Hulanga v Hulanga [2009] SBHC 30; HCSI-CC 203 of 2009 (12 August 2009)

HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case No. 203 of 2009

BETWEEN:

MATHIAS HULANGA
(Representing the Toroauwala tribe of – South Malaita)
Claimant

AND:

CHRISTOPHER HULANGA
1st Defendant

AND:

DERRICK ROWANE, AMBROSE ASU,
AHUKELA AND JOHN WASI
(trading as Mapo Development Company)
2nd Defendants

AND:

PACIFIC VENTURE (SI) LTD
3rd Defendant

AND:

WESTPAC BANKING CORPORATION
4th Defendant

Date of Hearing: 21 July 2009
Date of Ruling: 12 August 2009

Mr Toito’ona for the Claimant
Mr J Apaniai for the 1st, 2nd and 3rd Defendants

RULING

Mwanesalua J:

1. The Claimant Mathias Hulanga, "Mr Hulanga", represents Toroaiwala Tribe, "the Tribe", of South Malaita. The Tribe owns Toroaiwala Customary land, "the Land" on South Malaita. The first defendant Christopher Hulanga, "Mr C Hulanga", is the brother of Mr Hulanga’s father. Mr C Hulanga and Mr Hulanga are members of the Tribe. The second defendant, Derrick Rowane, Ambrose Asu, Luther Ahukela and John Wate, (trading as Mapo Development Company), "MDC", is the Licencee. It has a felling Licence Number A10415. The third defendant, Pacific Venture (SI) Ltd, "Pacific Venture" is the Logging Contractor for MDC. The fourth defendant, Westpac Banking Corporation, "WBC" is a commercial bank in Solomon Islands.

2. On 22 June 2009, the Court granted an interim order to Mr Hulanga against MDC, Pacific Venture and WBC. Its terms are as follows:

"(1) That the proceeds of the Letter of Credit in favour of the third respondent paid by Lam Pacific PTE of Singapore through the fourth respondent in respect of the log consignment as per sales contract number PV-09-02 and dated 29th May 2009 be frozen until further orders of the Court.

(2) That the fourth Defendant be restrained from transacting, dealing or disbursing the proceeds of the said Letter of Credit upon its receipt until further orders of the Court.

(3) That the second and third respondents are permanently restrained from conducting further logging activity on the Toroaiwala Customary Land on Small Malaita including felling, hauling and skidding of round logs.

(4) That the second and third respondents are permanently restrained from using the said Toroaiwala Land as an easement to access other concession areas in the vicinity as well as from hauling logs felled in those areas through Toroaiwala land to the log pond at Mapo Harbour.

(5) That the second and third respondents are permanently restrained from extracting gravel and other materials on Toroaiwala land for use in the logging operation.

(6) Parties are at liberty to apply for further orders.

(7) Application to be listed for inter parties hearing on any date convenient to the Court.

(8) Applicant to file a claim proper within 21 days from the date of these orders.

(9) Applicant to serve this order on all respondents within seven (7) days hereof.

(10) Costs in the cause.

3. Mr C Hulanga, MDC and Pacific Venture lodged this application to set aside the interim order in its entirety on the grounds:

(a) that the claimant failed to file his claim within 21 days as required by Order 8 of the interim order,

(b) that the assertion by the claimant that he was the person lawfully able to grant timber rights over the land and not Mr C Hulanga is a matter which this Court has no jurisdiction to determine. On the alternative, Mr C Hulanga, MDC and Pacific Venture made an application to vary the interim orders if this application to set them aside should fail; and

(c) that the claimant was aware of the timber rights hearing but took no steps to lodge his claim earlier.

4. Mr Hulanga conceded that he has not filed his claim within 21 days because his file was missing. He says that the logging operation on the land is illegal on two grounds. The first is that the certificate of no appeal was signed by an Office Manager rather than the Secretary of the Customary Land Appeal Court (Malaita), and secondly, that the logging operation on the land is illegal being in breach of the Environment Act. He says that because of this illegality, Mr C Hulanga, MDC and Pacific Venture are not entitled to the proceeds the sale of the logs and therefore should only be paid to Mr Hulanga and the Government.

5. Mr Hulanga clearly failed to comply with Order 8 of his own interim order as set out above. His excuse was that his file was missing. But he did not tell this Court when, where, and how it went missing. A client’s file is usually retained by the client’s solicitor until the matter is completed or is transferred to another solicitor where a client changes solicitor. His solicitor provides no information regarding this missing file. This Court has its copy of his file. He could ask for a copy of it if his file really went missing. Mr Hulanga says that he had not filed his claim in Court earlier because he was not aware of the timber rights hearing made on the land. This is not true because Mr C Hulanga informed him that the Form I was posted up at U’uimenu Village, close to his village; he knew about the day of the Timber Rights hearing and that he knew MDC was granted timber rights over the land. This Court does not believe that Mr Hulanga’s file went missing and that he was unaware of the timber rights hearing held by the Malaita Provincial Executive regarding the Land on 20 October 2004. He was granted the interim order because he gave untruthful evidence when he applied for the interim order. That prejudiced Mr Hulanga, MDC and Pacific Ventures’ rights to complete logging on the land and have access to Ngadiniumwane and Hunupomala concession areas.

6. The felling operation on the land was completed but logs are yet to be transported to the log pond for export when the interim order was granted to Mr Hulanga. The Court notes the fact that MDC did not have any development consent from the Director of Conservation to conduct its logging on the land. That is illegal. But it is a matter for the police and the relevant authority to bring the matter to Court if they so decide. This Court merely deals with the civil aspect of the case.

7. It was also noted that the certification of no appeal in respect of the land was not signed by the Secretary of the Customary Land Appeal Court (Malaita), but an office manager. The timber rights determination being challenged by Mr Hulanga occurred in October 2004. A certificate of ownership (Form II) has been issued by the Malaita Provincial Executive. The time for appeal has lapsed and that no appeal has been lodged. The determination was in favour of the tribe as represented by Mr C Hulanga. He is the younger brother of Mr Hulanga’s father. Mr C Hulanga represents the tribe. A felling licence has been issued to MDC to carry out logging on the land, amongst other areas. The Court decides that the maxim "omnia praesumuntur soleniter esse acta" (all things are presumed to have been done rightly) applies to this case. See Keuni –v- Kia-Katova Area Council and others (CC. No. 382 of 1999; see also Lokopio and Kamasae –v- JP Enterprrises Ltd (cc. No. 245 of 2002, page 4).

8. Mr Hulanga contends that he was the only person lawfully able to grant timber rights in respect of the Land and not Mr C Hulanga. Mr Hulanga and Mr C Hulanga are members of the same tribe. Any dispute between them on who is lawfully able to grant timber rights is a matter for the tribe itself or else the Chiefs. See also Senu –v- Lokete and others – (CC No. 018 of 2002). In Lokopio and Kamasae –v- JP Enterprises Ltd (CC. No. 245 of 2002, 2004 it was said:

‘Where, after licence have been issued, there is disagreement amongst the tribe over logging, that disagreement cannot ground cause of action to impugn the agreement and licence issued under the Act, once the time for appeal has expired. It is a disagreement amongst the tribe and should be resolved on the proper place, the Local Court.

9. In conclusion, this Court does not believe that Mr Hulanga lost his file on this case. He did not file his claim within 21 days as required by the interim order set out above. A failure to act in accordance with an order is ground for setting aside of a proceeding. A dispute between members of the same tribe is a matter for the tribe itself to resolve or if not, through the Chiefs, Local Court and the Customary land Appeal Court. This Court does not have jurisdiction to deal with such disputes. MDC needs to obtain the consent of the Director of Environment and Conservation to develop Ngadiniumwane and Hunupomala concession areas. The Court will rule in favour of Mr C Hulanga, MDC and Pacific Venture. The interim order of 22 June 2009 granted in favour of Mr Hulanga is set aside.

Order of the Court:

1. Interim Order granted to Mr Hulanga of 22 June 2009 is set aside.

2. Costs in the cause.

F Mwanesalua J
THE COURT