Gabu v Omex Company Ltd [2013] SBHC 76; HCSI-CC 297 of 2012 (2 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No: 297 of 2012

BETWEEN:

RAPHAEL GABU, FRANCIS RERO, PHILIP SILI, BATHOLOMEW ALICK AND COLEMAN VUKE
(Representing the Raravo land owning group)
Claimant

AND:

OMEX COMPANY LIMITED
First Defendant

AND:

LORENSIO TANGISI, LOGINO VANABO AND PETER ROBO
(Representing Qiloto Loki and Qiloko Kiki Tribal group)
Second Defendant

Date of Ruling: 2 July 2013

Mr. Hauri'i for the Claimant
Mr. Tigulu for the Defendants

RULING

1. This is an application filed by the Claimant seeking the following orders: (1) that the First Defendant export all the logs felled from Raravo Land that remained at the stump sites within 21 days as of the date of this order; (2) that the First Defendant haul all the logs felled from the stump sites to the log pond for export; (3) that all the 75% of the proceeds from export of the logs apart from the 25% payable to the SIG to be deposited into a joint solicitors' bank account after the proceed of the logs is cleared by the relevant bank until further orders of the court; (4) An order restraining the First Defendant from holding onto any or whole of the 75% of the proceeds of the export in its own account or otherwise; (5) An order that the First Defendant to provide the Claimant and its solicitor with all export details of all the logs felled and extracted from Raravo Land within 7 days of the date of export; (6) An order that the export details include copies of the Commissioner's approved specific authority application, the sales contract between the buyer and the First Defendant, commercial invoices of the exports, log summary of the export, total number of cubic meters of all the logs, the total FOB value and any detail pertinent to the export of the said logs; (7) An order that the Claimant and the Defendants with the assistance of the Forestry Assessment team to assess all the logs felled, harvested and extracted from Raravo Land without interference, disturbances and blockages of any sort by the Second Defendant or their agents and servants; (8) An order that an environment assessment on environmental impact on Raravo Customary Land and its tambu sites by an independent person or group with fair representation by all parties without any interference, disturbance or blockage by the Second Defendant, their agents or servants. Alternatively: (9) an order that the First Defendant to pay to Claimant and deposited into solicitors' joint account a sum equivalent to 60% of the FOB value in accordance with the approved determined Log Price of the Ministry of Forestry for all the Logs felled, harvested from Raravo Land and upon assessment of the total cubic meters, if the logs are no longer exportable and not exported pursuant to order 4 above; (10) An order that the Second Defendant to pay to the Claimant and deposited into solicitors' joint account a sum equivalent to 15% of the FOB value in accordance with the Determined Log Price of the Ministry of Forest for all the logs felled, harvested and extracted from Raravo Land and upon assessment of the total cubic meters, if the logs are declared not fit for export and not exported pursuant to Order 4 above; (11) An Order that monies deposited into solicitors' joint account may only be withdrawn upon consent of both parties by way of court order; (12) An Order that Penal Notice to be attached to the orders of the court; and (13) Any other orders the court may think fit and just.
   
2. Satona and Raravo customary lands are situated on West Guadalcanal. According to the evidence of Mr. Coleman Vuke the lands are separate with their own boundaries. Raravo land is owned by the Claimants and that ownership in custom has been decided on by the Satona-Tabavelu House of Chiefs on 21 May 2012.
   
3. The First and the Second Defendants carried out logging on Satona customary land. The First Defendant is logging contractor for the Second Defendant who owns various customary lands. This decision of the said House of Chiefs has not been appealed to the local court.
   
4. There is evidence that First Defendant's Form 1 and Form 4 (Logging Agreement) did not cover Raravo Land. Its felling Licence also did not cover Raravo Land. That means that the First and the Second Defendants committed trespass on the land. Its removal of tress for timber from the land was illegal. It has no doubt destroyed cultural and/or ancestral tambu site and an ancient village site, disturbed the soil and the land environment. It has neglected and possibly refused to haul felled logs to the log pond for export. Damages against the First Defendant would be huge if the logs felled are left to rot at their stump sites. Such damages would be lessen if the First and the Second Defendants take appropriate action under the orders sought if they can agree to the sale of the felled logs with the Claimants.
   
5. In the circumstance, the orders sought by the Claimants are granted. However, they may need to be amended to suit the circumstance of this case.
   

THE COURT