Kokanihau v Marahao Forest Development Corporation Ltd [2011] SBHC 183; HCSI-CC 139 of 2010 (8 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 139 of 2010

BETWEEN:

DICK KOKANIHAU, JOSEPH KENISU'ANA AND
JOHN IRIMAEANA (Representing themselves and members of the
Ma'ara'ara Tribe of West Are'Are, Malaita Province)
Applicants

AND:

MARAHAO FOREST DEVELOPMENT CORPORATION
LIMITED
First Defendant

AND:

WILSON TAHIOA, ALOYSIO MANEROU
Second Defendants

AND:

OCEAN TRADING CO. LIMITED
Third Defendant

AND:

ATTORNEY-GENERAL
(Representing the Commissioner of Forests)
Fourth Defendant

HEARING: 31 August 2011

RULING: 8 September 2011

D Marahare for Applicants
No appearance for First, Second and Third Defendants
D Damilea for Fourth Defendant

RULING

Mwanesalua J:

1. This is an application by the Applicants filed on 11 August 2011 for:

(1) An order that the Applicants, by themselves and their agents be allowed unrestricted passage through the disputed area for purposes of accessing the undisputed portion of the Ma'ara'ara Land that is part of the concession areas affected by the felling licence No. Tim 2/46 held by Taiarata Integrated Development Co. Limited.

2. The applicants have been granted timber rights over the undisputed portion of the Ma'ara'ara land to Taiarata Integrated Forest Development Co. Limited (TIFDC), the holder of felling licence No. Tim 2/46 issued by the Commissioner of Forests on or about 11th August 2011 which will remain valid until 7 April 2015.

3. TIFDC in turn engaged the services of Pacific Venture (SI) Limited pursuant to a Technology, Marketing and Management Agreement dated 8^th February 2011 to carry out logging in the undisputed portion of the Ma'ara'ara Land. All formalities and requirements have been satisfied to enable the Applicants and agents to proceed with felling on Ma 'ara'ara Land and other concession areas.

4. The Applicants, in order to gain entry onto the undisputed portion of the Ma'ara'ara Land, they will require access into the disputed portion of land currently affected by the court orders. There is already an access road into the disputed land and that the Applicants or their agents do not have to construct fresh access roads.

5. The Applicants for that reason entered into an agreement dated 18^th June 2010 with the second Defendants to ensure that TIFDC and its contractor are afforded unhindered access through the disputed land to the undisputed portion of the Ma'ara'ara land for purposes of the logging operations.

6. The Applicants also rely upon the provisions of the Road Access Agreement dated 12^th April 2010 and the provisions of a Supplementary Road Access Agreements dated 27th June, 2010 which further supports the true intention of the Second Defendants to grant unhindered access to TIFDC and its agents through the disputed land.

7. The instant case has been adjourned sine die to allow the issues of the ownership of the disputed land in custom to be determined by the appropriate forums. There were already determinations by the Chiefs and the Local Court. However, an appeal by the Second Defendants to the Malaita Customary Land Appeal Court is pending determination by that forum.

8. The court has considered the submissions by counsel for the Applicants and the statement of this case. The court is satisfied that there is material to grant the order sought by the Applicants. Order accordingly.

THE COURT