Kokanihau v Marahao Forest Development Corporation Ltd [2012] SBHC 95; HCSI-CC 139 of 2010 (27 August 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 139 of 2010

BETWEEN:

Dick Kokanihau and John Irimaeana
Representing themselves and members of the
Ma'ara'ara Tribe of West Are Are, Malaita Province)
Applicants/Claimants

AND:

Marahao Forest Development Corporation
Limited
First Respondent/Defendant

AND:

Wilson Tahioa, Aloysio Manerou and
Anderson Horihanua
Second Respondent/Defendants

AND:

Ocean Trading Company Limited
Third Respondent/Defendant

AND:

The Attorney General
(Representing the Commissioner of Forests)
Fourth Respondent/Defendant

Mr. Marahare for the Applicants/Respondents
Mr. Zama for the Second Respondents/Defendants

Date of Ruling: 27 August 2012

RULING

Mwanesalua J:

[1] This is an Application filed on 26 January 2012 by the Applicants. They seek the following orders against the Second Respondents: (1) namely Chief Wilson Tahioa, Solomon Wara, Amos Raenaitoro, David Mane, Jack Oriainiu, Moses Warihiru, Steward Wara, Stanley N. Rake and Patrick Hisuota be punished for contempt of the Orders of the Court made on 16 August 2010 and subsequent orders of the court made in the proceedings; (2) An order that the road blocks made by the above named Defendants and their agents be removed forthwith; (3) costs of and incidental to this application; and (4) such further and/or other orders as may be just in the circumstances.

[2] The orders of 16 August 2010 were filed and perfected on 18 and 19 August 2010 respectively. Paragraph 1 to 5 of the Orders are in these terms:

"1. The First to the Third Defendants, by themselves, their agents and/or servants are restrained from felling any trees and logs from the Toroniaro concession area pending further orders of the court.

2. The First to the Third Defendants, by themselves, their agents and/or servants are restrained from felling any trees and logs from Toroniaro concession area until the validity of the First Defendant's felling licence A-10826 over Toroniaro concession area and/or the issue as to the determination of the ownership of and the boundaries between the Ma'ara'ara and Toroniaro customary lands are fully determined before the appropriate forums.

3. The First to the Third Defendants shall within 14 days from the date of this Order account to the court, records of all marketable tress felled on Toroniaro concession area since the commencement of their operations to the date of this order including the details of:

(a) Species, quantity and prices of logs extracted from Toroniaro concession area; and

(b) The quantity of logs already sold and/or exported as at the date of this order.

4. All royalty payments due to the landowners representing 12.5 per cent of proceeds from all marketable trees exported shall be paid into a joint account set up in the names of counsels for the parties and to remain there until further Orders of the Court.

5. The Fourth Defendant shall within 14 days from the date of this order disclose to the Applicants all the relevant materials pertaining to Toroniaro concession area that are in the Fourth Defendant's or his agents' possession or custody"

[3] This is an application to punish the persons listed in paragraph [1] above, for alleged breaches of paragraphs 1 to 5 set out in paragraph [2] above, and all Defendants on breach of subsequent orders. The burden of proof lies upon the Applicants, and the standard of proof is beyond reasonable doubt[1].

[4] There is no evidence that the persons named in paragraph [1] above permitted felling of trees on Toroniaro customary land in connection with this application. It was Robert Rihuoha who forced Pacific Venture (SI) Ltd "PV Ltd" to cut nine vetix trees on Toroniaro customary land for his own personal financial benefit. However, although Rihuoha is a member of the Toroniaro Tribe which allegedly owns Toroniaro customary land, there is no evidence to prove that he was an agent of the First to the Third Defendants. In Fact, PV Ltd which cut down the trees for Rihuoha, is the logging contractor engaged by Taiarata Integrated Forest Development Company Limited ("TIFDC") under its felling licence to carry out logging on Ma'ara'ara customary purportedly owned by the Applicants and their tribe.

[5] There is a logging road being constructed through Toroniaro customary land to access Ma'ara'ara customary land. The agreement for the construction of this road was signed between TIFDC and the Toroniaro Land Committee on 12 April 2010. The agreement allows TIFDC and PV Ltd to construct the access road for purposes of their logging operations on Ma'ara'ara customary land. The definition of "access road" in that contract includes the construction of the main logging road, skidding roads and road infrastructures.

[6] A supplement Access Agreement to the above access agreement was made on 27 June 2011, between TIFDC and the Toroniaro Tribal Land Committee. This agreement allows TIFDC and PV Ltd to construct an Access Road through the disputed portion of Toroniaro customary land for purposes of their operations on Ma'ara'ara customary land and other customary lands covered by TIFDC's Felling Licence.

[7] There was an order of this court filed on 9 September 2011 and perfected on 12 September 2011. That order allows the Claimants, their agents and servants unrestricted passage through the disputed area, namely, Toroniaro customary land to the undisputed area, namely, Ma'ara'ara customary land.

[8] Then by order of this court filed on 28 February 2012 and perfected on 28 February 2012, the Second Defendants, their agents and servants were ordered to remove all road blocks mounted on Toroniaro concession area and allow the Claimants including their agents and servants unrestricted passage through the Totoniaro concession area until further orders of the court.

[9] By further order of this court filed on 5 March 2012 and perfected on 6 March 2012, in Civil Case No. 27 of 2012. Order 1 states: "1. Defendants, their tribesmen, agents, servants, relatives and or employees be restrained forthwith from blocking or otherwise interfering with the Claimant's use of the access roads, subject of the road access agreement dated 12 April 2010.

[10] On 5 March 2012, an order of this court directed Provincial Police Commander Malaita in directive No. 2 that police visit the disputed site, monitor the road block and make a report to the Registrar of the High Court. The police visited site and made a report dated 17 March 2012. The reported shows that the road block was lifted on Wednesday 7 March 2012.

[11] Dick Kokanihau, one the Claimants representing the Ma'ara'ara tribe made a further statement in support of this application on 5 March 2012. He annexed a joint Report ("the Report") published by the Ministry of Forests and Research on the alleged trespass and illegal logging by TIFDC and PV Ltd on Toroniaro customary land. The report states, among other things, that Wilson Tahioa had blocked the access road from any machines or logs to be hauled to the log pond, and that TIFDC and PV Ltd work force had remained at the camp without harvesting any logs from Ma'ara'ara Custom Land. There are logs still lying along the access road which Wilson Tahioa prevented from being hauled to the log pond as shown in Fig 10.0 on page of 6 of the Report.

[12] There is evidence that Wilson Tohioa was in breach of court orders referred to in paragraphs 9 and 10 above when he blocked the access road to and from Ma'ara'ara Customary Land. He is guilty of contempt of court which is punishable by fine or committal to prison. This is his first breach of court orders and will merely pay a fine.

Order:

1. The road block be removed permanently.

2. The Second Defendants pay the Claimants costs of and incidental to this application.

3. Wilson Tahioa to pay a fine of $300.00 for contempt of court within one month from the date of this Ruling.

THE COURT

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^[1] Hitukera v. Hyndai Timber Co. Ltd Civil Case No. 132 of 1992, in Judgment delivered on 23 July 1992.