Kikile v Kalahaki Ltd [2008] SBHC 18; HCSI-CC 431 of 2007 (1 May 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 431 of 2007

Daniel Kikile and Jack Hanigaro
(for and on behalf of the Lakuili Tribe)
Claimants

v.

Kalahaki Limited
First Defendant

AND

Organic Earth Company
Second Defendant

AND

Attorney-General (on behalf of the Commissioner of Forests)
Third Defendant

Date of Hearing: 20th March 2008
Date of Judgment: 1st May 2008

Pacific Lawyers for the Claimant
Bridge Lawyers for the first and second Defendants

Palmer CJ.

On 20th November 2007 this Court granted interim orders inter alia to restrain any further logging activities in Talalu customary land until trial or further orders of the court. The matter was then adjourned for inter partes hearing to 10th December 2007 and further to 20th March 2008.

The claimants assert that they are the rightful representatives of the Lakuili Tribe which claim ownership rights in custom over the Talalu customary lands. These consist of Talalu 1, Talalu 2 and Talalu 3 (“the Talalu land”). The Talalu land comprises fifteen blocks of land:

Kotaoa, Takikina, Tadiki, Kovaga, Laohahau, Vaqulu, Laotato, Konakaho, Talaluabuti, Laokakauha, Bolihuna, Mahusi, Tselave, Konagema and Tsavuksata.

They say that a timber rights hearing was conducted by the Geana Area Council on 16 November 1994 in which Reuben Chonivatu, Daniele Kikile (one of the claimants) and Jack Hanigaro (another claimant) were determined to be representatives of the landowners over the Talalu land. They say they have not granted any timber rights over their land to the first defendant, Kalahaki Ltd (“Kalahaki”) and the second defendant, Organic Earth Company (“Organic Company”).

The first and second defendants (“the defendants”) say on the other hand that the area between Kujuku River and Hoilava River were previously under the timber licence of Dalsol Limited (“Dalsol”). Dalsol had acquired a timber licence TIM 2/9 in or about 1994 over that area. That licence however lapsed in 1997 and a fresh application was made for a new licence by Kalahaki on or about 14 October 1997 over the same area. This was approved following the submission of a list of landowners comprising the same list of persons who had previously granted timber rights to Dalsol in its earlier application. A timber rights agreement subsequently was entered into with those landowners on or about 11 November 1998. On 27 September 2004 a timber licence no. Tim 2/67 was issued in favour of Kalahaki. The Talalu land was expressly included as being within the concession area of that licence. However, the claimants have pointed to a discrepancy in the names of the representatives of the landowners who had signed the timber rights agreement. They say it did not contain the names of the representatives of the landowners over Talalu land or the fifteen blocks of land[1] within the Talalu land. They say that none of those identified have rights over the Talalu land or were entitled to grant timber rights. The defendants seem to be saying though that those landowners who signed the agreement had right to do so. The names of the lands which those twenty three representatives have signed under however do not seem to include the Talalu land. This raises the question as to how and why those fifteen blocks of land were included in the licence of Kalahaki. This raises a serious question to be tried. It is not quite clear on the material before me that the landowners who signed the timber rights agreement did so on behalf of the Talalu land as well.

The claimants who assert timber rights ownership over those fifteen blocks of land have denied granting any to Kalahaki. That there is a triable issue therefore is without question in this case. I am satisfied there is a serious question[2] to be tried regarding ownership rights over the timber in the Talalu land and whether those rights had been validly acquired by Kalahaki. This in turn raises the validity of the timber licence in so far as it purports to cover the Talalu land. I am satisfied there is a triable issue in respect of that matter. I am also satisfied there is an issue over boundary as well.

The claimants have filed evidence of extensive damage and interference with their timber rights and land and it is clear if they win their case at the end of the day, irreparable harm and damage will have been caused if no interlocutory injunction is made. Monetary damages alone will not be adequate to compensate them for their losses.

The balance of convenience argument weighs in favour of the claimants and in favour of the restraining orders to continue.

Do the plaintiffs need to demonstrate proof of entitlement in custom to act as representatives of the Lakuili Tribe in this case as may be required under rule 3.42 of the Solomon Islands Courts (Civil Procedure) Rules 2008? Mr. Nori for the defendants says this is the case. He says that the claimants do not have mandate to represent the Lakuili tribe. He has not shown on the other hand, which of those landowners who signed the agreement represent the Lakuili tribe. There is no mention also of the tribe they purport to represent in that agreement. All that has been recorded were the names of the lands that they assert timber rights ownership over. None of the twenty three landowners identified have recorded beside their names any of the Talalu land. The claimants on the other hand have provided material, which support their assertion of being representatives of Lakuili tribe and landowners over the Talalu land. In exhibit BG2 annexed to the sworn statement of Bernard Garo, filed 18th March 2008, Jack Hanigaro is recorded as one of the representatives of the Lakuili tribe. Also in the sworn statement of Daniel Kikile filed 16 November 2007, the plaintiffs together with one Reuben Chonivatu are also recorded as persons representing the landowners that own Talalu land. I am satisfied there is sufficient material before me which supports their claim of entitlement to represent the Lakuili tribe in this case.

If there is any other issue of representation then that can be determined at trial.

I am satisfied the interlocutory orders sought should be granted until trial or further orders of this court.

Orders of the Court:

The first and second defendants, their servants, agents or otherwise are restrained from entering, carrying out any construction of any kind, cutting, felling, extracting or removing any trees within Talalu land until trial or further orders of this court.

All proceeds of logs extracted from Talalu land are hereby restrained and to be paid into an interest bearing deposit account in the names of counsels for the parties within 14 days.

The first and second defendants to provide by way of sworn statement records of all logs extracted and exported to date from the Talalu land by quantity, volume, specie and price within 28 days.

Costs in the cause.

The Court.

---

^[1] Kotaoa, Takikina, Tadiki, Kovaga, Laohahau, Vaqulu, Laotato, Konakaho, Talaluabuti, Laokakauha, Bolihuna, Mahusi, Tselave, Konagema and Tsavuksata (the Talalu land).

^[2] Rule 7.11(a) of the Solomon Islands Courts (Civil Procedure) Rules, 2008