Pou v Tropical Forestry Ltd [2009] SBHC 31; HCSI-CC 452 of 2004 (31 July 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 452 OF 2004

BETWEEN:

GEORGE POU and CHRISTIAN SALINI –
(Representing the Pughu Clan of Gaobata Tribe of Ngella)
Claimants

AND:

TROPICAL FORESTRY LIMITED
1st Defendant

AND:

DALGRO (SI) LIMITED
2nd Defendant

AND:

CHARLES SORO JOHN SOGILO WARREN GUIGUI, ABRAHAM PISU, JOHN SINI AND SAMUEL BALEA
3rd Defendant

AND:

ATTORNEY GENERAL
4th Defendant

Date of Hearing: 3 July 2009
Date of Decision: 31 July 2009

Mr Titiulu for Claimants
Mr Sullivan QC and Mr Kama for 1st, 2nd & 3rd Defendants
Mr Damilea for 4th Defendant – (Attorney-General)

DECISION ON APPLICATION FOR ASSESSMENT FOR DAMAGES FOR TRESPASS

Cameron PJ:

1. It is clear from previous findings of the Court that the defendants have logged areas of land that were not the subject of a timber rights agreement. That logging took place on Ngella Islands, Central Islands Province.

2. The claimants, who claim ownership of the land on which that unlawful logging took place, seek an assessment of damages for the trespass. The sole issue presently before the Court is whether that assessment should proceed at this stage or await the outcome of customary Court proceedings already initiated.

3. There are four parcels of lad concerned, described as Tavanare, Betinialu, Sarisiripa and Taninaviku.

4. In respect of the first parcel Tavanare, there is an appeal pending before the Customary Land Appeal Court (CLAC) as to whether it forms part of a larger block of land known as Lesser Pugu or is in separate ownership notwithstanding being surrounded by the Lesser Pugu block. If the CLAC decides that it forms part of the Lesser Pugu block and is not separately owned, then the defendants will be able to contend that any logging within the Tavanare land was with the consent of the owners of Lesser Pugu, who had the necessary authority to grant permission over Tavanare land. This would provide a defence to the claim of trespass, notwithstanding the absence of approval for logging from the Commissioner of Forests.

5. Conversely, if the CLAC decide the Tavanare land is separately owned by the claimants, a claim in trespass would lie.

6. In relation to the three remaining parcels of land, namely Betinialu, Sarisirapa and Taninaviku, following various Council of Chiefs’ decisions the question of customary ownership of all three parcels has been referred to the Local Court.

7. However, the claimants contend that the person who referred the disputes to the Local Court, namely Mr Soro (one of the third defendants), was not entitled to do so, In effect, they claim that he was not authorised to act on behalf of the losing party.

8. Whether or not Mr Soro had the necessary standing to refer the disputes is in my view a matter which needs to be determined in the first instance by the Local Court. The Local Court is new seized of the matters in every respect. Any challenge to the standing of the person who initiated the referral is a matter which the Local Court will need to consider at the outset of any hearing before it. The question of sufficiency of standing in itself may involve a consideration of matters of custom. It may also be necessary to determine whether the claims of ownership which Mr Soro assets are on behalf of the third defendants or in his own right. If it is in his own right then that would introduce a third party claiming ownership of the lands.

9. The determinations of the Local Court and the CLAC will be relevant in ascertaining which areas of land are in the ownership of the claimants. It will then be for the claimants to prove that logging occurred on those lands without their permission, and to establish the extent of that logging so that appropriate damages can be assessed.

10. The risk of fixing damages now is that the assessment will need to be on the premise that the claimants own defined parcels of land on which logging occurred, a premise which may prove to be invalid once the customary courts have made their determinations.

11. I therefore decline the application to make an assessment of damages for trespass, and await a determination of the issues relating to those four parcels of land by the customary Courts. Costs are in the cause, and the Court proceeding is adjourned generally.

THE COURT