Rua v Rifalea [2013] SBHC 61; HCSI-CC 202 of 2011 (5 June 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 202 of 2011

BETWEEN :

JEREMY RUA AND OLIFOA RAAGA
Claimant

AND:

SIPIRIANO RIFALEA
First Defendant

AND:

NEW VENTURE LIMITED
Second Defendant

RULING : 5 June 2013

A Nori for the Claimant
M Tagini for the Defendant

RULING

1. This is an application filed on 23 September 2011 by the Defendants for: An order that the interim orders made on 3 June 2011 be set aside; (2) costs of the application be paid by the Claimants and (3) any orders the court deems fit.
   
2. The First Defendant is the owner of Fataleka Development Association (FDA), the Licensee. The Second Defendant is the contractor pursuant to a Management and Technology Agreement dated 20 August 2010. On 26 November 2009, FDA submitted a Form 1 Application for timber rights over Subea Ano, Subea Fuliabu, Subea Gwaunakware and Subea Langi. On 30 2010, the Malaita Provincial Executive convened a timber rights hearing as required under the Forest Resources and Timber Utilisation Act ("the Act"). A determination was made that Raphael Rokoiola, Ephraim Fulomea, Peter Otoa, Severino Feteota, Augustine Fiukwai and William Buafilu as the lawful persons able to grant timber rights over Subeano land. No appeal was lodged by anyone including the Claimants against this determination as required by the Act. No appeal was made against anyone including the Claimants. Accordingly, on 5 May 2010, a certificate of no appeal was issued. On 1 June 2011, Form IV agreement was executed between the First Defendant and Second Defendant and the grantors of timber rights on Subeano Land. On 11 August 2011, Felling Licence no. A101002 was issued to the First Defendant. Form III was issued on 24 June 2011 certifying Form IV signed between the First Defendant and the grantors of timber rights over Subeano Land. On 11 August, Licence No. A101002 was issued to the First Defendant. On 12 August 2010, the First Defendant applied for development to the Ministry of Environment, conservation and Metrology. On 20 August 2010, the First Defendant signed a Management and Technology Agreement with the Second Defendant. On 29 September 2010, Development consent was issued to the First Defendant. The steps alluded to in this paragraph; demonstrate that the Defendants have fully complied with all the requirements under the Act. The Claimants have not challenged the validity of the licence issue to the First Defendant. It would therefore seem that the only remaining issue before this court is one of the customary ownership.
   
3. As the Applicant correctly submitted, this court does not have jurisdiction to determine this issue. This issue can only be determined by the Chiefs, Local Court and customary land appeal court as the case may be. The Defendants submit that in absence of any claim against the grantors of timber rights over Subeano as in this case, the Claimants claim must fail as there is no claim against the Defendants.
   
4. It seemed that the interim orders were applied for and granted to stop the logging operation on Subeano Land. Any issue regarding the customary ownership of Subeano is to be heard by the Chiefs not this court. Even though the interim orders were granted by the court, they were never engrossed by relevant counsel to be signed and served on the parties. The court will set aside the interim orders. Order accordingly.
   

THE COURT