Tropical Resources Development v Success Company Ltd [2006] SBHC 98; HCSI-CC 026 of 2006 (3 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 26 of 2006

TROPICAL RESOURCES DEVELOPMENT AND JOHN BAGHE
(Representing the Landowners from Seketao to Binu Land)

-v-

SUCCESS COMPANY LIMITED

(Mwanesalua, J.)

Hearing: 28th February 2006
Ruling: 3rd March 2006

P. Tegavota for the Plaintiff
G. Suri for the Defendant

RULING

Mwanesalua, J: There are two applications for consideration by the court. The first is an inter partes hearing of an ex parte application by the Plaintiffs, heard by this court on 3rd February 2006. That ex parte application was successful. The Plaintiffs obtained interim injunction restraining the Defendant, its servants, agents, employees and persons authorized by it from dealing with Seketao, Sonia, Tunava, Kio, Betavavala, Tautabula, Gaubata, Binu and Sonisavu Kakau Customary Lands on Ngella Island.

The second application is by the Defendant seeking, inter alia, that the ex parte orders obtained by the Plaintiffs on 3rd February 2006 against it be set aside in their totality. The applications are interrelated and so I will deal with them together.

The First Plaintiff was issued with logging licence No. TIM 2/121 by the commissioner of Forest Resources on 22nd February 1999. This licence was extended by the Commissioner on 23rd January 2004. This extended licence covered seventeen blocks of land, inclusive of Sonia Land. The First Plaintiff signed the Logging Agreement regarding Sonia land as approved by the Central Islands Provincial Executive with the customary landowners on 22nd January 2004. The First Plaintiff and the Defendant signed a Logging Management contract on 19th March 2004, for the Defendant as the Contractor, to carry out logging on Sonia and other lands not concerned with these applications. On 14th November 2005, the Defendant landed its machines and logging equipment on Seketao Land, and constructed a log pond and camp site there. The Defendant then entered and logged Sonia land. After that, it proceeded to carry out logging on Tunava, Kio, Betavavala, Tautabula, Sopia, Binu, Gaubata and Sonisavu Kakau Customary Lands. On 1st February 2006, the First Plaintiffs filed their Writ of Summons and Statement of Claim against the Defendant. They claimed, among other things, payment of the value of the logs extracted from Seketao, Sonia, Binu, Tunava, Kio, Betavavala, Tautabula, Sopia, Gaubata and Sonisavu Kakau lands and damages for trespass on those lands. The Plaintiffs also filed their ex parte summons on 1st February 2006.

There is dispute between the Plaintiffs and the Defendant as to the true Owners of Sonia Land. There is further dispute on whether Seketao, Betavavala, Tunava and Kio lands are part and parcel of greater Sonia land. This court does not have jurisdiction to deal with these issues. The determination on the ownership of Sonia land and whether Seketao, Betavavala, Tunava and Kio land are part of greater Sonia land as alleged by the Defendant are issues to be determined by the Chiefs, the Local Court and the Customary Land Appeal Court in their respective jurisdictions. (See for instance Gandly Simbe-v-East Choiseul Area Counsel, Egon Resources Development Company Ltd, Steven Taki and Peter Madada (Civil appeal No. 8/97 and John Osiramo-v-Mezaech Aeounia (HC Civil Case No. 020/2000).

The Plaintiffs alleged that the Defendant’s logging operations on Seketao, Binu, Kio, Betavavala, Tautabula Sopia, Binu, Gaubata and Soniasavu Kakau Lands are illegal. This is a triable issue which can be decided after hearing full submissions from Counsels at full trial of this action.

The Defendant contended that the second Plaintiff lacked locus standi to represent the Mogokikui, Gaubata and the Hogokama tribes in this application. The second Plaintiff is a member of the Hogokikigunu tribe. The disputes in this case concerns ownership of customary land and interests. There is no evidence before this court that the second Plaintiff is entitled to represent those tribes according to law (see Order 17 Rule 8 of the High Court Civil Procedure Rules).

The Plaintiffs have not demonstrated their locus standi to enable them to come to this court at this stage to pursue their rights and the rights of the tribes whom they have claimed to represent regarding Seketao, Sonia, Binu, Tunava, Kio, Betavavala, Tautabula, Sopia, Gaubata and Sonisavu Kakau Customary Lands. I think it would not be just and proper to allow the ex parte orders granted on 3rd February 2006 to continue. They are accordingly discharged.

Counsel for the Defendant had not addressed the court about the nature of the loss suffered by the Defendant as a result of the ex parte injunction. However, I have considered the orders sought in the Defendants summons filed on 22nd February 2006. I grant orders 1, 2 and 6 of the summons.

The Orders of the Court:

1. The ex parte Order made on 3rd February 2006 is discharged on the basis that:

(a) this court lacks jurisdiction to deal with customary issues concerning land ownership and boundaries, which are matters for determination by the Chiefs, Local Court and Customary Land Appeal Court;

(b) the issues about the legality of the Defendant’s logging is a matter to be determined at full trial;

(c) there is no evidence that the Second Plaintiff is entitled to represent the tribes he claimed to represent pursuant to order 17 rule 8 of the High Court Civil Procedure Rules.

2. That the orders sought by the Defendant in paragraphs 1, 2 and 6 of its summons are granted; namely:

(a) that leave is given to the Defendant for abridgment of time;

(b) that ex parte order imposed by this court on 3rd February 2006, is set aside in totality;

(c) costs of and incidental to this application are to be paid by the First and Second Plaintiffs on indemnity basis.

Francis Mwanesalua
Puisne Judge