Kololeana Development Company Ltd v Piasi [2007] SBHC 66; HCSI-CC 181 of 2007 (12 July 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 181 of 2007

KOLOLEANA DEVELOPMENT COMPANY LTD
(Trading As Viuru Forest Enterprise), 1st Plaintiff;
JOHN L. PETI, WILSON V. MAEKERA, J. PIZIKI, L. LILO, G. NAQU S. ROVE,
M. GASI, J. BAPU & J. LIKOTO (Representing Eqanqa Tribe) 2nd Plaintiffs; DELTA TIMBER LIMITED 3rd Plaintiff

-v-

J. PIASI, D. PIASI, O. RIZU, R. NAQU, J. NAQU, H. GHOTOKERA
& LILY DURI (Representing themselves)

Date of Hearing: 29 June 2007
Date of Ruling: 12 July 2007

Wilson Rano for the Respondent/Plaintiffs
Michael Pitakaka for the Applicant/Defendants

Ruling on application for interim injunctive orders stopping logging.

Brown, J: By summons dated 12 June the defendants and cross-claimants in this summons (who claim as representatives of Epanga, Dughore, Tusa, Korapa and Karovo clans in Kolombangara) seek injunctive orders against the three plaintiffs so named, to stop logging in the these clan land areas. They also seek an account of logs felled and exported from these customary lands as well as an order that the proceeds of sale be paid to the credit of a trust account. Ancillary orders were applied for and after discussion, Mr. Pitakaka (for these applicants) also sought to include in his summons, a claim to discharge my earlier interim order of the 18 May 2007 given ex parte on the plaintiff’s application. It can be seen that the interlocutory injunctive order sought was that which attracted court time, the other claims are for determination on trial.

That earlier interlocutory injunction was directed to restraining the defendants (hereinafter called "applicants") by summons of 12 June from blocking the plaintiffs from their business of logging the concession area. For the plaintiffs pleaded in their Statement of Claim that the 1st plaintiff held a logging licence no. TIM 2/34A dated 13 June 2002 covering Viuru Customary land, that such licence was changed to one numbered A10419 to expire on 28 October 2010 and that the 2nd plaintiff’s (determined as those entitled to grant timber rights) entered into a logging agreement with the 1st plaintiff on or before May 2002. The 3rd plaintiff is the contractor of the 1st plaintiff.

The statement further pleaded, that following renewal of the logging licence of the 1st plaintiff, those entitled to grant timber rights (the 2nd plaintiffs) executed a Supplementary Agreement dated 27 May 2005 with the 1st plaintiff and on the 21 March 2007 a second Supplementary Agreement.

The applicants, by their defence and counterclaim deny that the licence A10419 includes Epanga, Dughore, Tusa, Korapa or Karovo customary lands (the "lands in question") for such lands are not part of Viuru customary land. The applicants say that whilst licence A10419 was "purportedly in respect of Viuru Customary land where the (contractor Delta Timber) is currently carrying out logging operations above a piece of land shown as the "One An Half mile" bounded by Patupaele river course and Varu Point thence inland from the inland boundaries of the one and Half mile". The current logging work is quite far from the lands in question.

As a consequence the applicants (who claim as landowners and representatives of the named clans) raise two issues. They say that the land in question was never land contemplated to be included in the Viuru Customary Land by the grant of licence No. TIM 2/34A. Further there was no timber rights agreement affecting the land in question.

At the time of the ex parte injunctive orders which were returnable for further hearing today, I was satisfied of a prima facie case for such orders on the affidavit of John Kabolo sworn 9 May 2007 deposed to the fact of a valid licence. He spoke for the representatives of Epanga Tribe who support the licence of the 1st plaintiff to log. An undertaking as to damages was given in respect of the liability of the plaintiffs if the court should subsequently be satisfied that the plaintiff’s were not entitled to the orders sought and that the defendants had suffered damages as a consequence. I was also satisfied the plaintiff’s had made out a case that the defendants disruption, on its face, was illegal for the plaintiff’s claim through the licence presumed valid process.

The applicants deny both valid process and that the licence, claimed by the plaintiff’s to afford them right to log these "lands in question" actually includes such lands which are far from Viuru customary land dealt with in the licence..

In support the applicants relied upon the affidavit of Jackson Piasi sworn 12 June 2007. He claims as a member of those named clans of Nduke tribe. He is the secretary and advisor to Nduke tribal chief’s meeting and a member of the Ndughore and Epanga clan chiefs committee. He says that the "lands in question are not part of Viuru customary land". He says Viuru land so described by the plaintiff’s in John Kabolo’s affidavit (referred to above), at JK"1", relied on a Form I document (undated) by Kololeana Development Co. Ltd (Trading as Viuru Forest Enterprise) under the Forest and Timber Ordinance 1977 (Cap. 90) seeking timber rights;

"from Kolo Kari River to Rum Bay Hill down to Gevala Hill (Kakaro Ridge) to Kola Kari River, known as Viuru Land".

He says the lands in question are almost 12 kilometres away. By exhibit JK"5", John Kabolo annexed copy licence TIM 2/34A dated 13 June 2002 to Kololeana Development Co. affecting Viuru customary land. By that licence Viuru customary land is described as "Above one and half mile, Kolombangara Island".

Mr. Piasi identifies "the one and a half miles" by reference to an appeal decision of the Chiefs Justice of the Western Pacific, given on the 8 March 1973, where the Chief Justice describes the land in issue as;

"The land in issue is a square shaped piece of land lying on the western coast of Kolombangara. Its sides are equal and approximately one and a half miles long. It is bound by a line which commences at the mouth of the Patupaele river and runs north along the coast for one and a half miles to Varu Point, thence inland in an easterly direction for one and a half miles to the eastern boundary of Lot 8 of LR 598, thence south along that boundary to the Patupaele river and thence down the course of that river to the point of commencement at tis mouth. Both in the native court and in these proceedings the disputed land has been referred to as "the one and a half miles" and no doubt it will so be referred to locally in future "

The land has become so called "one and a half miles". The appeal judgment clearly delineates the land boundaries.

Later in the judgment the Chief Justice agrees with an earlier adjudication officers finding over Viuru tribes ownership of "the single block of land – (Viuru) – from Ruvi to Monga, from Kolodeo to Koloba and from Rano Mountain through Popete Mountain to Taroveala mountain"

"I come to the overall conclusion that the objectors (the appellant’s family) and members of the Viuru tribe have absolute right and authority and authority of ownership over the whole region as already described including Lots 5, 6, 7 and 8. Their sphere of influence over the whole region from generation to generation right down to the present generation was unbroken. The continuity of their occupation and settlement over the whole region starting from the bush right down to the coast since the time of Nakovala right up to the present time was also unbroken. No other tribes ever occupied or settled this region apart from the Viuru tribe. No subdivisions into separate plots of land have eve been known or made within this region. The area from Ruvi to Monga, from Kolodeo to Kolaba and from Rano mountain through Popete mountain to Tiroveala mountain is a single block of land owned by the members of the Viuru Tribe.

The flaw Mr. Piasi says, in the plaintiff’s argument is that the customary land claimed by the defendant clans of the Nduke Tribe do not fall within the Viuru customary land. He says there is no mention of Epanga, Dughore, Tusa, Korapa and Karovo customary lands in Mr. Kabolo’s affidavit. I should say that does not go to prove Mr. Piasi’s argument, for it is not uncommon for disputing tribes or clans to call parcels by different names. What is in issue, here is whether the "lands in question" are part of Viuru block included in original licence. I must say in the absence of any assistance from the proper officers of the Forestry Department to elucidate the situation and boundary of Viuru land so affected by the licences to log and the impossibility of reconciling the earlier verbal descriptions of the boundary of Viuru land with the various (and often unreadable) maps filed, the generous description of Viuru land in the Chief Justice’s earlier ruling raised the rebuttable presumption that Viuru land encompassed the lands in question.

However, Mr. Piasi points to the "Supplementary Agreement between Viuru Forest Enterprises and the Trustees of Epanga and Ndughore customary land (JK"7") as evidencing no connection with the other exhibits, JK "1"- JK "5", to Mr. Kabolo’s affidavit. Those exhibits, the Form 1; the Certificate of no appeal in relation to the timber rights finding over Viuru land made on the 26 April 1996; the Commissioner of Forests recommendation of the 4 May 2002 addressed to the Provincial Secretary (Western) recommending approval of the Standard Logging Agreements; the letter of the Kololeana Development Company dated 29 May 2002 to the Commissioner of Forests enclosing the executed Timber Rights Agreement "by the landowners"; and the copy licence no TIM 2/34A, all talk of Viuru customary land.

The exhibit, "JK 6" evidences copy logging licence no. A10419 dated 28 October 2005 in favour of Viuru Forest Enterprises (the trading name of the 1st plaintiff) describing the land to which the licence applies as "Viuru customary land as shown in the map (Above one and half mile; Kolombangara Island), Western Province". No Map formed part of exhibit "JK 6".

I am unable on the material in Mr. Kabolo’s affidavit to understand why the Commissioner of Forests saw fit to grant two licences apparently co-existing, over Viuru land, to the same licencee.

The Supplementary Agreement professed to be between Viuru Forest Enterprises and six named representatives," trustee representatives" and "customary owners" of Epanga and Ndughore customary land and inter alia recited that the company had completed and satisfied the Forestry Act requirements for a felling licence as well as the fact that the parties executed a Standard Logging Agreement and, desirous of "making an agreement to cover the said land, which is covered under a felling licence to cut, fell and remove timber TIM 2/34 A and to provide for matters not dealt or adequately dealt with by the Standard Logging Agreement". So the highlighted part again supports the rebuttable presumption that Viuru land encompasses the land in question.

It appeared from annexure "JK 5" that licence TIM 2/34 A, while nominating Viuru customary land as the land affected, did not exhibit a map as part of the licence, while the later licence No. A10419 did refer to "an attached map" which was absent from the annexure before me.

Curiously by a further Supplementary Agreement of the 21 March 2007, the six "trustee representatives" of Epanga and Ndughore were joined by three others (thus comprising all the named 2nd plaintiffs) in executing, (apart from a shortened recital) the same agreement as that Supplementary Agreement referred to above and dated 27 May 2005.

I should say that whilst the Agreement may recite the fact that the requirements of the Forestry Act had been satisfied, the applicants have put that in issue. The mere recital then is not proof of compliance with the requirements of the Forestry Act.

What is plain from reading both Mr. Kabolo’s and Mr. Ashad Teika’s affidavits filed on the plaintiff’s part, is that "representative trustees" of Epanga Tribe have agreed with Viuru Forest Enterprises for logging operations within Ndughore/Epanga land and Patupaele on Kolombangara, so the applicant/defendants assertion that no reference has been made by the plaintiffs to Epanga or Ndughore land is wrong.

The Commissioner of Forests letter of the 1 March 2006 Ref TIM 2/34 (annex "AT 4" to Ashad Teika’s affidavit of 9 May 2007) approving the Viuru Forest Enterprises year 2006 Annual Harvesting Plan clearly raises the presumption that the land to be logged is within an approved licence area and by reference, appears to be TIM 2/34. Mr. Piasi’s reliance on the earlier HC Appeal case (quoted extensively above) cannot, in the absence of some clear evidence from the Commissioner of Forests, for instance, to show delineation of Epanga block far from Viuru customary land, afford him help. The decision in 1973 does not either satisfy me that Epanga block is to be treated separately from Viuru customary land, or that it is relevant when considering the consequential effect of the timber rights process affecting Viuru in 1996, a process which afforded Kololeana Development Co (Viuru Forest Enterprises) timber rights over the parcel of customary land.

I have had the benefit of reading the later affidavit of John Kabolo. That affidavit does explain why the 1st plaintiff saw fit to enter into Supplementary Agreements for he says the 1st plaintiffs obtained timber rights from the 2nd plaintiffs who "are in custom owners, custodians, proprietors and trustees of Epanga, Ndughore, Tusa and Korapa lands otherwise known generically as Epanga and Ndughore lands". He says ownership of these lands and timber has never been disputed by any other tribes except Mr. Piasi. So the rebuttable presumption is now an issue.

He says Epanga and Ndugore Lands had been the subject of earlier acquisition proceedings by the Commissioner of Lands in the Protectorate of the Solomon Islands in 1968 when described as Lot 3 of L. R 598 on the plan of the Lands Department survey map 1556. For by lease agreement dated 22 December 1968 the Commissioner took a lease of the said Lot 3 for 25 years from 1st July 1968 for "timber cutting and other operations of a forest management or research nature".

For on a reading of that Appeal decision of the HC given by the Chief Justice on the 8 March 1973 it is apparent that the eight lots of LR 590 fell within Viuru customary land, and I have quoted part of the judgment, above dealing with the adjudication officers findings which found favour with the Chief Justice.

It consequently follows on the documentary proof afforded by the copy of advice of Regulation of Dealing; ("JK 1" to Kabolo’s 2nd affidavit) the Statutory Declaration of Joint owners made pursuant to s. 30 of the Land and Titles Ordinance (Cap. 56) ("JK 2"); and the copy Lease Agreement between the customary owners and the Lands Commissioner dated 22 December 1968 ("JK 3") that the land described as Lot 3 reverted, upon expiry of the 25 year lease, to the "joint owners" so named in that Statutory Declaration of the 22 December 1968, who held the land of the perpetual estate for the beneficial interest of the members of the named land-holding groups in accordance with their customary usages. The land then was customary land.

The 1st plaintiffs claim as the successors in title to those "joint owners" so named in the Statutory Declaration. This led to the Supplementary Agreements to the main Timber Rights Agreement. Now that main Timber Rights Agreement covering I presume Viuru timber rights has not been exhibited so it is not apparent who were named as actually clothed with the authority to deal with timber rights. Nor, on the material before me, is it clear which land area was actually affected by that original timber rights determination back in 1996 and out of which, presumably, the 1st plaintiff’s claim to be allowed to log arose. For the 1st plaintiff now distinguishes Viuru customary land from the "lands in question". By Mr. Kabolo’s most recent affidavit at para 10(b) he says;

"we do not say that these lands were part of Viuru Customary Land as we know from the outset the differences of ownership. That’s why we negotiated with the trustees. There are different trustees in respect of Viuru Customary Land and these trustees have also granted timber rights to the First Plaintiff"

So it would appear that those clothed with the authority to deal with timber rights back in 1996 were not in fact representative of the owners of "the lands in question". The earlier presumption under which the interim injunction given to the plaintiff’s assumed the encompassing reach of Viuru land has been undermined, if not rebutted by the plaintiff’s own concession.

This concession in the face of the Statement of Claim is a most important consideration. My power to make injunctive orders is discretionary and may be exercised in proper circumstances before findings of fact are made by the court.

The findings of fact which the plaintiffs obviously seek by their Statement of Claim, at para 5 are;

"5. The Second Plaintiffs were determined on April 26, 1996 as the persons and/or trustees entitled to the grant (sic) timber rights to the First Plaintiff and signed a logging agreement with the First Plaintiff sometimes on or before May 2002 (" the First Logging Agreement")".

For it is clear that the pleading at para 5 must relate to that Viuru land dealt with in the determination under the Forestry Act back in 1996.

What has become equally clear by Mr. Kabolo’s concession is that the "lands in question" have been treated separately by the 1st plaintiff for the 2nd plaintiffs plead in the Statement of Claim, not only rights by virtue of that determination back in 1996 but independent rights as "owners in custom and representatives of the landowning tribe of Epanga". Those independent rights, exercised by the First Supplementary and Further Supplementary Logging Agreement with the 1st plaintiff, are relied upon, in terms of those Agreements which I have touched on above, to justify the 1st and 3rd plaintiff’s right to log in the lands in question. That is now explicit from para 10(b) of Mr. Kabolo’s affidavit.

The 2nd plaintiffs, then do not appear to claim as successors to those persons determined back in 1996 to be clothed with the right to assign timber in so far as the right affects the lands in question, but rather as current land trustees of that particular land which is conceded to be separate to Viuru land, the subject of the original Forestry Act enquiry and determination.

Mr. Kabolo says, at para 10(a) of his most recent affidavit that there is no need to conduct timber right acquisition proceedings in relation to the land in question for he says such land was the subject of timber right acquisition in 1968, and as such they are exempt from the normal proceedings of the Forest Act.

That assertion of law is wrong. The leasehold acquisition proceedings by the Commissioner of Lands affecting Lot 3 LR598 were proceedings under earlier legislation, the Land and Titles Ordinance (Cap. 56) which by amendment and consolidation became the Land and Titles Act (Cap. 133) which came into operation on the 1 January 1969. The Commissioner of Lands interest in Lot 3 fell to be determined in accordance with Part III of the Act, and with the expiration of the lease hold interest, shall fall to be determined in accordance with that part of the Forestry Act. What appears to have been overlooked is that, upon coming into operation of the Forest Resources and Timber Utilisation Act (Cap. 40)(the "Forestry Act") on the 10 October 1970, a new regime was created for forestry and logging affecting land. That regime in effect codified the business of logging on custom land and consent to negotiate with the appropriate government and the owners of such customary land were a pre-requisite under the Act. There has been no material illustrating compliance with the Forestry Act in so far as consent to log the custom "lands in question" is concerned. It is immaterial what arrangements were previously made back in 1968 for the felling of timber since the coming into operation of the Forestry Act requires any person seeking to carry on business as a timber exporter or sawmiller to comply with the Act.

The 1st plaintiff since 1996 seeks to rely on its compliance with the Act in so far as Viuru customary land is concerned, but on the material which I have touched on, there is a presumption raised but rebutted on its own concessions that it has not complied with the requirements of the Act as it affects the "lands in question". While asserting it has dealt with the representatives and owners in custom of the "lands in question", it has explicitedly conceded that it does not need to follow the process of the Forestry Act for that "they are exempt from the normal proceedings of the Forestry Act" (Kabolo’s 2nd affidavit, para 10(a)) I find that assertion, on the facts that have been shortly argued before me, wrong in law.

I come now to the submissions of counsel. Mr. Pitakaka for the applicants pointed to the absence of a copy of the original standard logging agreement between the 1st and 2nd plaintiffs an absence which I have addressed, above. He also says the 2nd defendants claim as trustees of ‘registered land", a claim at odds with the original Statement of Claim but I find these has been no material to show registration as such, to take the "lands in question" out of the custom land regime.

Mr. Pitakaka’s argument on why I should exercise my discretion may be shortly stated.

He says, on the Defence document that has been filed, triable issues have been disclosed for that there has been an apparent breach of the requirements of the Forestry Act as it affects the "lands in question" for right to log has not been shown in accordance with the statutory process. Rather the plaintiffs rely on the Supplemental Agreements.

When the court addresses whether "damages" would be sufficient in these circumstances, Mr. Pitakaka urges me to realise that by allowing logging, the forest will be destroyed.

His clients offer no undertaking as to damages (as is usually necessary in discretionary claims injunctive orders) on the authority of an earlier Court of Appeal decision of Kalena Timber Co Ltd v Labere (2002) (Appeal Case 12/2001) where the Appeal Court found exceptional circumstances justifying the absence of a requirement to provide an undertaking.

He also addressed the applicants "standing" for it was in the pleadings and affidavits read, clear that the applicants were members of the clans claiming rights to the "lands in question" and whilst the ownership question remains, that issue is not one justiciable in any event in this court. I am satisfied the applicants have sufficient standing for their claim has, as an incident, objection to the very claim of right to represent all landowners in terms of s. 8(3) of the Forestry Act impliedly put forward by the 2nd plaintiff’s in terms of the Supplementary Agreements. For the applicants say the mandatory statutory process required under the Forestry Act has not been followed and consequently the 2nd plaintiff’s cannot circumvent the Act in this fashion.

I’m satisfied, for the reasons I have earlier given that there appears, prima facie, to be a failure to follow the codification of laws requiring particular steps set out in Ss. 7 & 8 of the Forestry Act, before valid licences to log the "lands in question" can be granted. The absence of assistance from the Commissioner of Forests leaves that as a live issue.

I’m further satisfied the applicants have sufficient "standing" for those reasons above. It is not sufficient as Mr. Rano so strongly argued, to point to the applicant’s failure to prove or evidence proof of ownership in the "lands in question" as disentitling them to complain. The focus of the legislation dealing with logging is the need to identify those able to represent landowners and those entitled to grant timber rights. It is only incidentally concerned with ownership in that sense and the enquiry by the Provincial executive is predicated on the express terms of s. 8.

In the suggested absence of a proper determination following meetings envisaged by S. 8, the assertion of rights by the 2nd plaintiff to represent, as trustees, all landowners of the "lands in question" cannot extinguish other clan-owners entitlement to be heard on the question of willingness to negotiate for the disposal of timber rights in accordance with the statutory regime. For that is part of the function of the meetings envisaged under S. 8. The applicants have satisfied me of an apparent failure to follow that process especially in the light of the concession of the plaintiffs.

"Standing" if you like, of the persons able to grant timber rights relies, not on assertions of ownership but a determination in accordance with S. 8 (b) of the Act. So where that determination is doubtful, clan members of the "lands in question" have a sufficient interest to complain.

I trust there is illuminated the very issue to be tried if this matter goes to trial.

In the interim and pending further order, in the exercise of my discretion I grant orders in terms of 1 & 2 of the applicant’s summons filed on the 12 June 2007.

The remaining claims are not appropriate to be the subject of orders, pending a final hearing of the issues.

It would be appropriate since I have accepted the applicant’s right to be heard on the issue of whether or not logging has lawfully been carried out in the lands in question, that the earlier interim injunction requiring the applicants to desist from preventing such logging, be discharged. I so order the discharge of those earlier injunctive orders.

Costs shall be reserved.

THE COURT