AND
HENRY SEDA
(First Defendants)

KALENA TIMBER
COMPANY LIMITED
(2^nd Defendant)

(BROWN J)

Date of Hearing: 11^th November 2005
Date of Ruling: 11^th November 2005

Andrew Nori for the Plaintiff
Gabriel Suri for the Defendants

Reasons for Decision

The inter-party summons of the plaintiff seeks injunctive orders preventing the receipt of royalty moneys from timber felled on Irurego land on Rendova Island by the 2^nd Defendant, and further that the 2^nd Defendant not pay any such moneys to the 1^st defendants.

The summons follows the plaintiff's originating cause where the plaintiff claims as a Chief and member of Irureqo Tribe that owns Irurego land; an originating cause which pleads that the 2^nd defendants entered into a further timber rights agreement over the same land whereby the royalty payments have been paid to the 2^nd defendants, payments made in breach of the timber rights agreement originally made.

The defendant's contest the claims for that there is only one timber right agreement, (a copy of which is annexed to the affidavit of Elliot Gheso) which was signed, on behalf of the Irurego tribe by one Vikilani Embokolo, since deceased. That Timber Rights agreement was with the defendant, the Kalena Timber Company.

It was under this agreement, the 1^st defendants say, that the more recent logging has been carried out for there is no other agreement. The initial logging ceased for commercial reasons but recommenced with the consent of all the parties.

Since the original signatory to the timber rights agreement Vikilani Embokolo had died on the 5^th February 2003 the Irurego Executive Committee organised logging over some 15 coupes with an estimate volume of 23,000 - 30,000 m³, taking some 2 years, to proceed in terms of the minutes of that meeting when the 1^st defendants were elected to Executive.

The plaintiff was named in the minutes as trustee. Irureqo accounts and allocations were listed in the minutes as well as administration/operational expenses.

Now the plaintiff says the 1^st defendants should be injuncted on the basis of its stated cause of action.

Discretionary Powers

It must be remembered my powers to grant interim injunctive orders to stop an existing process or here, payments, are discretionary but need to be made on established reasons.

Mr. Suri says that the plaintiff did not sign the original timber rights agreement and cannot claim rights under that agreement to stop the contractor, the 2^nd defendant, carrying out its obligation to pay royalties.

The plaintiff alleges there is another separate agreement but there is none. The authority of the acts of 1^st defendants arises in terms of the minutes of the executive meeting.

The other representative signatories to the timber rights are those of other tribes. Those other signatories represent other tribal land.

The manner in which the royalties are split and paid are recorded in the minutes where the plaintiff is named as a trustee. Consequently the fairness of the split is not justiciable in this court. John Brown Tropa is the lawful successor to the late Chief Vikilani Embokolo, and one of the Executive entrusted with the royalties.

[And in any event since the plaintiff seems to be suggesting the 1^st defendants are from a different tribe, the royalty split cannot concern the plaintiff if that be so].

Mr. Nori says giving credence to the 1^st defendant's argument satisfies the test that the plaintiff claims as a beneficiary under a trust arrangement.

The right of the 1^st defendants to treat timber rights in that of fashion, by dealing with the royalty moneys need be proven in a customary court so that until that is done the moneys should be injuncted. If the moneys are dissipated the plaintiff will have no way of recovery.

Reasons

The issue clearly is one about the distribution of royalty moneys subject to a customary trust if you like. That customary trust is set out (presumably to a large extent) in the Executive minutes. The 1^st defendants are the executive and I have been satisfied the 2^nd defendant had no part to play in the allocations. There is, on the material before me, no other timber rights agreement than that produced by the 1^st defendants. The use of the minutes of the Executive meeting leaves me in no doubt the executive are dealing with the original agreement and not some fresh Agreement. John Brown Tropa is on the face of the documents, the lawful successor to the original person who signed the agreement, Vikilani Embokolo and vested with power by custom to act in this fashion.

I am consequently not satisfied it is a proper matter for the exercise of my discretion. The argument may really be said to be the shearing arrangements an argument which should properly not be entertained by this court. The claims in the summon are refused.

A proper order should be to dismiss the summons with costs.

The originating process may proceed in the normal way but the plaintiff may reconsider in the light of these reasons.

Summons dismissed with costs.

THE COURT