Labere v Kalena Timber Company Limited [2012] SBHC 41; HCSI-CC 211 of 2000 (18 May 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 211 of 2000

BETWEEN:

JOHN LABERE AND AGNESS VOTAIA
(Representing the Harero Tribe)-
Claimants

AND:

KALENA TIMBER COMPANY LIMITED-
Defendant

Date of Hearing : 15th February 2012
Date of Ruling : 18th May 2012

M. Bird for the Claimants
G. Suri for Defendant

RULING

[1] This is an application by the Defendant filed on 23rd September 2011 for: (1) An order that the claimants' claim be dismissed for want of prosecution; (2) An order that the interim injunction orders made by the court on 26th September 2000 restraining the Defendant from carrying on logging operations on Harero Land in Rendova Island, Western province, be set aside; (3) An order that the claimants pay to the Defendant damages to be assessed; (4) An order that the claimants meet the Defendant's costs from the commencement of the proceedings to now; and (5) Further and other orders as the Court deems fit.

The Facts

[2] On 10th January 1990, a timber Rights Agreement was signed between the Defendant and the Trustees for the Haforai, Hiriro, Irureqo, Oreasi, Ozileqo, Qai, Teborana and Tive Tribes on Rendova Island in the Western Province. As a result of this Agreement, the Commissioner of Forest Resources on behalf of the Government, issued a Felling Licence in the name of the Defendant. This Licence was to cover all the areas of land set out in the Timber Rights Agreement. The Licence was issued on 17th December 1991 and numbered TIM2/25 expiring on 7th December 2001 in accordance with the terms of the timber Rights Agreement. The Claimants were not at the Timber Rights hearing conducted by the Rendova Area Council on 11th, 12th, 13th and 14th April 1989 to determine who were the persons lawfully entitled to grant timber rights to the Defendant. The claimants discovered that Harero Land which they claim to be theirs had been included in the Timber Rights Agreement and the Defendant had conducted logging thereon without their authority.

The Claim

[3] The Claimants filed their claim against the Defendant on 15th September 2001. In their statement of claim, they seek the following orders:

(i) That the Defendant be restrained from conducting any further logging operation on the Harero land.

(ii) That any proceeds of the logging operation on the said land be made payable to an interest bearing deposit account with any commercial banks in Honiara.

(iii) That the Defendant to pay the claimants damages for trespass and conversion.

(iv) Any further orders that this court deems fit to make.

(v) Costs against the Defendant.

[4) In the meantime, the claimants through an ex parte application obtained interim orders against the Defendant on 26th September 2000. The orders were in these terms:

(i) The Defendant is restrained from conducting any further logging activities on the Harero Land.

(ii) The proceeds of any logging activities on the Harero Land be made payable to the Court until further orders.

(iii) Costs in the cause.

[5] On 3rd of October 2000, the Defendant made an application through a Notice of Motion against the Claimants to set aside the ex parte orders by the court on 26th September 2000. This Notice of Motion was heard by the Court on 12th and 13th February and 21st, 22nd and 27th June 2001. In his Ruling on 13th July 2001, Justice Kabui, as he then was, dismissed the application and ordered that the ex parte order should continue until trial of the Claimants' claim.

[6] In that same Ruling, Justice Kabui identified the three triable issues raised by the Claimants' statement of claim. First, is whether or not the Defendant's Licence was valid in so far as it covers Harero Land. Second, is whether or not Harero is a separate Land from Teborana. Third, is whether or not the Claimants are the owners of Harero land in custom.

Appeal to the Local Court

[7] After the High Court Ruling on 13th July 2001, the Claimants referred the issue on whether the Teborana and Harero Tribes are two separate tribes to the Roviana Chiefs. The hearing was held at the Munda Court House on 11th and 12th of September 2001. The Claimants did not want to continue the hearing on that issue with the five Teborana Trustees and so that issue was referred to the Local Court for determination. The Claimants filed a Form 1 with a fee of $50.00 at the Local Court at Gizo on 15th January 2002. The Defendant contends that the Claimants have not made any serious steps to bring this claim to finality. This court should therefore dismiss the claim for want of prosecution and grant the other reliefs sought in its application.

[8] The Claimants deny not doing enough to advance their appeal to the Local Court for hearing. They said they wrote to the Principal Magistrate at Gizo regarding their Appeal case, but did not receive any response from him. They exhibited documents marked AV3 in support of their submission. Three of these documents were dated 25th October 2001, 12th July 2002 and 10th October 2002. They denied receiving a letter written by Principal Magistrate, Western, dated 9th August 2006 addressed to the first Claimant at Lokuru Village, Rendova Island, Western Province. The Claimants said they never used that address at all.

[9] In my view, the Claimants need to do further work on their appeal to get it ready for the Local Court to hear it. The further work which needs to be done is clearly set out in the letter by the Principal Magistrate (Western) dated 9th September 2006. The completion of that task will fulfil the mandatory requirements of the Local Court Act 1985, before the appeal is ready for hearing.

Delay in Prosecution of the Claim

[10] This claim was filed on 15th September 2000. There was a delay of over eleven (11) years. But it is a claim which require the issues to be heard by the Local Court and then High Court. It concerns Customary Land which is very essential for sustaining the livelihood of the tribe who owns it: in terms of providing fresh drinking water, custom medicine, fertile land for gardening, firewood for cooking, materials for construction of houses and list goes on. On the other hand, the Defendant is only interested in extracting logs from trees on the land for export. Whether it can lawfully do so under its licence is yet to be decided by High Court. In these circumstances, it is essential that the Claimants immediately fulfil the remaining steps to be done on the appeal so that the Local Court can hear it. The Claim can then be heard if there is no appeal to the Customary Appeal Court.

Dismissal of the Claim

[11] The dispute between the parties will not be resolved if the claim is dismissed. The issues to be tried are already known to the Local Court and this Court. This Court will exercise stringent management of this claim from now on, which was absent after the inter parte ruling on 13th July 2001. The Defendant's application to dismiss the claim is refused and is dismissed.

Orders:

1. The application is dismissed.
2. Costs in the cause.
3. Case to be mentioned at 1.30 pm on 1st August 2012.
   

THE COURT