Kololeana Development Company Ltd v Piasi [2008] SBHC 55; HCSI-CC 181 of 2007 (20 July 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 181 of 2007

KOLOLEANA DEVELOPMENT COMPANY LIMITED (Trading as Viuru Forest Enterprises)
FIRST CLAIMANT

JOHN LENITI

WILSON MAEKERA

JACK PIZIKI

LEROY LILO

GORDON NAQU

SCREVEN ROVE

MIKE GASI

JAKE BAPU

ANDJOB LIKOTO (Representing Epanga Tribe)
SECOND CLAIMANTS

DELTA TIMBER LIMITED
THIRD CLAIMANT

V

JACKSON PIASI

DAVID LIVINGSTONE PIASI

OLIVER RIZU

REX NAQU

JOHNSON NAQU

VENI SAEVE

LIKITI GHOMO

SASE GHOTOKERA

HIVA BANGARA GHOTOKERA

LILY DURI (Representing themselves)
DEFENDANTS

FAUKONA, J.

Date of Hearing: 15 July 2008
Date of Ruling: 20 July 2008

W. Rano for 1st, 2nd and 3rd Claimants
P. Tegavota for the Defendants

RULING ON APPLICATION TO STRIKE OUT

Faukona, J.

This is an application to strike out pursuant to Rule 9.75, filed on 6th February 2008, by Mr. Tegavota. This cause of action on the basis that its continuation:-

(a) no longer raises any reasonable cause against the defendants.

(b) it will be frivolous and vexation.

(c) it will amount to an abuse of court process.

The 1st Claimant is a holder of logging licence No. Tim 2/34A later it was amended to Licence No. A/0419. The 2nd Claimants are the grantors. The 3rd Claimant is the contractor under the management and technology agreement signed on 13th June 2002 between itself and the Claimants. The 1st Claimant’s licence permitted the 3rd Claimant to fell and extract timber and round logs from within the land area of Viuru Customary Land on Kolombangara Island, Western Province.

Associated with the traditional grounds advanced; Mr. Tegavota base this application on two grounds. The tone may sound different but correspond in almost all respect.

1. That the lands upon which the 3rd Claimant was extracting logs from were registered lands, Epanga, Tusa, Dhugore and Karo.
   
2. That the requirements of Forest Resources and Timber Utilisation Act were not complied with.
   

Mr. Rano agrees on the premise that the timber rights were granted by the young people and he thought the lands concerned were customary lands at the time. He filed this claim on 9th May 2007. Later after filing Civil Case No. 284/2007 he realised that those lands were part of a block of land acquired by the Commissioner of Lands and was registered in 1984. Trustees for the landowning group were members of Pagoe tribe. Up until then all the Trustees are yet to be appointed.

Mr. Rizu then applied to the High Court to be appointed as the Administrator of the Estate of late Riteni Etupio, the last survivor of the joint owners of the lands. He was then granted letters of administration. Whilst waiting to administer the estate he granted profits to the 1st Claimant in Civil Case No284 of 2007 in December 2006, to harvest and take away for sale of logs from the said lands Lot 9 and 10 of LR598. By reason of the registered grant of profit, the Commissioner of Forest granted felling licence to the 1st Claimant in CC No. 284/2007 to harvest and take away sale of logs. Unknown to the plaintiffs the defendants, Elite Enterprises Limited and Delta Timber Limited jointly harvesting and taking away of logs. This was resulted in two Civil Cases CC No. 284/2007 and CC 437/2007 which are still pending in this court. The more interesting one is the second case whereby which the beneficiaries seek declaration that letters of administration granted to Mr. Rizu be declared void and that he expedited the appointment of new trustees. The first one is specifically for trespass and damages.

Upon pending of those two cases that Rano suggest that this application for strike out is not necessary at this stage, but suggest that this proceeding be stayed. Whilst the proceedings are stayed he would expedite hearing of those two cases to achieve a quick settlement. In this case he suggests that both the plaintiffs and Defendants are beneficiaries in the land affected by CC284/2007. He also advance that Defendants have no better right unless the two cases are settled.

His other reasons for not making it necessary to strike out because some of the defendants are still giving instructions to their previous Counsel. And agree should defendants take positive stand and accept stay of preceding, he would not object them joint parties in these two pending cases. And once they win the case, this cause of action will die a natural death.

Mr. Tegavota objects and submits that those two cases are different in issue. They refer to administration of estate in regards to those lands. The main issue in this case is that the lands covered by the licence are all registered lands.

From the submission there are number of interim orders granted, and variations etc, the most important one granted injuncting the Claimants restraining them not to carry out any logging until trial.

With the second issue, after licence was granted for Viuru land, there were two supplement agreements. In the process of those supplements new trustees were appointed. The view expressed by Mr. Maekera and Mr. Kabolo by their affidavits that there is no point of re acquiring the lands under the FRTUA as they were already registered under the Lands and Titles Act. In addition Mr. Kabolo stated that an application for extension was lodged in 2005 concerning those lands to include Viuru logging concession.

On the other hand Mr. Piasi stated in his affidavit filed on 12.6.07 that those lands are not part and partial of Viuru land covered by the licence. Those lands were about twelve miles away from Viuru land.

In this case Mr. Tegavota is concerned about disposal of the case as it discloses no prospect of success. However Mr. Rano seems to take a lenient cause that will be convenient for the parties in this case and the other two cases as well. He emphasised that the cause of action suggest that at the end of the day all will benefit, though in some circumstances the Defendants need to prove their entitlements in particular to the log proceeds.

From the arguments it would be accepted that the second Claimants and the Defendants are entitled as beneficiaries. Whether they are chiefs or members of a tribe their rights cannot be deprived. They also entitle to benefit out of the proceed of their land resources as members of a tribe. No one should be excluded and left vulnerable because he is an ordinary member. No member of any tribe that owns tribal land be regarded as inferior and has to prove his claim to a standard before he can benefit from what he also owns. All members of a tribe should be treated equal with equal rights of benefit. Lily Duri’s affidavit reflected her ownership of part of Epanga land which was recognized and accepted by the Chiefs and the tribe. Just because she is a defendant in this case that she cannot be granted equal rights and benefit of the land she deserves to benefit from.

Secondly there is no dispute that the lands concerns are registered lands. The way to go about acquiring timber rights in such a private land is stated in Bekele v. Bulacan Integrated Wood Industries Limited[1] where Kabui J said in paragraph 2 (part);

"Section of the FRTUA makes it very clear that felling of trees and their removal from Government land must be authorised by the grant of a licence by the Commissioner of Forest Resources. The same applies to land that is not customary land. Even where felling and removal of logs is a result of a grant of profit by negotiation to the government to fell and take away trees, a grant of licence is still necessary".

Anyone wishing to fell and remove trees from private land which is not customary must apply for licence under section 5 of FRTUA.

The fact that Applicants had been able to secure a grant of profit under S. 181(1) cited above is no bar to applying for a licence under Section 5 of the FRTUA.

The allegations that there was no timber rights hearing notices etc, or non compliances with FRTUA is a serious deed which may amount to serious offences, and call into question the licence that had been granted. Supplementary agreements does not substitute the process provided for under the FRTUA to entitle a logging company to enter customary land or land where grant of profits been made and extract logs without application under FRTUA, a grant of licence is still necessary.

Once a licence is granted, it will cover the concessionary area applied for. It will not entitle a logging company to enter any other customary land that is not within the concessionary area and some miles away.

Having said that what will be the best possible cause to take. Logging operation had been taken place in a registered land and perhaps not licenced to do so; will that be less serious than staying of proceeding and have to wait until the other two cases are heard? Or is it in the interest of those concern that having identified or knew something had gone wrong must resolve that immediately. I think that’s the most possible and efficient way of dealing with this case. I therefore strike out the Claimant’s claim and grant the relief sought.

Order:

1. That this cause of action be strike out.
   
2. That judgment be entered against Claimants
   
3. Cost of this application be paid by the Claimants
   
4. That application in respect of counter-claim be adjourn, and Registrar of High Court to set a date for hearing.
   

THE COURT

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^[1] [2004] SBHC 87; HC-CC 109 of 2004