Garaba v Orion Ltd [2010] SBHC 45; HCSI-CC 137 of 2006 (3 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOHN GARABA AND CHIEF EDDIE
NAJIKESA (representing the Alekana Tribe of Choiseul)
Claimants

AND:

ORION LIMITED
First Defendant

AND:

JAMES ALEPIO AND BILLY GAGARA
Second Defendants

AND:

ATTORNEY GENERAL
(representing the Commissioner of Forests)
Third Defendant

AND:
KALENA TIMBER COMPANY LIMITED
Fourth Defendant

Date of Hearing: 28 May 2010
Date of Decision: 3 August 2010

Mr. G. Fa'aitoa for claimants
Mr. D. Tigulu for first and second defendants
Mrs. L. Folaumoetui for third defendant
(Attorney General)
No appearance for fourth defendant

DECISION ON APPLICATION TO DISMISS
CLAIM FOR WANT OF PROSECUTION

Cameron PJ:

1 This old claim was first filed on 10 April 2006. The Claimants case is that they and their tribe are the owners of Alekana land, a small block on the coast in South Choiseul, Choiseul Province. They claim that the defendants (excluding the Attorney General) trespassed on that land by first landing logging machinery and equipment on the land on 14 January 2006, and later by constructing a log pond and access roads on that land. After a long period of inactivity in relation to the claim, they now wish to pursue their damages claim against the defendants. The first and second defendants seek an order that the claim be struck out for want of prosecution. They also seek a discharge of some restraining orders made against the defendants as long ago as 2006, and the dismissal of unresolved contempt proceedings founded on the alleged breaches by the defendants of those restraining orders.

2 The piece of land concerned, known as Alekana land, is in a strategic location on the coast, and is a necessary entry and exit point to logging operations being carried on by the first and second defendants inland from that location. Hence the log pond on Alekana land.

3 A timber rights hearing in relation to Kubobangara land (being land immediately adjacent to Alekana land) was held on 9 September 2003, and the Choiseul Provincial Executive issued a determination on 19 September 2003, identifying those entitled to grant timber rights. The second defendants James Alepio and Billy Gagara were included as being so entitled. Importantly, the determination of 19 September 2003 states:

"This determination excludes Alekana land".

Also, the sworn statement dated 22 May 2007 of the then Commissioner of Forests Gordon Konairamo annexes a map which he deposed was used during that hearing. That map (exhibit Gk 7) shows the boundary of Kubobangara land and on the boundary there is a small circle with the notation 'Alekana'.

4 On 6 March 2005 a logging agreement in respect of 'Kubobangara customary land' was signed with the first defendant Orion Ltd. James Alepio, one of the second defendants, was a signatory and as stated logging machinery started arriving at Alekana on 14 January 2006. The licence subsequently issued to Orion Ltd describes the concession area as 'Kubobangara land'.

5 On 6 March 2005 the grantors of the timber rights (including the second defendants) signed a log pond and road access agreement with Orion Ltd, in effect permitting a log pond and access road on Alekana land. The Commissioner of Forests deposed (sworn statement 22 May 2007, para 15) that this agreement was submitted to him, and that in good faith he took the agreement to have been signed by the rightful landowners.

6 Clearly the true ownership of Alekana land continued in 2006 to be a live issue, and on 23 June 2006 the Batabana Council of Chiefs convened to hear a dispute between the claimants and the second defendants over the ownership of that land. The Chiefs written decision (wrongly dated 3 July 2005) decided the customary ownership question in favour of the claimants and against the second defendants.

7 On 29 July 2006 the second defendants referred that decision to the Local Court under the Local Courts Act, and the prescribed fee was paid. The claimants say that the first time they learnt about the existence of that appeal was when Chief Najikesa, one of the claimants, annexed it to his sworn statement of 2 November 2009.

8 The Local Court has not yet convened a hearing to decide the question of ownership of Alekana land.

9 As stated earlier, there has been a long period of inactivity on the part of the claimants in pursuing their claim for trespass. I am satisfied, though, that this was in large part as a result of inaction by former solicitors of the claimants, and that the justice of the case requires that the claimants should be entitled to have their claim for trespass heard. This is particularly so as the claim is in effect for continuing trespass, for although felling of trees on Alekana ceased in 2008, there is continued use of the log pond and access roads across Alekana land. Accordingly, even were this claim to be dismissed, the claimants would be entitled to bring a fresh proceeding claiming trespass and damages.

10 Of course until the ownership of Alekana land is resolved, the claim for trespass cannot proceed. All counsel have recognised this, and seek a deferral of the trespass claim pending a hearing and ruling on ownership from the Local Court.

11 The claimants also seek to continue with contempt proceedings arising from restraining orders made by Brown J back in 2006. In my view events have really overtaken those interim orders - over the last 4 years the first defendant has been using the log round pursuant to rights granted under an agreement by landowners who claim to be the rightful owners of Alekana land (the second defendants). That agreement appears to have been approved by the then Commissioner of Forests, or at least not objected to by him. The logging pond and access road is integral to legitimate logging operations of the first defendant.

12 In substance this case is about who are the rightful owners of Alekana land, and therefore who is entitled to rental payments made for the logging pond and access road, and who may be entitled to claim damages for trespass. The ownership of the land is a live issue, and needs to be resolved at Local Court level.

13 While this court does not condone in any way the non-observance of court orders, the 2006 orders are now obsolete in the sense that for long periods since then the claimants did not adequately pursue their enforcement and now that their interest in the claim has been rekindled they seek to turn the clock back 4 years. The reality is that a private landowners contract is in place authorising the use of that land and has been operating for the last 4 years, and that represents the current status quo. The real issue is whether those persons granting the rights are the real landowners, which issue can only be determined following a ruling on ownership by the Local Court.

14 I understand that the Attorney General has never been formally added as a defendant in this proceeding, and an order to this effect is appropriate.

15 The following orders are now made:

(a) An order dismissing the first and second defendant's application to strike out the proceeding for want of prosecution.

(b) An order directing the Local Court (Western District Magistrate's Court) to hear the 'Alekana Customary Land Dispute – Tudubatu v. Garaba' and issue a decision as to customary ownership.

(c) An order staying this claim until the decision of the Local Court is available.

(d) An order discharging the interim injunction orders dated 28 July 2006.

(e) An order dismissing the application for contempt proceedings filed on 27 March 2007.

(f) An order adding the Attorney General (representing the Commissioner of Forests) as a third defendant.

(g) An order adding Hup Lee (SI) Company Limited as a further defendant.

(h) An order dismissing all other applications.

(i) An order that costs be in the cause.

BY THE COURT

__________________________
Justice IDR Cameron
Puisne Judge