Jimuru v Timothy [2006] SBHC 21; HCSI-CC 478 of 2005 (28 June 2006)

ALRICK JIMURU, HERRICK RAGOSO, LAPAE MEANI, RISILY AMOS, SILIVA DIONI AND WILSON LILIQETO (REPRESENTING THEMSELVES AND THE BABATA TRIBE); AND SILVANIA PRODUCTS LIMITED -V- DERALD TIMOTHY, DERRICK HALU, KOKEI JOSEPH, PETRIE NICELY, RAKU HALU, RICKY PHILIP AND SMITH OTU (REPRESENTING THEMSELVES AND THE TIROTOBO LANDHOLDING GROUP)

High Court of Solomon Islands
(Palmer CJ)

Civil Case 478 of 2005

Date of Hearing: 5th May 2006
Date of Judgement: 28th June 2006

Bridge Lawyers for the Plaintiffs
Pacific Lawyers for the Defendants

Palmer CJ.:

1. This is a dispute between two landowning groups, the first Plaintiffs representing the Babata Tribe and the Defendants representing the Olovotu Tribe. It started off as a dispute in timber rights over an area of customary land, each claiming different names for it. The first Plaintiffs say that they are the owners in custom of the area of land known as Rarae land. The Defendants say they are the owners of the said Rarae land which is in Tirotobo customary land. So we have two tribes each claiming rights of ownership over what appears to be the same area of land.
   

1.1 This dispute started off as a timber rights dispute under the Forest Resources and Timber Utilisation Act (Cap. 40) ("the Forest Act") but as will be seen will now finish up as a land dispute through the Local Courts Act (Cap. 19).

1.2 The second Plaintiff ("Silvania") is a logging company which holds a Timber Licence No. A10250 issued by the Commissioner of Forests ("the Commissioner") on 16 December 2004. That timber licence covers the concession area of Tirotobo customary land. It is not in dispute that Rarae land is in Tirotobo.

1.3 On 6 May 2005, the first Plaintiffs invited Silvania and Seri Hite to carry out logging activities on Rarae land. Silvania commenced operations shortly thereafter in June 2005.

2. The Defendants not only claim ownership rights but timber rights over Tirotobo land as duly determined under the Forest Act. On 29 May 2002 they entered into negotiations with Silvania for the acquisition of timber rights over Tirotobo land and applied to the Commissioner under the said Act to process their application. A timber rights hearing was convened on 12 August 2002 following which the Western Provincial Executive determined that Derald Timothy, Derrick Halu, Kokei Joseph, Petrie Nicely, Raku Halu, Ricky Philip, Smith Otu and Joshua Giri were the persons lawfully entitled to grant timber rights over Tiritoba customary land.
   

2.1 On 26 November 2004, a standard logging agreement ("the Agreement") was entered into between Silvania and persons purporting to be the Tirotobo Landowners. These were Derold Timothy, Denton Bennie, Derrick Halu and Seri Hite. Only Derold Timothy and Derrick Halu were the persons originally identified as persons able to transfer timber rights over the said land. On 10th December 2004 a further agreement was signed as a supplementary agreement to the Agreement. This time this was signed by all the original representatives save Joseph Kokei. There was an additional signatory though, Denton Bennie.

2.2 On 15th December 2004, Silvania wrote to the Commissioner for issue of a timber licence over Tirotobo land.

2.3 On 16th December 2004, the Commissioner granted timber licence No. A-10250 in favour of Silvania. It is important to note that that licence was issued pursuant to the Agreement executed by two of the Defendants Derold Timothy and Derrick Halu and one Seri Hite and Denton Bennie. No issue has been raised regarding validity of that Agreement.

3. What are the issues which arise in this case? It is my respectful view that there are two main issues in this case. The third issue is a consequential issue which arises regarding any orders to be issued by the court.
   

(i) Who has the timber rights over Tirotobo land?

(ii) Who has ownership rights over Rarae land or Tirotobo land?

(iii) What (if any) orders are to be issued?

3.1 The question of ownership of timber rights is critical to either party’s application. The law governing question of timber rights and issue of timber licence is well set out in the Forest Act. I do not need to repeat the lengthy procedure in which such process is set in motion. If any person wishes to export timber in the country (undertake logging activities) in customary land, he must make application to the Commissioner for acquisition of timber rights over such land in the prescribed form and manner – section 7(1) of the Forest Act. If the first Plaintiffs or Defendants and Silvania wish to conduct logging activities on Rarae/Tirotobo land, then they must first acquire timber rights over the said land in the prescribed manner. It is important to appreciate that the acquisition of timber rights and issue of a timber licence are governed by law in this country.

3.2 This raises the question whether there is evidence which supports the first Plaintiffs case that they have been identified as the persons lawfully entitled to grant timber rights over Rarae/Tirotobo land? The short answer is no. Whilst they rely on some decision of the High Court of Western Pacific Decree in the Native Land Appeal No. 5 of 1972, that has never been the subject of any timber rights determination before the Western Provincial Executive ("WPE") or ever brought to appeal before the Western Customary Land Appeal Court ("WCLAC") as a ground or reason supporting their claims of ownership over timber rights in Rarae/Tirotobo land. They did not appear at the timber rights hearing of 12 August 2002 and did not prosecute any appeal to the WCLAC. Their case therefore in so far as timber rights is concerned is non-existent. They have no legs to stand on, no timber rights agreement (standard logging agreement) on which they can rely on to support the licence of Silvania which they rely on. For that simple reason alone, the interim orders issued by this court on 24th October 2005 must be discharged forthwith with costs.

3.3 In contrast, the affidavit evidence in support of the Defendants case/claims, confirms the following matters:

(i) that the persons identified by the WPE as lawfully entitled to grant timber rights over Tirotobo land were the Defendants and not the first Plaintiffs;

(ii) that subsequently the Defendants together with Seri Hite executed the Agreement with Silvania in which the timber rights over Tirotobo land were transferred to Silvania;

(iii) that the timber licence A-10250 was granted by the Commissioner in favour of Silvania pursuant to the execution of the Agreement and hence explains the reason why the concession area was described as Tirotobo customary land. (Note the validity of that Agreement is not contested by the first Plaintiffs for the simple reason that if that Agreement should fall, then the licence of Silvania must also fall).

3.4 The answer to the first question/issue posed therefore is that there is clear affidavit material before me which enables me to find even at this interlocutory stage that the Defendants were the persons identified as being lawfully entitled to grant timber rights over Tirotobo customary land and not the first Plaintiffs and that the timber licence relied on by the first Plaintiff was actually issued pursuant to that Agreement. None of the first Plaintiffs were ever identified as persons entitled to grant timber rights over Tirotobo land.

4. The second issue raised regarding ownership rights over Rarae land or Tirotobo land is now the subject of a land dispute case registered before the Western Local Court. A land dispute case was referred to the Chiefs pursuant to the Local Courts Act by the first Plaintiff in March 2006 to determine their land rights. A decision had been delivered by the Marovo Council of Chiefs in favour of the Defendants. I am satisfied the first Plaintiffs have referred the matter further to the Western Local Court. That will accordingly be allowed to take its normal course through the "land courts"[1]. I accept there is now an issue regarding ownership rights over Rarae land.
   
5. This brings me to the third issue regarding what if any orders should be made?
   
   • 5.1 First, I am satisfied the Orders of this Court issued on 24th October 2005 must be discharged forthwith with costs. There is also another reason why those orders should be discharged and this relates to the non-disclosure of material facts regarding the issue of the timber licence and the Agreement. Had those disclosures been made at the hearing before this court on 10th October 2005, no interim restraining orders would have been issued.
     
   • 5.2 This raises another question whether the first Plaintiffs should be restrained from interfering with the contractual relationship as contained in the Agreement. I have considered that question but also note that is not sought in this application. It would also be dependant on the question whether the Defendants would be keen to continue dealing with Silvania from hereon. If they do so decide, then they are entitled to come back to court for restraining orders against the first Plaintiffs if their operations are disturbed. In the meantime, the second Plaintiff should cease to carry out any further logging activities without the express consent of the Defendants.
     
   • 5.3 Finally, it is only proper that the first and second Plaintiffs account for all logs by volume, species, quantity and price. Any proceeds of logs that have been restrained should be transferred to a trust account in the name of Solicitor for the Defendants forthwith and be subjected to further restraining orders pending determination of the land dispute between the parties. Any logs already felled may be exported with the express consent of the Defendants but that 20% of the gross proceeds should also be paid into the trust account of the Solicitor for the Defendants. Any Government dues should also be paid.
     
   • 5.4 On the question of costs, the Defendants are entitled to have all their costs to date paid by the first and second Plaintiffs.
     

Orders of the Court:

1. Discharge the interim order dated 24th October 2005 forthwith with costs.
   
2. Refuse order to strike out the first and second Plaintiffs’ Statement of Claim.
   
3. Unless with the express consent of the Defendants, the second Plaintiffs are to cease forthwith from carrying out any logging operations on Tirotobo customary land.
   
4. Unless with the express consent of the Defendants, logs already felled may be exported provided that any Government duties etc. are duly paid and that 20% of the gross proceeds shall be paid into a trust account in the name of the Solicitor for the Defendants.
   
5. Any proceeds of log exports from Tirotobo land currently held in trust by the second Plaintiff shall be transferred forthwith into the same trust account in the name of the Solicitor for the Defendants.
   
6. The first and second Plaintiffs are to provide an account of all logs felled and removed from Tirotobo customary land by quantity, volume, species and price within 21 days.
   
7. The costs of the Defendants to date are to be paid by the first and second Plaintiffs.
   

The Court.

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^[1] Note rights of appeal lie to the WCLAC and to the High Court on matters of law and procedural defects as set out by legislation.