Pou v Tropical Forests Ltd [2006] SBHC 49; HCSI-CC 452 of 2004 (22 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 452 of 2004

GEORGE POU AND NOEL SALINI
(Representing the Pughu Clan of the Gaobata Tribe of Ngella)

-v-

TROPICAL FORESTS LIMITED, DALGRO (SI) LIMITED, CHARLES SORO, JOHN SOGILO, WARREN GUIGUI, ABRAHAM PISU, JOHN SINI AND SAMUEL BALEA (Representing the Vunavunagi Clan Hongokama Tribe) AND ATTORNEY-GENERAL (Representing the Commissioner of Forests)

Date of Hearing: 22 September 2006

Date of Ruling: 22 September 2006

Mr. Thomas Kama for the Plaintiff/Respondent
Mr. Wilson for the Defendant/Applicants

RULING

Brown, J: This summons filed on behalf of the 1st, 2nd and 3rd defendants seeks orders releasing from moneys set aside in a trust account to abide the final decision of the court, the reasonable operating expenses of the 1st defendant when it harvested logs in the disputed area. The Plaintiffs claim that the logs harvested and sold overseas were not logs that should have been taken.

Mr. Kama has read Mr. Douglas’ affidavit in support. Mr Douglas is a direct of the logger Dalgro (SI) Ltd, the 2nd named defendant...

The affidavit sets out details of the FOB price of the logs shipped on the MV. Elizabeth and other details so that it can be calculated from costing just what the reasonable operating expenses or out of pocket expenses of the 1st defendant, the licence-holder, were.

So in effect the 1st, 2nd and 3rd defendants seek to recompense themselves from the moneys set aside as representing the value of the logs taken.

The defendants say that the logger Dalgro in good faith accepted work from Tropical Forests Ltd, the company which had the agreement of the 3rd defendant, the landowners purporting to grant timber rights affecting this particular parcel of customary land. Therefore the logger is not involved, as it were, in the crux of the dispute between the plaintiffs (who claim the rights to the logs taken) and the 3rd defendant. Consequently it is argued, the expenses, (at least of the 1st defendant or more properly the cost of logging) should be released to the logger. To delay such release would be unfair. The expenses sought do not equate to the whole amount of the contract sum which the logger could reasonably expect from its contract with Tropical Forests Ltd. For by paragraph 6 of Mr. Douglas’ affidavit it appears the logger, Dalgro might expect its contract price of 60% of the log sale proceeds to be paid it.

This is however, the issue between Dalgro and Tropical Forests Ltd. Those two companies have by virtue of their own contract touched on in that paragraph 6, an agreement by terms which may or may not be affected were Tropical Forests Ltd to be stopped from its expected benefits from logging this particular customary land parcel. That agreement remains unaffected by the proceedings before the court for that agreement is not in issue. What is happening between the 1st and 2nd defendants in so far as their "Technology Transfer Agreement" dated 4 October 2004 need not concern me. But to plead, as Mr. Kama does, the fact that the 1st defendant should recover its costs of expenses of logging this land because of the contractual entitlements of the logger to the "Technology Transfer Agreement" is no basis for me to interfere with the original order setting aside the proceeds of the sale of the logs to abide the decision on the original claim.

Any argument between the 1st and 2nd defendants relating to the cost of logging is a separate issue to the cause of action before this court and is not sufficient reason to interfere with the earlier order.

I refuse to make the orders sought.

The summons is dismissed. The plaintiff shall have its costs of the summons.

THE COURT