Lekelalu v Sale [2005] SBHC 72; HCSI-CC 208 of 2005 (8 June 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 208 of 2005

SETH LEKELALU, ELIJAH MUALA AND NEWTON ZALE

-v-

GRAHAM SALE, ION GARA, OSCAR DEREVEKE
AND PRESLY SOLOMON, IVAN REUBEN NGAI (Trading as Bukese Development Company), ELITE ENTERPRISES (SI) LIMITED AND ATTORNEY-GENERAL (Representing the Commissioner of Forests and the Comptroller of Customs and Excise)

Hearing: 25th May 2005
Ruling: 8th June 2005

C. Ashley for the Plaintiff
M. Bird for the First Defendants

RULING

Mwanesalua, J: By Summons filed on 29th April 2005, the Plaintiffs seek the following orders -

1. That the Second and Third Defendants together with their servants, agents and any persons authorized by them jointly and severably be restrained from carrying out any further logging operations within Toqasa Customary Land until further orders of the Court; and

2. That all proceeds of logs felled from within Toqasa Customary Land and exported be restrained and paid into Court until further orders of the Court; and

3. That no deductions whatsoever shall be made from the proceeds under order 2 hereof until further order of the Court; and

4. The Provincial Police commander and all Police Officers under his Command, immediately upon receipt of this order attend and enforce Order No. 1 hereof using such force as is reasonably necessary for such purpose; and

5. A Penal Notice attach to Order No. 1 hereof; and

6. The Plaintiffs take reasonable steps to cause to serve the Writ of Summons, Statement of Claim, Ex Parte Summons and Supporting Affidavit and Orders served on all the Defendants; and

The costs of and incidental to this application are reserved.

The Plaintiffs and the First Defendants are members of the Toqasa tribe which owns Toqasa Land in the Choiseul Province. The Second Defendant applied to negotiate for timber rights over Toqasa Land with the members of the Toqasa tribe.

The Choiseul Provincial Executive held a meeting with the members of the Toqasa tribe and the Second Defendant on 28th April 2003 to consider whether or not the members of the Toqasa tribe were willing to negotiate for the disposal of their timber rights to the Second Defendant.

The members of the Toqasa tribe were divided on their willingness to negotiate the disposal of their timber rights to the Second Defendant. The Plaintiffs, led by Seth Lekekalalu, did not have any desire at all to negotiate the grant of timber rights to the Second Defendant as that issue had not been discussed and approved by the members of the tribe prior to the meeting. However, the Plaintiffs were only willing to negotiate with the Second Defendant on its right to have access into Toqasa Land and the right to establishment of a log yard on that land in accordance with the decision of the members of Toqasa tribe in 1998. On the other hand, the First Defendants, led by Graham Sale, were willing to negotiate the disposal of timber rights to the Second Defendant.

Graham Sale told the meeting that any dispute which may exist between members of the Toqasa tribe would be resolved after the timber rights hearing. But he insisted, that the members of the Toqasa tribe must grant timber rights to the Second Defendant.

The Plaintiffs say that the logging operations by the Defendants on Toqasa Land are illegal as the procedure for the acquisition of timber rights over customary had not been fully complied with as required by the Forest Resources and Timer Utilisation Act [Cap.40] - (the Act).

Seth Lekelalu, who is one of the Plaintiffs deposed in his affidavit filed on 29th April 2005, that the Choiseul Provincial Executive never published any notice of its determination after the timber rights hearing on 28th April 2003. That deprived him of the right to lodge an appeal against the determination.

In response to Seth Lekelalu’s evidence, Oscar Dereveke, who is one of the First Defendants deposed in his affidavit filed on 23rd May 2005, that the Choiseul Provincial Executive made its determination on 5th December 2003 and was displayed at Ruruvai and Posorae villages. He deposed that the determination was embodied in exhibit "SL3" annexed to the affidavit of Seth Lekelalu.

Exhibit "SL3" as annexed to the affidavit of Seth Lekelalu, and referred to in paragraph 4 of Oscar Dereveke’s affidavit, is a Form 3. This Form 3 was issued by the Provincial Secretary after the entire timber rights acquisition procedure was completed. Oscar Dereveke deposed that this was the form which was put up on public display at Ruruvai and Posorae villages. It is a legal requirement under the Act, that the Choiseul Provincial Executive set out its determination in Form 2, and give public notice of such determination to persons who live in villages within the vicinity of Toqosa Land who may have interests on Toqasa Land and the timber on that land.

There is evidence to show that the determination of the Choiseul Provincial Executive was not displayed in public within the vicinity of Toqasa Land. This deprived persons who were aggrieved by the determination, like Plaintiffs in these proceedings, to lodge an appeal within one month of the date of the public notice to the Choiseul Customary Land Appeal court. In my view, there are serious tribal issues before the court.

The logging operations by the First, the Second and the Third Defendants are still in progress on Toqasa Land at the present time. The timber on the Land and the timber royalties would be gone by the time this case is finally determined by the court. The Plaintiffs will be the losers if they win the case. However, the First, the Second and the Third Defendants would still be adequate compensated if the case is decided in their favour. This is because they would continue with their logging operations on Toqasa Land.

In the balance of convenience, I will grant the orders sought by the Plaintiffs in terms of the interparte summons filed on 29th April 2005 as set out above in this Ruling.

ORDERS OF THE COURT -

1. Grant orders sought in summons filed on 29th April 2005.

2. Parties to pay their own costs.

Francis Mwanesalua
Puisne Judge