Tetina Timber Enterprises v Aola Timber Export Agency [2007] SBHC 34; HCSI-CC 446 of 2006 (18 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 446 of 2006

TETINA TIMBER ENTERPRISES & PACIFIC METRO LIMITED

v

AOLA TIMBER EXPORT AGENCY, SINO CAPITAL (SI) LIMITED AND ATTORNEY-GENERAL

Date of Hearing: 9th May 2007
Date of Ruling: 18th May 2007

B Atomae for the 2nd Plaintiff
P. Tegavota for the 1st plaintiff
P Lavery for both the Defendants
(Attorney-General not present)

RULING on summons for declarations confirming right to log

Brown, J: By statement of claim the plaintiff, the holder of a logging licence issued by the Commissioner of Forests seeks declarations of this court that its licence is valid for and includes timber on Paravu customary land and consequently the 1st defendants logging licence does not include timber on Paravu customary. The 2nd plaintiff is the logger contracted by the 1st plaintiff, a company which has, by virtue of its licence to log, engaged the 2nd plaintiff for that purpose.

The plaintiffs’ obtained by ex parte order, injunctive orders stopping the defendants from further felling and on the 15 March last, those injunctive orders were, by consent, varied in material respects pending further hearing of the summons. That summons was specially fixed for hearing on Wednesday 9 May when Mr. Lavery appeared for both defendants.

When called on for hearing, Mr. Etomea appeared for the 2nd plaintiff and sought an adjournment on the grounds that his principal, Mr. Gabriel Suri had carriage of the matter and was away overseas. Mr. P. Tegavota, the lawyer on record for the 1st plaintiff, did not appear. There was no appearance of the Attorney-General.

By letter of the 2nd May, Mr. Suri wrote to the Registrar of the Court advising of his intended absence and seeking to have the hearing vacated to a date in June. The letter was copied to Mr. Tegavota (for the 1st plaintiff), and the General Manager, Pacific Metro Ltd. (the 2d plaintiff). The Registrar did not respond to the letter and Mr. Lavery does not consent to the adjournment.

It has been the practice in the past, before my appointment, to allow such vacation of hearing matters as a matter of course but I have endeavoured to extinguish the practice for it is a bad practice, usurping the courts control of its listing and putting other parties to inconvenience and cost which often cannot be covered by orders of the court.

To presume the court will allow this cause to be vacated, as Mr. Tegavota appears to have done, is also wrong. Mr. Lavery, who was not given a copy of the letter to the Registrar, opposes the application.

Mr. Etomea’s application is refused. Where counsel as in this case, is present it is expected that such lawyer will properly brief himself to afford his client professional services to which the client is entitled under its agreement with the lawyer and which the court expects once an appearance by a "court officer" is made on a parties behalf. The summons had specially been set down for hearing today for that was an underlying reason which gave rise to consent orders continuing the injunctive orders adversely affecting the defendant’s commercial interests, since this early trial date would lessen the loss of the defendants.

I consequently directed the hearing to proceed. I advised counsel, in the face of the unprepared manner in which Mr. Etomea appeared before me, (despite the time available since the principal’s letter was written in which to understand his clients cause) that I proposed to read the plaintiff’s material in support of its claim. Mr. Lavery read the affidavits of Gary Cheah Kong Chong, the CEO of Sino Capital (SI) Ltd and Daniel Tubara, a Chief of the Ghaobata tribe and a principal landowners of the area about which the dispute has arisen. I have also had the benefit of the pleadings for a Defence and Counterclaim has been filed.

The facts may be shortly stated by reference to the Defence for the defendants admit the 1st plaintiff holds a logging licence No. A10377 affecting Gilu, Bebela, Kolobilo, Paravu and Saula customary lands, but deny the licence was lawfully issued and in particular was invalid in so far as it purports to affect Paravu land, for that parcel was only included at the Form IV stage of the procedures of the Forest Act. The 1st and 2nd defendants claim rights to log in terms of their licence covering Vulamao land which is claimed by Daniel Tubara. Mr. Tubara says, at para. 9 of his affidavit that "to my personal knowledge "Paravu" is not the name of a separate land area. It is the name of a stream which forms part of the boundary between Vulamao land and a land area called "Tendesamu land". I cannot swear to the identity of the owners of that land".

The suggestion by the defendants is that Paravu" land is not a formed parcel but in fact part of Vulamoa land. I do not have to decide that question, nor can I for it goes to a question properly for the landowners in the area, and failing agreement, the Chiefs.

But the defendants also point to documentary evidence which they say proves beyond doubt that the parcel "Paravu" was included in error in the plaintiffs licence description and was never part of the earlier process to determine landowners (of particular land the subject of the timber rights hearing) able to grant timber rights.

That documentary evidence I am satisfied raises a presumption of irregularity for that the licence would seem to include land which the Commissioner of Forests says was included half way through the timber rights acquisition process

Re: Paravu customary land – East Guadalcanal

Your letter of 14 March 2007 regarding the above subject matter refers.

I hereby wish to confirm as follows:

1. There is no record of Paravu or Vulamao customary lands included in the initial application or appeared in the timber rights determination for Tetina Enterprises Ltd. Conferred by the Guadalcanal Provincial Executives on 28/1/04.

2. The controversial Paravu customary land surfaced on 4 May 2004 when the Guadalcanal Provincial Executive endorsed and approved the Standard Logging Agreement which has been duly signed and returned in a form of a prescribed Form II. Hence, Paravu land is included with other lands.

3. On 24 May 2004, a felling licence was granted to Tetina Enterprises Ltd to also cover Paravu land.

I am of the opinion that the inclusion of Paruvu customary land half way through the timber rights acquisition process does not comply with the requirements of section 7, 8, 9, 10 & 11.

Yours faithfully,
Gordon Konairamo
Commissioner of Forests
For: Permanent Secretary
Department of Forests, Environment and Conservation

Exhibit "F" to the affidavit of David Thuri, (the Managing Director of the 1st plaintiff) is the plaintiff’s licence No. A10377 issued on the 24 May 2004 and is drawn so as to affect customary land at "Gilua, Bebela, Kolobilo, Paravu and Saula," Guadalcanal.

In the face of the Commissioner’s letter of the 23 March 2007 (quoted above) while not primary evidence, a sufficient doubt has been created to undermine the plaintiff’s entitlement to maintain the injunctive orders.

The plaintiff’s have been put to proof in the pleadings of the claim to that customary land’s timber. The plaintiffs’ licence to log Paravu is denied.

Form reading the Commissioner of Forests letter to Aola Timber Export Agency dated 30 December 2005 it is clear that the Commissioner was concerned that Sino Corporation may risk exceeding the ambit of its licence to log lands in Paripao Ward 17; Tenakagho, Ata, Ao’o and Tavatogha customary lands. On the 7 December 2005 the Commissioner wrote to the Director, Aola Timber Export Agency advising that extension of the licence TIM2/45 in April 1996 into other areas including Sibiro land "was cancelled by the High Court (cc 18/02) on 17 November 2005. Approval was by letter granted to Aola Timber to engage Sino Capital Solomon Islands Ltd to carryout harvesting and extraction of timber (logs) as well as marketing functions under the licence.

On the 19 December 2005 by Memorandum to the Commissioner of Labour the Commissioner of Forests, after detailing the landing of logging equipment about Aola and Geza village, sought the Commissioner of Labours’ assistance to "stop such (illegal) practice".

No proceedings by the Commissioner of Forests or the Commissioner of Labour seeking this courts assistance to "stop practices" have been alluded to in this case.

I am left then with assertions by the plaintiff as to "practices" which may or may not be illegal on the defendants’ part, but which practices are the province of the Forestry and Labour, presumably to administer. Such assertions give the plaintiff no cause of action here, to support its injunction without proof of adverse findings by a body exercising authority under the FR&TU or perhaps the Labour Act. I am also left with the presumption that the plaintiff’s right to log Paravu in terms of its licence, may not stand when I read the Commissioner of Forests letter of the 23 March 2007 to the Chief Executive Officer of Sino Capital (SI) Ltd.

It is discretionary whether or not I continue the injunction. Having considered all the material read by the parties in their respective argument, I am not satisfied any good purpose may be served by continuing the injunction. The plaintiff’s standing to maintain the injunction is doubtful in the light of the Commissioners’ letter and on a reading of the affidavits of Daniel Tubara and Gary Cheah Chong.

I accordingly refused to exercise my discretion to continue the injunctive orders. They are discharged herewith. Before the cause seeking declarations is set down for hearing, I direct that a Certificate of Readiness with its commensurate obligations be filed.

THE COURT