Kagovai v Tingi'ia [2013] SBHC 30; HCSI-CC 21 of 2013 (2 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 21 of 2013

BETWEEN:

TONY KAGOVAI, TOM SITEI AND
NELSON TUATA
Claimants

AND:

JOHN JAMES TINGI'IA
First Defendant

AND:

SOLOMON ECO LUMBER LTD
Second Defendant

AND:

SUMLINSUM (SI) LTD
Third Defendant

AND:

GREEN HILL ENTERPRISES LTD
Fourth Defendant

HEARING : 19 February 2013
RULING : 2 April 2013

M Bird for the Claimant
A Rose for the Defendants

RULING

[1] The Claimants have filed their amended claim on 12 February 2013 while this application was filed earlier on 31 January 2013. They seek these orders in the application:

1. That the First, Second, Third and Fourth Defendants are to account for the logs felled, exported and sold from logging activities carried out on Magogawa Customary Land and or forest within the Gegese access road, on Rennell Island, Rennell and Bellona Province.
   
2. That proceeds from logs extracted, exported and sold by the First, Second, Third and Fourth Defendants from the land referred to in paragraph 1 above, be held in trust pending determination of the issues in these proceedings.
   
3. That the First, Second and Third Defendants be ordered to pay to the Claimants and their tribal members royalties payable to them by virtue of an agreement dated 28th February 2009.
   
4. The Claimant also seeks costs.
   

[2] The agreement of 28 February 2009 relates to civil case no. 185 of 2008. In that case, among other things, the Claimants were represented by Tom Sitei and Kikolo Tetuha. The Defendants were John James Tingi'ia and Eco Lumber Ltd, who are the First and Second Defendants in this claim and application. That agreement, among other things, provided two vital conditions. They were: (1) that civil case no. 185 of 2008 is to be withdrawn and (2) that John James Tingi'ia and Solomon Eco Timber Ltd recognise that the trustees of the tribes specified in that agreement were to become joint trustees with John James Tingi'ia of Magogawa customary land. This agreement is marked Exhibit "TK1" as attached to the sworn statement of Tony Kagovai filed on 31 January 2013.

[3] The logging operation then resumed in June 2012 on Magogawa customary land. The logging continued to January 2013 as confirmed by Exhibit "TK2" attached to sworn statement of Tony Kagovai filed on 31 January 2013. Tony Kagovai deposed that since the Defendants resumed logging operations, no timber royalties were paid to the trustees being included with the First Defendant under the agreement of 28 February 2009, signed by the First and the Second Defendants and the representatives of the Joint Trustees (the Claimants).

[4] The claim in this case was filed on 31 January 2013 and was amended on 11 February 2013. There appears to be no defence in the case file. It is also noted that the relief sought in the claim and the application are precisely the same. The First Defendant would probably file a formal defence in due course to the claim. In his sworn statement filed on 13 February 2013, he denied the truth of the statements in paragraphs 1, 2, 4, 5, 7 to 11, 16 and 17 of the statement of the case in the application. If that is done, then there would be delay in the trail of the claim, as the issue of customary ownership of Magogawa land would have to be referred to the Chiefs, and, most probably to the customary land courts for determination.

[5] It would seem that the First Defendant was not sincere when he signed the agreement dated 28 February 2008, which led to the Claimants withdrawing their Civil Case No. 185 of 2008. If he had been honest about his view that the Claimants have no customary rights over Magogawa Land, then he could have raised the issue then, for the Chiefs and the Customary Land courts to deal with it there and then. By being silent about that issue until the present time, has enabled the Defendants to harvest more trees from the land possibly to the detriment of the Claimants.

[6] This is a case where the issue regarding ownership of Magogawa could be referred to the Chiefs and the Customary Land courts for determination. The process would take a long time to complete. In that view, the Claimants need to know whether timber royalties are still there to be distributed. No information about that has been given by the First Defendant. This not a straight forward case like in the case of Tovua –v- Meki (1988-1989) SILR 74.

[7] I have read the sworn statements from the Claimants and the Defendants. Further, I heard submissions from Counsels for the parties. My view is that the following orders should be made: (1) Orders 1 and Order 2 are refused; Order 3 is granted and costs to be paid by the Defendants. The case is adjourned for mention on 2 May 2013 at 9.30. Order accordingly.

THE COURT