North New Georgia Timber Corporation v Golden Foundation Development Company Ltd [2011] SBHC 166; HCSI-CC 72 of 2011 (9 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 72 OF 2011

BETWEEN:

NORTH NEW GEORGIA TIMBER CORPORATION
Claimant

AND:

GOLDEN FOUNDATION DEVELOPMENT COMPANY LIMITED
First Defendant

AND:

SPRING HILL LIMITED

Second Defendant

(Applicant)

Date of Hearing: 14 November 2011
Date of Ruling : 9 December 2011

M. Pitakaka for Claimant
A. Tongarutu for Applicants

RULING

1. This is an application by the Applicants filed on 30 June 2011 seeking Orders for the dismissal of the claim on the grounds that:

(1) The claim is frivolous, vexatious and an abuse of the Court process and/or;

(2) No reasonable cause of action is disclosed;

(3) Any other orders the Court deems fit to make; and

(4) Order for costs personally against Job Duddley Tausinga.

2. Background

On 1 December 2010[1], Egan Rove Jnr. and Kiko Tinamanae, acting on behalf of the Duvaha Community ("the Community"), wrote to the Chairman of North New Georgia Timber Corporation ("NNGTC") requesting the consent of its Board to allow the Community to extract timber trees standing on the land areas from Tomoko River to Ravete inlet in Gerasi Land ("these land areas being marked in a map attached to their letter"). A similar request was made by the Community to NNGTC in 2006 (when the Community Development Programme was began) seeking consent by NNGTC Board allowing the Community to extract timber trees standing on the land areas between Duvaha and Tita. NNGTC Board granted its consent under Licence. Proceeds from this operation enabled the Community to establish a self-sustaining Ko-i-Rao Eucalyptus High School, construct a sports field which has since hosted two major tournaments, and extend the community oil palm plantation, and re-afforestation projects[2].

On 1 December 2010, some 16 NNGTC Directors representing Gerasi, Hepa-Barora, Mase-Hepa, Rodana and Koroga Customary lands (Land areas enacted in the NNGTC Act), wrote to the NNGTC chairman rendering their collective consent in support of the request of the Community. Their collective consent was granted in recognition of the success and achievements of the first phase of the Community Development Programme.[3]

On 20 January 2011, the NNGTC Chairman, (Mr Aquila Talasasa) wrote a letter to John Dean Kuku authorising him to discuss the position of the NNGTC Board with Golden springs International (SI) Company Ltd.[4] The position of the NNGTC Board is that consent was granted to the Community to extend their development programme over the land areas from Tomoko River to Ravete Inlet in Gerasi Land. The consent granted include consent to the Community to extract timber trees standing on these land areas.

Thereafter being authorised to discuss the Community request with the Golden Springs International (SI) Company Ltd, (the NNGTC") Contractor Company). Mr Kuku held discussions with the company representatives who were there and then informed Mr Kuku that they had no objections to the request. A follow up meeting with the Company was convened but that time Job Duddley Tausinga had already intervened so the attending Company Representatives told Mr Kuku that they would stay neutral and silent on the issue and let NNGTC Board sort it out.[5]

Based on the consent of the NNGTC Board and the non-objection of the NNGTC contractor company, the Defendants, on 9 December 2010, entered into a Technology, Management and Logging Agreement (the Agreement)[6]. The Agreement between the Defendants is to clear, fell the timber trees standing on the land areas from Tomoko River to Ravete Inlet in Gerasi Land making way for the extension of the Community Reforestation and Oil Palm Plantation Projects.

On 23 March 2011, Job Duddley Tausinga filed this present claim under the guise of the NNGTC alleging that:

(1) NNGTC did not consent to Duvaha Community request;

(2) Illegal logging on Gerasi Customary land; and

(3) Fraudulent use of NNGTC name to export logs harvested from Gerasi Land.

3. The Application

Based on the foregoing, the Defendants pray that these proceedings be dismissed on the grounds that the claim is frivolous, vexatious and discloses no reasonable cause of action and is therefore, an abuse of the Court process.

In support of their prayers, the Defendants say as follows:

4. NNGTC Board Membership of Job Duddley Tausinga.

This present claim was filed by Job Duddley Tausinga under the guise of the NNGTC on 23 March 2011 whereas his purported NNGTC Board Membership was revoked by the Minister of Forestry on 17 March 2011, and that is 6 clear days before the filing date.

Job Duddley Tausinga, then Minister of Forestry, appointed himself as a NNGTC Board Member representing Koroga Customary landowners in North New Georgia. The schedule of the NNGTC Act lists the late Holy Mama (father of Tausinga) as one of 4 Tribal Chiefs to represent Koroga Customary Land. The custom practice is that either the tribal chief himself assures membership or nominate his Representatives to serve on the NNGTC Board. The successor of the Late Holy Mama is his Grace, Sir Egan Rove (eldest son of late Holy Mama referred to as the Authority). That is, the Authority of the Christian Fellowship Church. As the successor of the Holy Mama, the Authority becomes one of the Tribal Chiefs of Koroga with powers to nominate his Representative on the NNGTC Board. There is nothing on the evidence adduced to the Court to show that the Authority nominated Job Duddley Tausinga as his Representative on the NNGTC Board.

5. NNGTC Board Membership of Okano Zamakana

As in the case of Job Duddley Tausinga, there is nothing in the evidence adduced to the Court to show that Chief Lasi Peloko nominated Okano Zamakana (now deceased) as his representative on the NNGTC Board. In fact, Job Duddley Tausinga, when Minister of Forestry, appointed him as a NNGTC Board Member representing Gerasi Customary Land owners in North New Georgia.

Given that the membership of Job Duddley Tausinga and Okano Zamakana constitute an unlawful unilateral act by Tausinga who abused position as then Minister of Forestry, coupled with the fact that the appointment of Tausinga has been properly revoked and that Zamakana is now deceased, it is submitted that they were not proper persons to bring this action pretending to act on behalf of NNGTC and its Board and therefore, his claim be dismissed.

6. NNGTC Board Consent

The claim alleges that the NNGTC Board did not consent to the request by the Duvaha Community to extend their development programme on to the land areas from the Tomoko River to Ravete Inlet in Gerasi land, Yet there is substantial evidence deposed to and adduced under the Sworn Statements of John Dean Kuku (current NNGTC Board Member) and Aquila Talasasa (current NNGTC Board Chairman) that the Board granted consent to the request of the Duvaha Community.

7. No Objection by Contractor Company

Both Deponents also state that the Contractor Company did not object to the request by the Community except that after the intervention by Job Duddley Tausinga, the Company opted for political expediency by resolving to let the NNGTC Board sort it out. In other words, the Company's saying that whatever the NNGTC Board decides goes. And the decision of the Board is to grant consent on request from the community.

As a result, the logging on Gerasi Customary Land is legal and the export of logs harvested from it is proper as opposed to the allegations stated in the claim.

8. The Applicants' Case

Based on the matters which they have alluded above, they submit that these proceedings be dismissed as it is frivolous, vexatious and disclosed no reasonable cause of action and is an abuse of the Court to continue pursuing it.

The Applicants further submit that the NNGTC Board had on 19 August 2011 informed their Counsel and the Registrar of the Court that the Board had passed a resolution to withdraw this claim against the Defendants.

9. Mr Pitakaka, Counsel for the Claimant raised triable issues. The Court has perused the sworn statements in this claim. There are issues raised about grant of permission to the Community to log and carry out developments on land under the control of NNGTC; unauthorised harvesting of logs; the legitimacy of the Felling Licence under which the community used to carry out logging on NNGTC concession area; the legitimacy of Job Duddley Tausinga's removal from NNGTC Board. This Court would require to hear the testimony of witnesses in court to get to the truth on the issues raised in this claim. The Court is of the view that this is not a claim which can be summarily dismissed.

In the circumstances, the application to strike out the claim is refused and is dismissed with costs. The Defendants are to pay the Claimant's costs of this application.

Order accordingly.

Adjourns 26/01/2012 at 9.30am for mention.

THE COURT

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^[1] See Annexure “JDK6” of Sworn Statement JD Kuku filed on 30 March 2011.
^[2] See Paragraph 1 of Annexure “JDK6” of Sworn Statement of JD Kuku filed on 30 March 2011.
^[3] See Annexure “JDK7” of the Sworn Statement of JD Kuku filed on 30 March 2011.
^[4] See Paragraph 11 and Annexure “JDK8” of Sworn Statement of JD Kuku filed on 30 March 2011.
^[5] See paragraph 12 of the Sworn Statement of JDKuku filed on 30 March 2011.
^[6] See Annxure “IZI” of the Sworn Statement of Joseph Zio filed on 30 March 2011.