Fia v North Malaita Timber Resources [2011] SBHC 126; HCSI-CC 379 of 2008 (20 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 379 of 2008

BETWEEN:

JOHN FIA, WILLY BILLY AND BEN BITI
(For and on behalf of Baenao Tribe)
Claimants/Applicant

AND:

NORTH MALAITA TIMBER RESOURCES
First Defendant

AND:

MEGA ENTERPRISES
Second Defendant

Date of Hearing : 27 September 2011
Date of Ruling : 20 October 2011

J Zama for Claimants
P Afeau for Second Defendant
No appearance for First Defendant

RULING

1. This is an application for default judgement, filed on 7 April 2009 by the Claimants for default judgment against the First Defendant. The Claimants filed their claim against First and the Second Defendants on the 5 November 2008 and served it on the Director of the First Defendant, Mr. John Meke; there was no response or defence filed by the First Defendant. The Claimants now seek default judgment and the orders as set out in the claimants' claim against the First Defendant.
   
2. The orders sought are in the application filed by the Claimants on 14 April 2011. They are as follows:
   
   • (1) A declaration that the purported Standard Logging Agreement inclusive of licence No. A1074 does not cover Baenao land;
     
   • (2) A declaration that as the Standard Logging Agreement and the licence do not cover Baenao Land, the First Defendant had trespassed into Baenao Land;
     
   • (3) Judgment against the First Defendant for damages for trespass into Baenao Land, conversion of trees felled and for all proceeds of sale of all marketable timber felled therein to be assessed;
     
   • (4) An order that the First Defendant pay to the Claimant full FOB log proceeds of all logs extracted from Baenao Land, less any reasonable operating expenses;
     
   • (5) An order for permanent injunction to restrain the First Defendant, its agents, associates, friends and subsidiaries from entering and carrying out further logging related activities in Baenao Land without the lawful authority of the Claimants;
     
   • (6) Further order or orders deem fit by the court; and
     
   • (7) Costs of and incidental to this proceeding.
     
3. It is clear that Baenao Customary Land is situated within Beuthabina Customary in North Malaita. Baenao Customary land is owned by Baenao tribe. The existence and the boundaries of this land within Beuthabina Customary Land had been determined by the Olemaoma Council of Chiefs on 7 March 2008. The existence of Baenao Customary Land within Beuthabina Customary Land has also been acknowledged by the tribe who owns Beuthabina Customary Land.
   
4. There is evidence that the First Defendant had carried out logging operations within Baenao Customary Land. The owner of Felling Licence No. A10741 is the First Defendant. This was the Licence which it used to carryout logging within Baenao Customary Land. No copy of this Licence has been exhibited to the court for perusal. However, there is no doubt that it had been issued to the First Defendant.
   
5. It seemed that Baenao Land had not been distinctly identified during the timber rights hearing, until the Baenao tribe itself realized that their land had been encroached upon by the Defendants which led to the Olemaoma Council of Chiefs determination of their ownership of it.
   
6. There is no doubt, though, that the Standard Logging Agreement is valid because the steps required to obtain timber rights over customary land under law had been complied with, as evidenced by the relevant forms exhibited to the court. There is no evidence that the forms were not genuine. The boundary of Baenao Land is shaded yellow on the sketch maps of the land as annexed to the sworn statement of Mr. John Fia filed on 6 November 2008. One of the sketch maps shows a logging road being constructed through the land. Exhibit "JF5" also shows that the land is situated well within Beuthabina land. The Second Defendant had filed defence to the claim, but the First Defendant did not do so. Default judgment is accordingly entered against the First Defendant.
   
7. The Application is allowed and the following reliefs are granted to the Applicant:
   
   • (1) A declaration that the Standard Logging Agreement and Felling Licence No. A10741 do not cover Baenao Customary Land.
     
   • (2) As a consequence of that the First Defendant had trespassed into Baenao Customary Land.
     
   • (3) Judgment is entered against the First Defendant for trespass to land and conversion of trees. Damages are to be assessed.
     
   • (4) The proceeds of logs extracted from Baenao land and exported are to be assessed and paid into a joint account in the names of the parties. Thereafter the 1st Defendant's operation costs are to be deducted and the balance to be paid to the Baenao tribe.
     
   • (5) Permanent injunction is granted to restrain the First Defendant, their agents, associates, friends and subsidiaries from entering and carrying further logging related activities without the lawful authority of the Claimants.
     
   • (6) The First Defendant to pay the Applicant's costs.
     

Order accordingly.

THE COURT