Lakevu v Lilo [2007] SBHC 92; HCSI-CC 226 of 2007 (19 July 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 226 of 2007

DEDI LAKEVU
(Representing his Lakevu family Clan Members of Viuru Tribe)

-v-

HONOURABLE GORDON DARCY LILO, MP
AND LUMA DARCY
(Trading under the firm, name or style of
Viuru Forest Enterprise),

DELTA TIMBER LIMITED
AND COMMISSIONER OF FORESTS
(Representing by the Attorney-General)

(Brown, J)

Date of Hearing: 19 July 2007
Date of Ruling: 19 July 2007

Michael Pitakaka for the Applicant/Plaintiffs
Wilson Rano for the1st and 2nd Respondent/ Defendants
Daniel Damilea for Attorney-General representing the Commissioner of Forest for the 3rd Respondent/Defendant

RULING ON SUMMONS FOR INTERLOCUTORY INJUNCTION PENDING SUIT OVER LOGGING.

Brown, J:

1. The plaintiff claims as representative of Lakevu Clan Members of Viuru Tribe by summons for interim injunctive relief to stop logging of customary land “above the One And Half Mile bounded by Patupaele River course thence inland wards and Varu Point thence inland from the One and Half Mile inland boundary”.

2. By Statement of Claim (para. 12) the plaintiff pleaded that a Consent Order (which he had executed but denied as non est factum) purported to grant timber rights over the land “above One and Half Mile” which land was not the subject of any timber rights hearing.

3. The plaintiff pleaded that he had been determined by the Western Provincial Executive as one of the “trustees” entitled to represent those entitled to grant timber rights in respect of the One and Half Mile.

4. The application under s. 7 of the Forest Act or Form 1, was instituted by Elite Enterprises (SI) Ltd and led to the timber rights hearing by the Executive as recorded in the Executives minutes dated 15 September 2004. In those minutes the plaintiff is recorded as having

“confirmed signing the letter of consent on behalf of Viuru Tribe. The reason being that the court decision was in his favour that the one and half mile to the bush belong to this tribe, the Viuru Tribe and one and half mile down to coast has been given to Ghomo and Kiuvai Tribe to occupy and use. Base on the court decision, Viuru Tribe being the principal landowner of Viuru land inclusive of one and half mile and the right to sell trees and other properties within one and half mile strip of land gave his consent to the logging application as submitted by “Kiuvai Tribe”.

5. The application for the injunction does not relate to One and Half mile but land adjacent, in the words of the summons, land “above the One And Half Mile”.

6. Mr. Rano, the 1^st and 2^nd defendants representative, says the plaintiff has no standing to impugne the fact of a logging licence affecting Viuru land. Viuru inland was the subject of earlier Executive decision. The Deed, in fact led to the settlement of an appeal lodged, not by the plaintiff in these proceedings, but by the Honourable Gordon Darcy, whereby the settlement was incorporated in a “consent judgment” given by the Western Customary Land Appeal Court dated 8 July 2005.

7. The consent judgment named Kiuwai/Viuru land as One and Half Mile; there is no issue with the interchangeable name in this although I propose to use “One and Half mile” to avoid confusion.

8. The CLAC recited the fact of the appeal, read the affidavit of the appellant Gordon Darcy and information by John Ghomo, Hetley Ghomo, Deddy Tee, Cherry Panda, and Collin Piokera. It also took account of the Deed of Settlement filed with the Court.

9. The plaintiff did not exhibit the Deed of Settlement in his case although he now seeks to resile from it. In the absence of the deed, it is not permissible for this court to presume the deed would advantage the plaintiff’s claim to stop logging in land not the subject of appeal proceedings about “One and Half mile” which were settled.

10. The CLAC found timber rights in 9 named persons, including the plaintiff and Gordon Darcy Lilo, both of the Viuru Tribe. Those timber rights related to the One and Half mile land. The 9 land trustees included representatives of Ghomo Clan and Viuru Tribe.

11. It is accepted by both the plaintiff and the defendant Gordon Darcy Lilo, that Viuru land encompasses One and Half Mile and, in terms of a decision of the High Court of the Western Pacific given on the 8 March 1973, Viuru land extends “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. It is consequently plain, because of the occupying rights acquired by Gideon Ghomo (Ghomo Clan) before the date of the Appeal Court decision dated 8 March 1973, that the Ghomo Clan representatives were party to the Viuru Tribes” consent judgment by the CLAC of the 8 July 2005.

12. The One and Half Mile has been logged out. The plaintiff has benefited financially from such logging. Numerous payments were evidenced by payment vouchers and receipts by “Deddy Lakevu” (GDL “2” to affidavit of Honourable Gordon Darcy Lilo sworn 27 June 2007).

13. Whether the Deed of Settlement was expressed to deal with timber rights over land other than One and Half Mile is not know. What is plain is that the plaintiff’s complaint about the Deed of Settlement as somehow affording him standing to prevent logging “above one and Half Mile” is not made out on the material before the court.

14. That material of the plaintiff is wholly about “One and Half Mile”. The claim for injunctive orders relates to other land.

15. Mr. Rano refers the court to the associated proceedings cc181/2007 where argument was heard over Viuru land and a ruling made on an application for interim injunctive order. The evidence in that case was known to these parties especially the plaintiff for the decision was handed down on the 12 July. Mr. Pitakaka was counsel in that case also. In those proceedings a representative of Epanga Tribe John Kabolo deposed in his affidavit of the 9 May 2007 in support of Viuru Forest Enterprise’s right to log under licences affecting Viuru land. That evidence was read by Mr. Rano in his client’s case.

Those licences TIM 2/34A dated 13 June 2002 covering Viuru and one numbered A10419 (to expire 28 October 2010) also affecting Viuru land, effectively deny this plaintiff’s argument to stop logging. No criticism in these proceedings has been levelled at these licences of the defendant, Viuru Resources.

16.There is clearly an issue over the plaintiff’s standing in this case, for assertion as a landowner is insufficient to displace the plain right to log Viuru land evidenced by logging licences (Steven Veno anor v. Oliver Jino anor Court of Appeal Judgment of 12 April 2006). I am not satisfied the plaintiff can succeed with this injunction application; while that is a live issue the defendants are entitled to the presumption of regularity and rely on their licences. Much time has passed since the licences issued. The plaintiff has taken no steps to impugn those licences.

17. The plaintiff’s claim that damages will not be an adequate remedy when the trees are felled and the environment so damaged must sound hollow when he has benefited from the logging to date. That, while a relevant consideration in injunction applications, cannot help the plaintiff here.

18. Where I have been unable to see any basis for the plaintiff’s claim to stop logging in Viuru land “above One and Half Mile” except for his assertion as a member of the Viuru Tribes, no question of the balance of convenience arises, for no arguable case has been shown.

19. The plaintiff’s argument over “One and Half Mile” in the light of the fact of the consent judgment wherein he was a named trustee and beneficiary; the financial benefits he received from that logging and his denials of his deed now so long after the event; an argument as somehow supporting his claim to now stop logging in other land, does not incline me to consequently find any arguable case in relation to that other land. To the contrary, it would seem to be somewhat spurious as it now stands.

20. I refused the application on the day, I now publish my reasons.

THE COURT