Vanguni v Dekurana Development Ltd [2013] SBHC 201; HCSI-CC 94 of 2012 (13 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 94 of 2012

BETWEEN:

VINCENT VANGUNI
Claimant

AND:

DEKURANA DEVELOPMENT LIMITED
1st Defendant

AND:

THE ATTORNEY GENERAL
2nd Defendant

CONSOLIDATED WITH CLAIM No. 96 of 2012

BETWEEN:

DEKURANA DEVELOMPENT COMPANY LIMITED
1st Claimant

AND:

XIANG LIN TIMBER (SI) LIMITED
2nd Claimant

AND:

OPORTUNITY KURU AND JOSEPH ZIO
Defendants

Date of Ruling : 13 May 2013

Mr. Tegavota for Claimant
Mr. Kaboke for 1st Defendant
Mr. Kii for 2nd Defendant

RULING ON APPLICATION IN CIVIL CASE NO. 94/12

[1] This is an application by Mr. Vincent Vanguni, ("the Applicant"), filed on 31 May 2013, for the determination of the following preliminary issues of law:

1. That in the absence of the Applicant as a signatory to the timber rights agreement, ("the Agreement") signed on the 20 January 2012 and the entry by the First Defendant with its logging contractor into Dekurana Customary Land ("the land") under Felling Licence No. 101107 "the Licence" to fell and extract logs from the land for the purpose of sale is unlawful.
   
2. That without the Applicant signing the timber rights agreement dated 20 January 2012:
   
   • (a) The agreement was not validly executed so as to authorise the felling and extraction of logs from the land for the purpose of sale.
     
   • (b) The licence does not constitute a valid licence under sections 4 and 5 of the Forest Resources and Timber Utilisation Act ("the Act") and therefore both the agreement and the Licence are null and void.
     

[2] The Commissioner of Forests ("the Commissioner"), represented by the Attorney General, consented to the application of the First Defendant ("Form 1") to acquire timber rights on the land owned by the Dekurana tribe. The Commissioner sent a copy of the application to the Western Provincial Executive ("WPE") under cover of his letter of 3 February 2011. The WPE then convened a timber rights hearing and made its determination on 20 May 2011 (Form 2). There were 17 trustees identified who were the persons lawfully entitled to grant timber rights to the First Defendant. The Applicant is one of such trustees, representing the Lehu clan of the Dekurana tribe. The other two trustees representing this clan are Kiko Tinamanae Sino and James Qora Pulekevu.

[3] Mr. Oportunity Kuku ("Mr. Kuku") lodged an appeal against this Form 2 decision to the Western Provincial Customary Land Appeal Court ("the court"). He contends that the WPE erred in omitting him as a trustee of the Lehu clan of the Dekurana tribe. In court, Mr. Kuku says that, the Applicant named four persons to be trustees for the Lehu clan. They were Kiko Tinamanae, James Qora Pulekevu, Mr. Kuku himself and the Applicant. The Applicant was absent when the court heard the appeal. The court heard submissions from the parties and perused the record of WPE on the timber rights hearing. The court noted from the record of the timber rights hearing by the WPE, that the Applicant merely requested the inclusion of three persons as additional trustees to the original list for trustees. The trustees to be added were Kiko Timanae, James Qora Pulekeva and the Applicant himself. Mr. Kuku was not recommended as an additional trustee during timber rights hearing. The court therefore found no mistake by the WPE in the determination of persons lawfully entitled to grant timber rights over the Land and accordingly dismissed the appeal.

[4] The case for the Applicant is as set out in paragraph 1 herein. The First Defendant case is that Claimant, Vincent Vaguni, was duly removed under customary law by consent of Dekurana Tribe and the Lehu Clan of the Dekurana Tribe members because he acted outside their interests by refusing to sign the Form 4 Agreement. There is evidence to show that the Claimant would merely sign the agreement if Mr. Kuku is appointed as a trustee.

[5] The Applicant acknowledges that he was identified as one of the 17 persons identified by the WPE as one of the persons lawfully entitled to grant timber rights over the Land. However, he says that he did not sign the agreement with the other 16 trustees with the First Defendant. As such, the agreement and the Licence issued to the First Defendant are both invalid.

[6] There are two issues regarding the Claimant as a trustee. The first is that he has self-interest in demanding that Mr. Kuku a person not duly identified by the WPE as a person entitled to grant timber rights to be appointed as trustee before he signs the agreement. And the second is that he refused to act collectively with the other trustees identified by the WPE to sign the agreement.

[7] The Claimant refused to sign the agreement because Mr. Kuku was not identified by the WPE as a person lawfully entitled to grant timber rights. This is obvious in the minutes of the timber rights hearing convened by the WPE. This was confirmed by the WCLAC which heard and dismissed the appeal by Mr. Kuku. The view of this court is that the demand by the Applicant to have Mr. Kuku as a trustee as a pre-condition for him to sign the agreement after the WPE had accomplished its task is not in accordance with the provisions of the Act.

[8] Further, the Claimant's approach to negotiate with the trustees to agree the inclusion of Mr. Kuku as a trustee after the Court had delivered its decision, is an obvious manifestation of his self-interest, which was detrimental to the collective action of the trustees to expedite logging operation on the land for the benefit of the landowners in terms of timber royalties.

[9] This is a case can be distinguished from the decision in the case of Vozoto v. Papakana [2008] SBHC 34. In that case, only two of the persons who were lawfully entitled to grant timber rights signed the agreement.

[10] In this case, the contrary occurred. Here one of the trustees, the Applicant, whom the law required to sign the agreement refused to sign. He refused to discharge his duty as a trustee to sign the agreement. In the circumstance, the agreement signed by the other trustees is valid. It follows, that the licence issued to the First Defendant is valid.

Order: 1. The agreement with the First Defendant is valid.

2. The Licence issued to the First Defendant is valid.
3. The Applicant will pay the Defendants' costs of this application.
   

THE COURT