Wate v Pauato [2012] SBHC 84; HCSI-CC 413 of 2011 (13 August 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 413 of 2011

BETWEEN:

Chris Wate
First Claimant

AND:

Southern Forest Industry
Second Claimant

AND:

Sale Pauato and Ansa Wate
First Defendant

AND:

Jeffrey Isiola, Anderson Nihero,
Thomas Manehanita'ai, Kemuel
Kopepaina, Ben Horoi and Titus
Akosawa
Second Defendant

D. Marahare for the First and Second Defendants
D. Tegulu for the First and Second Claimants

Date of Ruling: 13 August 2012

RULING

Mwanesalua J:

[1] This is an application by the First and Second Defendants filed on 9 December 2011, against the First and Second Claimants for the following orders:

1. The ex parte orders made on 31 October 2011 against the First and Second Defendants be set aside pursuant to Rules 17.55 (a) and (c) of the Court Rules 2007.
   
2. An order directing that the proceedings in this matter be stayed pending the outcome of the hearings as to the ownership of the Arapuamora land as well as the appeal against the determination of the Malaita Provincial Executive dated 15th June 2011.
   
3. Costs of and incidental to this application.
   
4. Such further and/or other orders as may be just in the circumstances.
   

[2] The Defendants case is that the Ex parte orders ("the orders") be set aside on the grounds that: (1) They cause hardship in that they prohibit access to firewood and building materials on the land; the court was under the impression that the Defendants were milling timber for sale; and the Defendants had no locus standi to obtain the orders as they were not in possession of a decision from the Chiefs or the Local Court as to the ownership of the land.

[3] The First Claimant is the sole proprietor of the Second Claimant, which lodged an application to conduct logging on the land. The members of the Malaita Provincial Executive ("the Executive") conducted a timber rights hearing over the land on 8 June 2011. The Executive found that the Trustees of the land have allowed the Second Claimant to carry out logging on the land. On this basis, the Executive accordingly accepted the Second Claimant's application to conduct logging on the land.

[4] However, on 14 July 2011, an appeal was lodged against the determination of the Executive of 8 June 2011, to the Malaita Customary Land Appeal Court. That ground of appeal was based on forgery, customary ownership of the land and non-compliance with provisions of the Forest Resources and Timber Utilisation Act (Cap. 40).

[5] On 2 September 2011 the First Claimant found out that Sale Pauato was milling timber from the land and sold some of it to Ben Wainiu. The Tress on the land would be harvested by the Second Claimant but since an appeal against the determination of the executive is pending before the Malaita Customary Land Appeal Court, the orders of this court are in aid of that forum.

[6] The First Claimant deposed that he inherited customary rights including ownership of the land from his father who passed away in 2003. The Defendants have not lodged any objection to the Second Claimant's application to carry out logging on the land during the timber rights hearing.

[7] The issues raised in the appeal are serious and need to be heard and decided by the relevant forum. The court has considered the grounds advanced by the Defendants to set aside the orders, but consider that there is a need to maintain the status quo between the parties until the appeal is heard.

[8] I will grant application to stay this proceeding to allow appeal to be heard by the appropriate forum. Parties to bear their own costs of this application. The orders are to be maintained. That parties have access to the land for purposes of accessing food gardens, firewood, drinking water and materials for housing excluding felling of trees for timber.

THE COURT