IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 14 of 2010

BETWEEN:

EDDIE MAENA KIDOE, MARVIN LEZUTUNI, FRANK NINAMO, 
DAVID KUTE, LEWIN KIDOE, HARRY LULUKU, 
DONALD ODIKANA LEZUTUNI AND GWEN J. ABANA
Claimants

AND:

THE PREMIER
(for and on behalf of the Western Provincial Executive)
First Defendant

AND:

RERESARE DEVELOPMENT COMPANY LIMITED
Second Defendant

AND:

JACK LOGOBE, DALCIE TOZAKA, PAVO EDDIE KIRIA 
AND OKA VAKI Third Defendants

AND:

ATTORNEY GENERAL
(for and on behalf of the Commissioner of Forests)
Fourth Defendant

Date of Hearing: 26 May 2010
Date of Decision: 10 June 2010

Mr. Sullivan QC and Mr. Kingmele for second and third defendants
Mr. Tegavota for claimants
Mr. J. Muria (Jnr) for fourth defendant

DECISION ON APPLICATION TO STRIKE OUT PROCEEDING

Cameron PJ:

1 In this proceeding the claimants seek to prevent a timber rights hearing being held to determine who are the rightful persons entitled to grant timber rights to the second defendant. The claimants contend that they already have a timber rights determination in their favour dated 20 July 2004, and that the Western Provincial Executive (the first defendant) is therefore estopped from any form of reconsideration of that matter.

2 On the other hand, the third defendants contend that they are the rightful owners of the land in question, that the timber rights determination of 20 July 2004 is wrong, and that a fresh timber rights hearing is required as a result of the second defendants’ application for a licence. The third defendants also contend that the claimants, on the basis of previous Court decisions, are estopped from denying the third defendants’ rights as to ownership of the land.

3 The land in question is customary land on Vell La Vella Island, Western Province. The second defendant in its application refers to it as Reresare stage II land, whereas the claimants call it Veala Reresare land. It is common ground that it is one and the same land.

4 The claimants obtained an ex parte interim injunction dated 1 February 2010 restraining the Western Provincial Executive from holding of any timber rights hearing to consider the second defendant’s application for a licence. That injunction was discharged by consent on 26 April 2010.

5 The prior timber rights determination of 20 July 2004 came about as a result of an application for a timber licence by the claimants using the name of Reresare (Veala) Development Company. The determination held that those entitled to grant timber rights over the land were the claimants. A timber rights agreement in favour of Reresare (Veala) Development Company was subsequently signed, and a timber licence issued to Veala Reresare Development Association.

6 Subsequently this Court declared invalid the licence to Veala Reresare Development Association, as it was not a legal entity. It further held the timber rights agreement to be invalid, as it was not signed by all those identified as grantors. No specific finding was made by the Court as to the timber rights hearing and determination which preceded the granting of the licence. On this basis, as well as the basis that the timber rights determination was not appealed, the claimants assert that it remains a valid and effective determination down to the present time, and precludes any further timber rights hearing.

7 The fundamental problem with the claimants argument is that a timber rights hearing and determination is a necessary statutory process which has to be followed each time an application for the acquisition of timber rights is approved by the Commissioner of Forests. Section 8(1) of the Forest Resources and Timber Utilisation Act is mandatory in its requirement that "Upon receipt of a copy of the application, the appropriate Government shall fix ….. a date ..… for a meeting ….. to determine the matters specified in subsection (3)".

8 The recent application by the second defendant for the application of timber rights over the subject land is of course quite a separate application to that brought on behalf of the claimants several years ago, and once consented to by the Commissioner requires a fresh timber rights hearing.

9 As a related point, it is clear that a determination by a provincial executive is neither final nor binding, and cannot raise an estoppel by judgment in favour of any person – see the Court of Appeal decision in Simbe v. East Choiseul Area Council [1999] SBCA 9, which based its reasoning on the fact that in performing its functions under section 8 of the Forest Resources and Timber Utilisation Act an area council is a tribunal, and not a court of record (and the same must apply to a provincial executive). Thus the assertion by the claimants that they have a binding determination in their favour is wrong.

10 For these reasons the claimants proceeding must fail. However, it was also urged upon the Court by counsel for the second and third defendants that the claimants are estopped from asserting customary ownership to the land in question contrary to the third defendants’ rights, by virtue of previous decisions of this Court.

11 That may be, but the issue in this proceeding is confined to whether a timber rights determination made in 2004 remains valid and effective and cannot be disturbed by a further timber rights hearing and a new determination. The claimants argument that it cannot be disturbed is not premised on an assertion that they and not the third defendants are the customary owners of the land, but rather that the prior determination was final and conclusive as to those entitled to grant timber rights. That issue has been fully answered in my stated reasons, and I decline to rule on questions of estoppel relating to the customary ownership of the land.

12 The claim is now dismissed in its entirety, with costs being awarded against the claimants and in favour of the second and third defendants on a standard basis, including certification for Queen’s Counsel.

BY THE COURT

Justice IDR Cameron
Puisne Judge