Itea v Evita (SI) Ltd [2015] SBHC 3; HCSI-CC 46 of 2014 (3 February 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

CC NO. 46 of 2014

BETWEEN:

LYNUS ITEA,
JOHN ITEA,
JAMES MAEGALIA,
LYNSON ITEA AND FRED BAE
(Trustees representing the landowners of Burara Land,
Fakanakafo, East Fataleka, Malaita Province)
Claimants

AND:

EVITA (SI) LTD
Defendant

Date of Hearing: 26th January 2015
Date of Ruling: 3rd February 2015

Mr L Kwana for the Claimant
Mr J Keniapisia for the Defendant

RULING

FAUKONA J: This case was commenced by way of ex parte application for interim injunctive orders. It was filed on the 20th of February 2014 together with the relevant documents. A claim in Category A was filed on 9th April 2014.

2. The ex parte application was never heard. Instead an inter parte hearing was opted for. This had allowed the Defendant to file an application to strike out as a response to the application for Injunction by the Claimants.

3. Apparently there are two applications on foot, which this Court decided to hear them jointly and at once. An application by the Claimants for an "Interim Injunctive Orders" and an application to "Strike Out" by the Defendant.

Application for Interim Injunctive Orders

4. A dispute emanates when the Defendant entered into burara customary land, assertively without the consent of the Claimants, and undertook what it terms as commercial investment, principally in areas of road and social infrastructure, agro-developments, housing, removal of illegal logs felled and facilitation of registration of burara customary land.

5. What could have been perceived as permissive was an invitation letter of 15th January 2014 endorsed by an executive of an incorporated body, Burara Principal Landowners Trust Board, and addressed to the Defendant. This was supposed to be a fall-over from 24th January 2014 when the Board was legally incorporated.

6. The discrepancy noted is that the invitation letter, which headed Burara Principal Landowners Trust Board Incorporate was written nine (9) days before the formal incorporation of the Trust Board on 24th January 2014, which carry on the name. Some people are fond of using business name incorporate to reflect their business activities without legal birth of that entity. I think that is absurd and should be abstained from. It is ideal that a company or organisation must first be incorporated before exerting the true nature of business it intended to undertake.

7. This boils down to an argument advanced by the Claimant, whether the Defendant has complied with the relevant laws to enter burara customary land and establish commercial business undertakings. The Claimants point out by reference to Exhibits L16 and L17 attached to Lynson Itea's Sworn Statement filed on 20th February 2014. Exhibit L16 is a letter dated 28th October 2013 from the Solicitor for Claimants who by paragraph 2 says, "We have been instructed that you are about to conduct timber extraction and felling on burara customary land, East Fataleka". By the end of October there is clear evidence that the Defendant was yet to enter the land. Exhibit L17 is a letter from one Mr Gua dated 17th November 2013, advising the Defendant to cease any operation currently undergoing on burara customary land. It would appear from the second letter by implication that the Defendant was already undertaking business activities on the land in November 2013.

8. That confirms paragraph 18 and 19 of the Claim, which states that felling of trees occurred towards the end of 2013 and logging operation machineries landed in early 2014.

9. In an attempt to substantiate the date of entry by the Defendant into burara customary land, I refer to the land lease agreement. In fact, it was a customary land lease agreement, which was executed by concern parties on 6th March 2014 but came into effect on 24th January 2014. If felling by chainsaw occurred towards the end of 2013, then the entry by the Defendant was improper as the purported lease came into effect as of 24th January 2014, three (3) weeks later.

10. If the allegation of felling of trees or logging or milling did take place then the question pose is, has the Defendant Felling Licence to enter burara customary land and conduct logging operation. Alternatively, has the Defendant a Special Permit to fell and sell forest produce under s.4 (1) (c) of the Forest Resources and timber Utilisation Act? So far as felling licence is concerned, there is no evidence to reveal such. In regards to Special Permit, the Defendant had resubmitted its application on 6th March 2012 to the Commissioner of Forests. On advice by the Attorney-General dated 20th March 2012 clearly stated that there is no provision in the Act or Regulations empowering the Minister or the Commissioner of Forests to issue Special Permit. And so the entry into burara customary land was not which the provisions of FRTU Act provided for, but perhaps reliance on the customary land lease agreement executed on 6th March 2014.

11. Noted that the entry into burara customary land according to the Director of Environment and Conservation was for the Defendant to undertake plantation development, whichever plantation development was not specifically stated. However, paragraph 2 of the Development consent confine the Defendant from indulging in any other development apart from plantation development. Is logging plantation development? No, anything to do with agro-forestation is different from reforestation. Agro-forestation deals with agricultural developments, whereas reforestation concentrated on replanting of forest after harvesting, felling and extraction, or even on new farm land.

12. From evidence, the path the Defendant relied on as providing legal entry is through the customary land lease agreement. It appears that the Defendant is an investment company incorporated under the Company Act which is foreign own. The question whether there is provision in the law that allows individuals or a legal entity to lease customary land is not clear from the Land and Titles Act. What Part V, Division 1 focusses on is purchase or lease of customary land to the Commissioner of Lands or to a Provincial Assembly.

13. In this instance, there was nothing done, and the Customary Land Lease Agreement relied on by parties as providing legal entry into burara customary land by the Defendant to carry out logging or any business activity is controversial. Any lease of customary land by business entrepreneurs must go through the process set out in Part V, Division 1 of the Land and Titles Act. That is the only route. The step taken by the Lessors in this case is new and cannot be entertained.

14. The serious issues ought to be considered at trial is, on what legal basis authorised the Defendant to enter burara customary land with intention to undertake massive commercial operation including logging activities? Is the presence of the Defendant on the land tantamount to trespass? Having identified the issues, the next requirement to consider is where does the balance of convenience lies? Evidence has revealed the Defendant's entry into burara customary land is controversial, hence the balance of convenience is not difficult to decide, where it falls.

Application to Strike Out or Stay of Proceedings

15. The other issue, which comprised the second application to strike out is whether the Claimants have an endorsement from their tribe to represent them in this case. Rule 3.42 requires proof be provided of their entitlement. Usual proof normally entertain by Court is production of a minute of a tribal meeting in which the tribe conceded and agreed by endorsement that the Claimants are rightful persons to represent them in this case.

16. Mr Keniapisia argues that there is no proof in a form of written endorsement by the Claimants' tribe, agreeing that the Claimants could represent them. In the absence of tangible evidence, the Claimants have no standing to file a claim against the Defendant.

17. In addressing the issue, a number of references is considered. Firstly, there is argument that the Claimants rely on a document of incorporation of which they had incorporated Burara Trust Board on 27th July 2004. The problem with that document is that it was an incomplete document. A certificate of incorporation was issued but subject to names of Trustee who was yet to be provided. From the sworn statement filed in Court, the names of the trustees are not identified and made available.

18. Then again another incorporation of Burara Principal Landowners Trust Board on 11th January 2014 with eight Trustees, all has Luiramo's surname.

19. It brings to my mind, to question why there are two incorporations of two Trust Boards in one customary land. Has the previous incorporation been terminated? There is no evidence to suggest or affirms so. The Claimants still maintain relying on the first incorporation as Trustees but no names in the incorporation document to verify the Trustees.

20. The second issue is the ownership of burara customary land. From documentary evidence, the issue of ownership is well settled. That burara land was owned by Itea and Luiramo and their Rakwane tribe. Both men are brothers.

21. From evidence, it is apparent that the Claimants are from Itea family and those who sign the Lease Agreement with the Defendant are from the Luiramo family. There can be no doubt the dispute in this case is between the children of two brothers whose names appeared in the previous Court cases as a party and which they own burara customary land. Emerged from that, a conclusion can be drawn that the current saga and dispute is between one family. One family agrees with the Defendant's plan to develop the land and other disagrees. Perhaps disagreement was prompted because none of Itea family was part or participated in the execution of the Lease Agreement, hence, left out altogether. I feel the Claimants who represented Mr Itea whose name appeared in previous court records have standing and sufficient interest to come to court and express themselves, equally the same as those who executed the lease agreement with the Defendant.

22. I noted Mr Keniapisia's major submission seem to favour stay of proceedings or strike out and allow disputing parties to resolve their indifferences amicably by way of an alternative dispute resolution. Indeed Mr Keniapisia's suggestion is a way forward to resolve the dispute. The problem with that submission is that having this case strike out or stay to allow parties to negotiate proper representation or joint representation, perceived as not the best and is inappropriate. Whilst waiting for the parties to resolve their indifferences, the Defendant will continue to fell trees and convert them for their use, or other commercial business activities. Well, the operation if had already commenced must be temporarily ceased for a while to allow landowners go through the process of alternative dispute resolution.

23. The negative outcome, which is contrary to Mr Keniapisia's submission is that the Defendant's entry into burara customary land is controversial. It has failed to demonstrate that it has a Felling Licence or a Special Permit under s. 5(1) (a) in respect of contiguous land. Or a lease permissible under Part V Division 1 of the Land and Titles Act, as the only way customary land to be leased to investors.

24. Having considered the evidence before me, the best I could able to conclude is to grant the Interim Injunctive Orders and allow parties to negotiate alternative dispute resolution.

Orders:

1. Order restraining Defendant, by itself, its servants, associates or any other persons authorised by it from entering Burara customary land for the purpose of logging, agriculture, commercial undertaking, timber milling, felling of logs and other related activities, until the substantive claim is determined by the Court, or until such further orders.
   
2. Case adjourned to 12/2/2015 for Mention.
   
3. Costs of this hearing to be paid to the Claimants.
   

THE COURT