Poa v Attorney General [2011] SBHC 110; HCSI-CC 223 of 2011 (27 June 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

DOUGLAS POA & OTHERS

-v-

ATTORNEY GENERAL
(representing the Commissioner of Forests and the Minister of Forests)

Date of hearing: 24 June 2011
Date of Judgment: 27 June 2011

Mrs. L. Folaumoetui for Applicants/Defendants.
Mr. R. Kingmele for Respondents/Claimants.
Mr. G. Suri for Kalena Timber Company Ltd.

RULING

Apaniai, PJ:

1. This is an application by the Attorney General (representing the Commissioner of Forests ("COF") and the Minister of Forests ("Minister")) ("Applicants") for orders to set aside interim orders and declarations made by His Lordship, Mr. Justice Chetwynd, on the 17th June 2011 ("June 17 Orders"). The Respondents in this application are members, and representatives of the Moka tribe.
   
2. Mr. Suri sought leave to be heard on behalf of Kalena Timber Company Ltd ("KTC") arguing that KTC is an interested party and ought to be heard. Mr. Kingmele and Ms. Folaumoetui raised no objection to Mr. Suri being heard and so Leave was accordingly granted.
   
3. This case is about Moka customary land ("Moka land") situated on Rendova Island, Western Province. KTC holds a timber license covering certain customary land areas on Rendova which, until October 2010, included the Moka land. The Moka tribe of Ugele, Rendova Island, claims ownership of the Moka land and it appears that the trustees of the Moka land, for the purposes of the logging operations by KTC, were Milton Sale and Johnson Paza ("Trustees"), both members of the Moka tribe.
   
4. The events leading up to this application are as follows:-
   

[1] On the 8th August 2010, the Moka tribe met and agreed to develop a cocoa project ("Project") for their tribe on Moka land. They also agreed at that meeting to register an association ("Association") which, I assume, could be used as the vehicle to pursue and oversee the development of the Project on behalf of the tribe. It appears that the Association has not yet been registered and, as a result, the Respondents have established another entity called Moka Landholding Group which, it appears, they are now using to push the Project.

[2] To develop the Project, it is necessary to "clear" the land. Such clearing would involve felling of trees which must be sold otherwise the logs would be wasted. To fell and sell the logs, a license is required in accordance with the Forest Resources and Timber Utilisation Act ("Cap. 40").

[3] It appears that the intention of the Respondents was that their tribe should carry out the felling themselves so they could use whatever proceeds are earned from the sale of the logs to finance the Project.

[4] It also appears that the Forestry Officers at Munda became aware of the Project for they advised the Respondents that they would have to obtain the approval of the Ministry of Forests if they wanted to fell and sell the logs. The Officers also informed the Respondents that Moka land was already covered by a felling license owned by KTC.

[5] On 10th September 2010, the Trustees wrote a letter to KTC expressing concerns and disagreements over "certain issues" and threatening to terminate the timber rights agreement ("SLA") relating to Moka land if KTC did not "comply". In that letter, the Trustees referred to the Moka land as the land between Buruku river and Bulelavata river. The letter was copied to the COF.

[6] On 15th October 2010, the COF wrote to KTC reminding them of the notice given by the Trustees.

[7] On 18th October 2010, Whitlam Togamae Lawyers, solicitors for the Trustees, also wrote a letter to KTC (copied to the COF) reminding them of their failure to respond to the Trustees' letter of 10th September 2010 and informing KTC that the SLA had been terminated as of the 18th October 2010.

[8] On 29th October 2010, the COF wrote a letter to KTC informing them that in the light of their failure to respond to the letters by the Trustees, Whitlam Togamae Lawyers and his letter of 15th October 2010, the KTC felling license had been amended by excision Moka land from the license. No reaction had been received from KTC in response to the decision by the COF to amend the license. To date, that amendment had not been revoked or challenged and appears to be still on foot.

[9] Meanwhile, the Western Provincial Government as well as the national government's Ministry of Agriculture had also fully endorsed the Project to the extent that the said Ministry of Agriculture wrote to the COF on 30th September 2010 to facilitate the necessary formalities for the Respondents to do the "clearing" of the Moka land for the Project.

[10] On 2nd November 2010, Mamu Paza, on behalf of the Respondents, also wrote to the Minister of Forests ("Minister") requesting the Minister's approval for the Respondents to fell and sell logs from Moka land.

[11] Following that letter, a request was made on behalf of the Minister for a meeting to held between the Tribe and the Minister to enable the Minister ascertain whether the whole tribe agreed with the proposed Project. It appears that a meeting was held which subsequently resulted in the Minister, on the 17th January 2011, granting a special permit ("Permit") to the Respondents to harvest and sell logs from the Moka land.

[12] The grant of the Permit resulted in a declaration of exemption of the Moka land from the provisions of section 4 of Cap.40. That exemption was formalised by the gazetting of Legal Notice No. 13 of 2011 dated 25th February 2011. The granting of the Permit was conveyed by the COF to the Respondents by letter dated 28th February 2011.

[13] Despite all these approvals and legal formalities relating to the exemption and the granting of the Permit, the COF wrote to the Respondents on 11th March 2011 suspending the Permit. The reason for the suspension was that the ownership of Moka land was under dispute. By then it appears that logs have already been felled by the Respondents and were ready for export.

[14] On 16th March 2011, the Respondents wrote to the COF requesting the COF to revoke the suspension of the Permit.

[15] The COF refused to accept the Respondents' request and, instead, on the 17th March 2011, wrote to the Respondents purportedly revoking the Permit and advising the Respondents to cease all felling within Moka land and to haul and store all felled logs somewhere and await further directions from the COF.

[16] On 24th May 2011, the Minister further wrote to the Respondents expressing concern over logs which he alleged to have been illegally felled in Moka land by the Respondents without a felling license. He suggested that the felled logs be exported by KTC and that KTC be allowed to continue with the felling of trees in Moka land for the purposes of the Project. In that letter, the Minister claimed that KTC still had a felling license over Moka land. He also suggested that the proceeds of the exported logs be placed in a joint trust account or be dealt with in accordance with mutual resolutions to be agreed between the Respondents and KTC. That suggestion did not go down well with the Respondents.

[17] On 28th May 2011, the Respondents lodged an application to the COF for specific authority to export the logs which have already been felled. No response was received from the COF in relation to the application.

[18] The COF's non response to the application has caused concern to the Respondents since they say that a log vessel (MV Pacific Banghu) had already been engaged to load the logs and that the vessel should arrive in the Western Province to load the logs on 22nd June 2011 or thereabout.

[19] Their concern has led them to file this claim on the 17th June 2011 against the Applicants seeking judicial review, not only of the actions of the COF and the Minister in suspending and revoking the Permit, but also of the decision by the COF and the Minister's suggestion that KTC export the logs.

[20] In addition to filing the claim, the Respondents have also filed an urgent application that same day (17/06/11) for orders allowing them to export the logs via the MV Pacific Banghu and that the proceeds thereof (less export duty) be paid into a joint trust account to be opened in the names of the solicitors for the parties pending trial. The application was heard by His Lordship, Mr. Justice Chetwynd, in the afternoon of that same day (17th June 2011).

[21] Both the Respondents and the Applicants were represented by counsel at the hearing of the application. However, it appears that due to the very short notice, the Applicants did not have the opportunity to file any sworn statement in response to those filed by the Respondents in support of their earlier urgent application.

[22] Having heard the parties, His Lordship then made the following interim orders and declarations:-

1. That the revocation/suspension of the special permit issued to the (Respondents) by the Commissioner of Forests under section 4(1)(c) of the Forest Resources and Timber Utilisation Act (Cap. 40) was contrary to the rules of natural justice in that the (Respondents) were not given any opportunity to make any representations on the issue of land ownership.
   
2. The Minister's suggestion set out in his letter dated 24th May 2011 to the (Respondents) (set out in page 30 of Milton Sale's sworn statement) that the logs felled within Moka land ("the land") be sold, and further clear felling of the land be undertaken, by Kalena Timber Company Limited ("Kalena"), is unhelpful because of the excision of the land from Kalena's license which is evidenced at page 17 of Milton Sale's sworn statement.
   
3. Any proceeds of logs sold/exported from the land are to be held by the (Respondents) entire and immediately available for payment into court pending further order.
   

[23] It appears from the court transcript that no date has been fixed for a further hearing at which the Applicants would be given the opportunity to respond by sworn statement to the facts asserted in the sworn statement filed on behalf of the Respondents.

5. On 22nd June 2011, the Applicants filed this application seeking orders to set aside the June 17 Orders. They based this application on Rule 17.55(a) and (f) of the SI Courts (Civil Procedure) Rules 2007 ("the Rules"). They further say that the application is urgent for the reason that the Respondents had no felling license and that the June 17 Orders, if allowed to stand, would result in any export by the Respondents of the logs been illegal.
   
6. In support of the application, they filed a sworn statement by Reeves Moveni, the COF, in which Mr. Moveni had responded to the facts alleged in the sworn statements filed in support of the urgent application by the Respondents. They also say that the sworn statement by Mr. Moveni had disclosed new matters which have arisen since the June 17 Orders were made which justify re-visiting the orders and setting them aside.
   
7. It appears to me that the first hurdle that the Applicants must overcome is to convince me that this is an application to which paragraphs (a) and (f) of Rule 17.55 apply. If I am not convinced, then this application must fail entirely. Rule 17.55 (a) and (f) provide as follows:
   

"17.55 The Court may set aside an order at any time if:

(a) the order was made in the absence of a party; or,

...

(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made."

In relation to Rule 17.55(a), counsel for the Applicants has urged me to give a wider interpretation to the term "absence of a party" to include the situation where, although counsel for the absent party was present when the orders were made, that party was not in a position to give any evidence or respond to any sworn statement filed on behalf of the other party due to short notice of the hearing. She says that that party must be treated as being "absent" within the meaning of Rule 17.55(a).

8. I do not agree. If that was what the framers of the Rules had in mind when they formulated Rule 17.55(a), they would have said so in clear terms. I am mindful of the requirements of Rules 1.3, 1.4 and 1.5 of the Rules in regards to the interpretation of the Rules. However, in my view, to accede to the submission of counsel for the Applicants would result in stretching the meaning of Rule 17.55(a) far beyond the intentions of that Rule.
   
9. In court proceedings, parties either appear in person or by counsel. Where a party is represented by counsel, the party is deemed to be present at the hearing if his or her counsel was present at that hearing. That has been the accepted practice in this jurisdiction. In my judgment, Rule 17.55(a) ought to be interpreted in the light of that practice.
   
10. In the present case, counsel for the Applicants was present at the hearing on the 17th June 2011 when the June 17 Orders were made. As such, the Applicants must be deemed to have been present when the orders were made. If counsel for the Applicants was of the view that her clients should have been given the opportunity to file sworn statements in response to those filed by the Respondents or if, for some other reasons, the hearing ought to be adjourned, she had had the opportunity to raise the point at the hearing at which she was present. Nothing in the court transcripts shows that advantage had been taken of that opportunity to seek adjournment for the purpose of enabling her clients file sworn statements in response to those filed by the Respondents.
    
11. It follows therefore that the application by the Applicants under Rule 17.55(a) to set aside the June 17 Orders must be rejected.
    
12. In regards to Rule 17.55(f), counsel for the Applicants submits that order 3 of the June 17 Orders, which required the Respondents to hold the entire proceeds of the logs exported for payment into court pending further order, is a judgment for specific performance within the meaning of Rule 17.55(f). She further submits that the sworn statement by Mr. Moveni filed on 22nd June 2011 had disclosed reasons justifying the setting aside of those orders as required by that Rule.
    
13. The term "specific performance" is a term which is normally used in connection with performance of contracts. I do not agree that that order 3 of the June 17 Orders is a judgment for specific performance. Order 3, in simple terms, merely requires the Respondents to hold the proceeds of any logs exported from Moka land and to pay them into court pending further orders. That is not a judgment for specific performance. In my judgment, Rule 17.55(f) does not apply to the June 17 Orders and therefore the application by the Applicants under Rule 17.55(f) must also be rejected.
    
14. However, the matter does not end here. Counsel for KTC submits that order 3 of the June 17 Orders did not specify who should export the logs. He submits that an order should therefore be made authorising KTC to do the exporting. Counsel for the Applicants agreed.
    
15. Various reasons have been advanced in support of this submission. They include the following:-
    

[a] The amendment of KTC's license removing Moka land from the license is invalid and therefore KTC's license is still on foot;

[b] On the other hand, even if the amendment is valid, the logging agreement entered into by the Trustees of Moka land with KTC is still on foot and, by virtue of that agreement, KTC is entitled in law to export the logs despite that fact that it may no longer have any license over Moka land;

[c] Cases have just been filed whereby the validity of the amendment to KTC's licence is now being challenged;

[d] Cases have already been decided in the past which conferred the ownership of the Moka land on parties other than the Moka tribe;

[e] The Respondents do not have a valid license to export the logs;

[f] The felling of the logs, or at least some of the logs, by the Respondents was done prior to the granting of the special permit to Respondents. The felling was done when KTC still had a valid license over Moka land. Therefore KTC should be given the right to export the logs or at least those logs which have been felled prior to the granting of the special permit to the Respondents.

16. The Respondents, on the other hand, do not agree that KTC be given the right to export the logs. They say they are the ones entitled to sell the logs. They base their argument on the following grounds:
    

[a] They are the owners of the Moka land by virtue of a chief's decision made in April 2011;

[b] They have already terminated the logging agreement with KTC in relation to Moka land;

[c] KTC's license has expired in early 2009 and its renewal was invalid for the reason that the Moka tribe was not consulted when the license was renewed;

[d] KTC's license no longer covers Moka land;

[e] They have been granted an exemption from the requirements of section 4 of the Forest Resources & Utilisation Act and a special permit was given to them to fell and sell logs from Moka land;

[f] The logs were felled by them and at their costs;

[g] They have already arranged for the export of the logs and the log ship is about to reach the Moka land for loading of the logs.

17. One thing is clear from the submissions of the parties in this application and from the reasons advanced by both sides as stated above. That is, very serious issues have been raised in this claim and the time to agitate those issues is at trial. In the meantime, the felled logs should be exported. All counsel agree that serious issues exist which can only be resolved at trial. They also agree that the logs must be sold, and sold soon, to avoid deterioration in quality. They also agree that the proceeds of the sale of the logs should be held somewhere pending the resolution of the issues. Their only disagreement is as to who should do the exporting and who should hold the proceeds.
    
18. In my judgment, the Respondents are entitled to export the logs. The reasons are that the June 17 Orders have not been set aside as sought in this application. That means order 3 of those orders is still on foot. It is implicit in those orders that the Respondents have the right to export the logs. Furthermore, it is the Respondents who had incurred the costs of the felling of the logs. Moreover, the Minister had granted the Respondents an exemption and a special permit to fell logs within Moka land. These logs, or at least some of them, have been felled as a result of that permit and exemption and it would be most unfair to the Respondents if the Minister were to be allowed to deny them the right to export the logs. The reason that some of the logs may have been illegally harvested by the Respondents (an assertion which the Respondents deny) is no reason for denying the Respondents the right to export the logs[1]. Finally, arrangements have already been made by the Respondents with the log vessel (MV Pacific Banghu) for the logs to be exported. The vessel is now in the country and within the vicinity of the Moka land. The only outstanding matter is the granting by the COF of the specific authority to export the logs, a matter in respect of which an application has already been lodged by the Respondents. The COF must issue the authority to export the logs.
    
19. As to the question concerning the custody of the proceeds of the exported logs, the June 17 Orders have directed that Respondents have custody of the proceeds for payment into court pending further order. Pursuant to that order, I now order that all proceeds received or to be received by the Respondents in connection with the export of the logs (less export duty) be paid into court as ordered by the June 17 Orders. The Respondents shall be at liberty to apply for the certified costs of operations to be paid out of such proceeds.
    
20. Accordingly, I make the following orders:-
    

[1] The application to set aside the June 17 Orders is dismissed.

[2] The Respondents shall be entitled to export the logs felled from the Moka land.

[3] The COF shall ensure that the necessary authority to export the logs is issued to the Respondents immediately.

[4] The proceeds of the sale of the logs (less export duty) are to be paid into court immediately upon receipt by Respondents with liberty to apply for the release of the certified costs of operations if they wish to do so.

[5] Costs in the cause.

THE COURT

_________________________
Justice James Apaniai
Puisne Judge

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^[1] Idale & Others v Golden Fountains (SI) Company Ltd & Others (CC. No. 186 of 1996), see also Regina v JP Enterprises Ltd (HC-CRC No. 298 of 1999).