Hatakera v Nenete [2013] SBHC 150; HCSI-CC 55 of 2013 (13 June 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 55 of 2013

BETWEEN:

JACOB HATAKERA
Claimant
(Representing himself and members of
Kaneporo Tribe)

AND:

JOHN NENETE
First Defendant
(Trading as Kaneporo Development
Enterprises)

AND:

JOHN PARSAD
(Trading as Tri Jam Enterprises)
Second Defendant

AND:

NEW WORLD LIMITED (20101054
Third Defendant

Hearing: 9 May 2013
Ruling: 13 June 2013

Mr. Zama for the Claimant
Mr. Rano for the First Defendant
Mr. Tagini for the Second Defendant
Mr. Suri for the Third Defendant

RULING

1. This is an application by the Second Defendant filed 29 April 2013 for the following relief: (1) that the proceedings herein be dismissed on the basis that this claim is frivolous and vexatious; (2) costs of this proceedings and any other Orders the Court deems fit.
   
2. The Claimant represents himself and the members of his Kaneporo Tribe ("the tribe") in an amended claim filed on 8 May 2013. In that amended claim the Claimant seeks the following orders:
   
   1. A permanent injunction restraining the First and Second Defendants, their agents or other persons acting under their purported authority from entering Kaneporo Customary Land ("the land") for the purposes of felling of trees or any other related activity; 2. A declaration that no valid timber rights hearing was conducted by Kaneporo Development Company in respect of the Land; 3.A declaration that the purported licence No. A10023 under the purported business name of Kaneporo Development Company ("the company") is null and void; 4. That the First and Second Defendants to produce an account for all logs of economic value felled, extracted and exported from the land, their volume, species and their true FOB value; 5. Damages for trespass limited to $5,000.000.00; 6. Damages for conversion of tree, logs felled on the Land; 7. Exemplary Damages; 8. Costs on indemnity basis; 9. Such further or other Orders as the Court deems fit.
      
   2. The Statement of case shows that the Claimants are members of the tribe.
      
3. The Second Defendant trades under the business name - Tri Jam Enterprises ("TJ Enterprise"). It controls the logging operation and purportedly carrying out the operation under Licence No. A10023 by Kaneporo Development Enterprises which will expired on 29 August 2013. It caused the Third Defendant to enter the Land as their contractor to fell trees and extract logs for export.
   
4. Third Defendant is duly registered in Solomon Islands. Its directors are Michael Ung Choung Lung, Ching Ngu Hou and Kui Ngu Hou. As mentioned herein, the First Defendant made a contract with the Second Defendant to carry on logging on the land. However, the Second Defendant does not have foreign investment approval to carry on such business on Vella La Vella or the Western Province.
   
5. The Claimant alleges that the Tribe has an established leadership or Chieftain system on logging activities or major developments on the land. General discussions on benefits on logging and major developments on the land are made by all members of the Tribe. On or about 17 October 2003, Licence No. 10023 was initially granted to Kaneporo Development Enterprises. This Licence covered Kaneporo customary land left hand the land. The Licence was valid for five years and that it expired on 17 October 2008. It was renewed for two years and expired on 29 August 2013 as mentioned in paragraph 3 above.
   
6. The Claimant contends that on or about 28 August 2011, the First Defendant and its associates renewed Licence No. A10023 under a purported business name called Kaneporo Development Company without the consent of the entire membership of the Tribe. The First Defendant and or its associates were never authorised by all the members of the Tribe to apply to the Commissioner of Forest Resources to renew the Licence under the name Kaneporo Development Company to cover the land excluding Wagena A; that no opportunity was given to all the members of the Tribe to seek independent legal advice; that there was no proper notice issued by the First Defendant of its intention to conduct logging on the land; the Claimant alleges that the First Defendant does not have the general support of the tribe for its logging operation on the land. And if the Defendants obtained the consent of the Tribe, then such consent was made after the claim was filed in court. The Defendants have not obtained development consent from the relevant Provincial Government to resume logging activities on the land. The Registrar of Companies has confirmed that his records do not contain any company or business by the name of Kaneporo Development Company.
   
7. There are legal issues pertaining to the right of the logging contractor to carry out logging on the land; the acquisition of timber rights over land; the validity of the renewed Licence No. A10023, issued to the unregistered company known as Kaneporo Development Company and the current logging operation by the First and Second Defendants.
   
8. The Claimant has filed Notice of Discontinuance against the First Defendant on 7 May 2013. And on 8 May 2013, he filed an Amended Claim against Parsad Benjamin, Parsad Dinesh, Parsad James Shanti and Parsad John Atasi (Trading as Tri Jam Enterprises) as the First Defendant and New World Limited (20101054) as the Second Defendant.
   
9. The issues raised in this claim cannot be decided at this stage of the proceeding. They can only be determined by the Court at the end of the trial when the evidence of the witnesses and full arguments of counsels are before the court. The application to strike out the claim is accordingly refused.
   

Order:

1. Application is refused and dismissed.
   
2. The proceeds of logs extracted and exported are to be deposited into a trust account in the joint names of Counsels in this case.
   
3. The current logging operation on the land is to be stayed until further order of the court.
   
4. The Defendants are to pay the Claimant's costs of this application.
   
5. The claim is to be listed for mention at a date to be fixed by the Claimant.
   

Order accordingly.

THE COURT