Kidoe v Tozaka [2011] SBHC 43; HC-SI CC 135 of 2011 (30 June 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 135 OF 2011

BETWEEN:

EDDIE MAENA KIDOE, MARVIN LEZUTUNI, FRANK NINAMO, DAVID KUTELEWIN KIDOE, MARY LULUKU, DONALD ODIKANA AND GWEN ABANA
Claimants

AND:

DALCY TOZAKA AND JACK LAGOBE
1st Defendant

AND:

RERESARE DEVELOPMENT COMPANY LIMITED
2nd Defendant

AND:

KALENA TIMBER COMPANY LIMITED
3rd Defendant

AND:

THE ATTORNEY-GENERAL (Representing the Commissioner of Forests)
4th Defendant

Date of Hearing: 24 May 2011
Date of Ruling: 30 June 2011

P Tegavota for the Claimants
J Sullivans QC and T kama for the 1st and 2nd Defendants
G Suri for the 3rd Defendant
R Firigeni for the 4th Defendant

RULING

Mwanesalua J: This is the inter partes hearing of the Interim Restraining Orders granted to the Claimants on 15 April 2011, against the First, Second and Third Defendant from:

(1) Remaining on Reresare/Veala Reresare Land.

(2) Felling and Extracting Logs.

(3) Construction of logging and other spur-roads

(4) Exporting logs already felled, and

(5) Carrying out of any log related activities wheresoever on Reresare/Veala Reresare Land.

2. That the Second and Third Defendants, their servants, agents, employees, persons authorised by the Defendants and including their logging machines and equipment to be removed or vacated from any part of Reresare Land/Veala Reresare land forthwith from the date of the Orders.

3. That any sales proceeds derived from the Logs exported or sold out of Reresare Land/Veala Reresare Land be paid into an Interest Bearing Account in the names of the Solicitors for the parties and shall not be withdrawn until further order of the Court.

Penal Notice

That any breach of any of the terms of these orders shall amount to a contempt of Court punished by fine or imprisonment or both fine and imprisonment.

4. The First Defendant is a member of the Reresare tribe and a Director of the Second Defendant.

5. The Second Defendant is a company owned by members of the Reresare tribe of Vella La Vella.

6. The Second Defendant held a Felling Licence No. AI007, issued on 9 November 2004 over Reresare Customary Land (Stage 1) which expired on 8 December 2009.

7. On 18 February 2011, the Commissioner of Forest Resources (Commissioner) granted Amended Licence No. AI007A over the whole of Reresare Customary Land as an extension of Licence No. AI007 which was previously granted over Reresare Customary Land (Stage 1).

8. When Felling Licence No. AI007A which will expire on 21 July 2015.

9. The Claimants are also members of the Reresare tribe who own the Veala Reresare land covered by a coconut plantation inferred from the evidence.

10. The Third Defendant is a company registered in Solomon Islands and carries on the business of logging in Solomon Islands. The Third Defendant is engaged by the second defendant to carry out logging activities on Reresare Customary Land on Vella La Vella.

11. The Third Defendant applied for an approval of a harvesting plan from the Commissioner. That approval was granted by the Commissioner of 24 March 2011. The First, Second and Third Defendants have landed machines and carried out logging activities when the interim restraining orders set out above have been imposed against them.

12. The Claimants did not seek to maintain the Interim Restraining Orders during the inter parte hearing. It is obvious that the final determination of the ownership and authority over the whole Reresare Customary land was made by this Court in HCSI No. 142 of 2006, Jack Lagobe and Others –v- Odika and others, per Foukona, J on 24 October 2008 and affirmed by the Court of Appeal on 27 April 2009.

13. Application to strike out this Civil Case.

14. Third Defendant made application on 29 April 2011 to strike out the action – CC No. 135 of 2011. It is heard on 24 May 2011 in conjunction with the inter partes hearing of the interim restraining orders.

15. The first issue raised is that Marvin Lezutuni and Harry Luluku's names be removed as claimants in the action. This is because they were both dead before the action was commenced. The First Defendant confirmed so in his Sworn Statement. Rule 3.25 of the Solomon Islands Courts (Civil Procedure) Rules 2007 only covers claimants who die after a civil case has started. There is no evidence of appointed personal representatives of these deceased persons. I exercise Court's inherent jurisdiction to remove their names as claimants in this action.

16. The claimant's assert that their Form 2 gave them the legal standing to impugn this standing logging Agreement and Felling Licence granted to the Second Defendant. The status of the Form 11 had been determined by Cameron PJ[1].

17. Further, it is considered that Form 2 is now ineffective and superseded by the final determination of the issues of land ownership and authority, over the whole of Reresare land by the High Court in HC-SI No. 142 of 2006, Jack Lagobe and Others –v- Odikana and others, per Foukona J and as confirmed by the Court of Appeal.

18. This action is devoid of any real serious issues to be tried and accordingly it will be struck out.

Order

1. Injunction made against the First, Second and Third Defendants is discharged.
   
2. Civil Case No. 135 of 2011 is struck out.
   
3. Claimants to pay Defendants' cost on Indemnity basis.
   

Dated this 30th day of June 2011.

THE COURT

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^[1] HC-SICC No. 14 of 2010, Eddie Maena & Others –v- the Premier & Others