Gota v Noga [2006] SBHC 110; HCSI-CC 125 of 2006 (6 April 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 125 of 2006

CHARLES GOTA (Representing Hogokiki Koba Clan of Hogokili tribe)
AND JAMES GOLE (Representing Hogokiki Gunu Clan of Hogokiki tribe)

V.

ROBERT NOGA, PHILIP BOPI, WILLIAM TARAI AND DERRICK VAGI (First Defendants) TROPICAL RESOURCES DEVELOPMENT COMPANY LIMITED (Second Defendant) SUCCESS COMPANY LIMITED (Third Defendant) PREMIER OF CENTRAL PROVINCE (Representing Central Province Executive) (Fourth Defendant) ATTORNEY-GENERAL (Representing Commissioner of Forest Resources (Fifth Defendant)

(Mwanesalua, J)

Hearing: 4th April 2006
Ruling: 6th April 2006

Thomas Kama for the Plaintiffs

RULING

(Mwanesalua J). The Plaintiffs have come to court by writ of summons and statement of claim filed on 31st March 2006, seeking declarations, orders and damages for trespass and conversion of timber against the First, Second and Third Defendants. The Plaintiffs also filed an Ex parte Notice of Motion on 31st March 2006, seeking an interim order, inter alia, to restrain the First, Second and the Third Defendants, their servants or agents from entering and carrying out any logging operations on Sonia, Kio and Tunuva Customary lands save that any trees felled prior to the date of this order may be extracted and sold.

The Fifth Defendant granted felling licence No. TIM 2/121 to the Second Defendant on 22nd February 1999 to fell and extract timber on Totoba, Aolona, Valeova, Vatupota and Maneisonisara customary lands on Ngella Island. The First Defendants signed the Timber Rights Agreement (Form 4) over Sonia land with the Second Defendants on 23rd January 2004. The signing of this Agreement was witnessed by the Provincial Secretary of Central Islands Province. On the same day, 23rd January 2004, the Fifth Defendant extended the Second Defendant’s felling Licence No. TIM 2/121 to cover 16 new blocks of customary land inclusive of Sonia land. Sonia land is comprised of Sonia, Kio and Tunuva customary lands. On 19th March 2004, the Second and the Third Defendants signed a Logging Management Contract. This Contract gave the Third Defendant exclusive, unconditional and unfettered timber rights to the Third Defendant as Contractor over the 16 new blocks of land inclusive of Sonia land.

On March 2006, the First and Second Plaintiffs referred their land disputes with the First Defendants over Sonia, Kio and Tunuva lands to the Boli House of Chiefs for determination. The First Defendants were served with notice to attend the Chiefs’ hearing of the land disputes on 14th March 2006, but they failed to attend. On 16th March 2006, the Boli House of Chiefs determined that Kio and Tunuva lands were owned by First Plaintiff’s Hogokiki Koba clan of Hogokiki Tribe and that Sonia land was owned by the Second Plaintiff’s Hogokiki Gunu Clan of the Hogokiki Tribe.

The Plaintiffs came to this court by writ of summons and statement of claim filed on 31st March 2006. They seek declarations, orders, damages for trespass and conversion of timber and costs. They seek relief after they and the members of their clans had been adjudged by the Boli House of Chiefs to be the customary owners of Sonia, Kio and Tunuva customary lands, on which the First, Second and Third Defendants have conducted logging operations. There are obviously triable or serious issues in this case which this court has jurisdiction to hear and award relief. The orders sought by the Plaintiffs are granted.

THE ORDERS OF THE COURT:

1. The First, Second and Third Defendants by themselves, their servants or agents be restrained from entering and carrying out any logging operations on Sonia customary land in Ngella Island, Central Province which is edged yellow in the sketch map annexure "JG-1" in the affidavit of James Gole and Kio and Tunuva customary lands both also in Ngella Island, Central Province which are edged green in the sketch map annexure "CG-1" in the affidavit of Charles Gota both filed on 31st March 2006 until trial or further order save that any trees felled prior to the date of this Order which will be extracted and clearly identified and sold.

2. That the Second and Third Defendants shall pay the net sale proceeds arising from the sale of logs shipped on the Marine vessel Magnium Voyage 52 last week and any logs now in their possession which were extracted from Sonia, Kio and Tunuva customary lands in Ngella Island, Central Province or to be extracted pursuant to the proviso in Order 1 herein into court or in an interest bearing account within 7 days of receipt thereof.

3. The Second and third Defendants be restrained until trial or further order from paying any royalties or other sums arising out of the sale of logs extracted from Sonia, Kio and Tunuva customary lands in Ngella Island, Central Province to the First Defendants or any other persons.

4. The Second Defendant be restrained until trial or further order from paying any management fees or any sum arising out of the sale of logs extracted from Sonia, Kio and Tunuva customary lands in Ngella Island, Central Province to the Third Defendant or any other persons.

5. The Second and Third Defendants give account of:-

(i) all logs by volume and species felled and extracted from Sonia, Kio and Tunuva customary lands in Ngella Island, Central Province land to date;

(ii) all logs by volume and species felled, extracted and milled from Sonia, Kio and Tunuva customary lands in Ngella Island, Central Province land to date;

(iii) all sales proceeds of log exported and sawn timber in paragraphs (i) and (ii) above within 7 days from receipt of the proceeds of sale.

By filing the account in the High Court Registry and a copy be served on the Plaintiffs’ solicitors;

6. The hearing of the Plaintiffs’ Notice of Motion is adjourned to an inter partes hearing on a date to be fixed by the Registrar.

7. A penal notice be attached to the Order.

8. Costs reserved.

THE COURT