Green Hill Enterprises Ltd v Pacific Crest Enterprises Ltd [2015] SBHC 32; HCSI-CC 37 of 2015 (27 April 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

CIVIL CASE NO. 37 OF 2015.

BETWEEN:

GREEN HILL ENTERPRISES LIMITED
First Claimant

AND:

SAMLIMSAN (SI) LIMITED
Second Claimant

AND:

PACIFIC CREST ENTERPRISES LIMITED
Defendant

Date of Hearing: 25th March 2015.
Date of Decision: 27th April 2015.

Mr M. Pitakaka for First and Second Claimants
Mr D. Marahare for the Defendant

DECISION ON INTER-PARTE HEARING

Faukona PJ: This is an inter parte hearing following ex -parte orders granted by this court on 25th February 2015. A claim was filed on 12th March 2015. The claim seeks inter alia, certain reliefs in terms of declaration for trespass, conversion of trees and damages and permanent injunction.

2. In response to the interlocutory orders the Defendant has on 9/3/2015 filed another application for interlocutory orders, and to strike out the orders of 25th February 2015. The content of that application is basically to strike out as well as opposing the Claimant's application, that the interim orders be discharged, or alternatively set aside or vary or any subsequent amendment thereof. It appears so that the application to strike out is inclusive of the interlocutory proceedings and the claim.

3. A dispute arose as to which felling Licence covered tebaipuke customary land (land in issue) on West Rennel, Renbel Province. To ascertain the truth, reference has to be made as to who represented all persons entitle to grant timber rights to fell trees. The boundaries of tebaipuke customary land were identified in a map shown as Exh. PKD10 attached to sworn statement of Pau Kiu Den filed in 12th February 2015. The boundaries demarcation seems to agree with map Exh. WTN1 attached to Wyn Tekiou's sworn statement filed on 3th March 2015.

4. The Claimants claim that tebaipuke land is among four lands which Mugihenua Investment Co. Ltd (MICL) applied to negotiate to acquire timber rights. The Claimants also claim they had prior agreement with MICL in which they assisted MICL in its application on the condition they will be the logging contractor once MICL acquired the felling licence.

5. On 15th January 2015, the Provincial Executive (Renbel) identified Dick Sau'uhi, Ian Tebaibakiu and Stewart Charles as persons entitled to grant timber rights on tebaipuke customary land and that was in respect of Kagua/Magautu concession area.

6. On 1st May 2014 a Standard Logging Agreement was endorsed by Chief Norman Sa'ogahtogha on behalf of Mugihenua Investment Co. Ltd and Mr. Evans Tuhagenga and Mr Rodney Nasiu on behalf of kagua/magautu customary lands.

7. Eventually a felling licence No. A101250 was issued on 4th June 2014 in respect of kagua/magautu customary land concession. On 10th June 2014 there was a Management and Technology Agreement executed by MICL and the first Claimant as Contractor. Tebaipuke customary land was never included in the Standard Logging Agreement as well as in the licence No. A101250, the same with the development consent issued on 4th July 2014 and as well as the annual harvesting plan for 2015, issued by the Commissioner of Forest per his letter dated 23rd December 2014.

8. On 10th June 2014 MICL entered into Logging and Marketing Agreement with its contractor the first Claimant to fell and extract logs from kagua/magautu customary lands.

9. It would appear the timber rights processes in respect of tebaipuke customary land is yet to be finalised despite the fact that the grant of timber rights by the grantors who had been identified and determined by the Provincial Executive.

10. On the other hand the Defendant is a contractor for Mugaba Atoll Resources Co, holder of felling license No. A101182 covering gagoniu concession inclusive of tekugango customary lands. From the map as Exh WT1 attached to sworn statement of Wyn Tekiou filed and the maps Exh PKD1 and PKD10 attached to the sworn statement of Pau Kiu Den filed on 12th February 2015, seemed to indicate the same concession but was descried under two different customary names. They are gagoniu concession and kagua/magautu concession. If that assumption is of paramount concern then the real boundary between the two concession areas ought to be specifically defined with proper demarcations. In any event neither of the two licences covered tebaipuke customary land. There is evidence shown in paragraph 7 of 8 of sworn statement of Mou Tak Kee filed on 9th March 2015 with maps exhibit 1, 2 and 3; which congruently similar to the notion expressed in maps Exh. WTN1 attached to Tekiou sworn statement. From my observations it appears that Ian Tebaibakiu, one of the grantors identified for tebaipuke land in MICL timber rights hearing owns three other parcels of customary land known as hagetapu, mugihenua and magoita which were under gagoniu concession area which are adjacent to tebaipuke customary land.

11. Mr Tebaibakiu after being determined as one of the grantors in MICL timber rights hearing on 15th January 2013, made a supplementary agreement with the Defendants on 12th November 2013 to carry out logging activities as sub-contractor on tebaipuke land under the licence No. A101182. The original standard logging agreement has to be shown so that a supplementary agreement which normally flows from the original agreement is suffice evidence revealing the responsibilities and liabilities of the parties as a new development to supplement the old and original agreement. In this case there is nothing shown.

12. In normal practice engaging a contractor to conduct logging operation is done by the licencee. If the logging operator wishes to sub-contract its duties and responsibilities it may be done through consent by the licensee. In any event none of the technology contracts involves the land owners or the grantors. Standard logging agreement or supplementary agreement are events that involves the applicant who desires to acquire timber right and the grantors on behalf of the customary land owners. They normally take place prior to issuant of a felling licence. If a grantor does not wish his land be covered by the licence of the applicant but prefer another regime (in this case Mugaba Atoll Resources Company), which at that time was already being issued with a licence. There are procedures in the Forest Resources and Timber Utilisation Act which provide the extension of Mugaba Atoll Resources licence to cover tebaipuke customary land before contracting someone to conduct logging activities. Without a felling licence no contractor or subcontractor will enter any customary land for the purpose of felling and extraction of logs. Engaging a contractor or subcontractor is the work of the licence holder through marketing and technology agreement. It has nothing to do with landowners. Landowners may express preference but there is nothing they can do. The problem encountered by Mr Tebaibakiu is that Licence No. A10182 has never covered tebaipuke customary land. Therefore, the supplementary agreement has no effect in standing. He may not agree with MICL as proposed contractor, but option is left for him. He could have signed a SLA with MICL and followed suit is identification of a contractor to his taste. There was nothing done at all. In reality Mr. Tebaibakiu appears to be a controversial individual.

13. On 14th May 2012 Mr Tebaibakiu executed an MOU with one Mr Baiabe and Mugaba Atoll Resources that his three customary lands be granted right of inclusion to Mugaba Atoll Resources Company. On that date Mr Tebaibakiu by conduct expressed interest to have a deal with Mugaba Atoll. For some reasons he agreed that tebaipuke land be included in MICL concession area which had reached Form 2 stage, determination by Provincial Executive. Rather than accomplishing timber rights process with MICL, Mr Tebaibakiu executed a supplementary agreement with the Defendant on 12th November 2013, nine (9) months after the determination, which identified him and two others as grantors of tebaipuke customary land. Further, on 4th March 2015, he wrote to the Commissioner of Forest requesting a cancellation of the Technology and Management Agreement signed between MICL and the first Claimant as contractor. He might probably have rights as one of the Directors of MICL but that technology agreement does not concern tebaipuke customary at all, but kagua/magautu concession area. It is apparent that Mr Tebaibakiu's dealing in logging operation on Rennel Island is questionable and very controversial.

14. Further still there was a letter on 25th October 2014 written by the Land Trustees of tebaipuke land requesting revocation of consent and withdrawal from MICL concession. That request was further reinforced by a letter from Mr Tebaibakiu on 18th February 2015 and addressed to MICL for release of tebaipuke customary land. On 19th February 2015 MICL management replied and agreed to formally released tebaipuke customary from MICL concession boundaries.

15.
Unfortunately Mugaba Atoll Resources Company felling licence No. A101182 was suspended by letter from the Commissioner of Forests on 16th February 2015, three days before formal release of tebaipuke customary land from MICL concession. The effect of that suspension is that all logging activities by Mugaba Atoll Resources Company be suspended.
16.
The major effect is, if the Defendant had entered into tebaipuke land and conduct logging on 19th February 2015, the date of formal release, or on any date immediately there-after, then that entry was illegal by virtue of suspension on 16th February 2015. If the entry was done before 19th February 2015 then it would be controversial because by then tebaipuke land was yet to be released and was not covered by any felling licence at all.

17. Noted as well is a reply letter dated 19th November 2013 to the request by Mr Tebaibakiu for the construction of an access road to connect the province road to provide an access to kagua and the airport. However attached to the acceptance letter is a condition which vested legal responsibilities upon Mr Tebaibakiu. If the access road was to run through tebaipuke customary land after the executive determination, then Mr Tebaibakiu may have exercised some rights to do so as one of the grantors. Constructing access road would mean felling of logs. If the intention was to export the felled logs then there must be a felling licence on foot before such activities can take place.

18. I now return to the claim and the ex-parte orders. The crux of the Claimants' claim is a reliance on a Logging and Marketing Agreement executed between MICL and the first Claimant. The first Claimant is regarded as a sister Company of the second Claimant. There is no issue that tebaipuke customary land is under MICL application and is pending completion. But has never been under felling licence No. A10125 issued to MICL on 4th June 2014. That licence only covers kagua/magautu customary lands.

19. What the Claimants are expecting because of their assistant to MICL, is that as soon as MICL acquired licence for tebaipuke customary land they will be the contractors. That expectation is a proprietary interest. The prevailing factor of such an interest is expressed in two case authorities refer to by the Claimants Counsel. However, I think the case of DJ Graphics V Ag[1] is more appropriate.

20. In that case His Lordship Palmer J at that time, cited various tests and subsequently concluded that;

"A person who has a real cause of complaint will obviously have real question, a real interest, and naturally, should have a proper contradictor. Similarly, a person whose rights have been substantially and immediately interfered with will obviously have a real question, a real interest and a proper contradictor".

21. In this jurisdiction S.83 (1) and (2) of the Forest Resources and Timber Utilisation Act use the word 'interest' which the applicant must possess which are being or is likely to be affected by the contravention alleged. In the case of Kenilorea V AG[2] His Lordship Daly J applied the "sufficient interest" test propounded by Denning M.R and Ackner L.J in R V IRC. Exp. Federation of Self Employed (1980) 2 W.L.R 579. That test was adopted in Ziru V AG (3).

22. In this case the Claimants interest is proprietary in nature which hopefully will materialise in the future, subject to MICL acquiring a felling licence over tebaipuke customary land. The problem likely to be encountered by the Claimants is, if, however, MICL never was issued with a felling licence would that interest continues to prevail? If along the way there is intervening factors which will render no possibility for MICL acquiring a licence? Then the interest rely on becomes non-existence and will have no effect.

23. In previous paragraphs I have outlined Mr. Tehaihaku's actions after the timber rights determination; he pursued by intention to market his rights to his land to others and abandoned MICL.

24. The Claimants cannot rely on the standard logging agreement executed by representative of kagua/magautu and MICL to foot a claim for trespass and damages. The Claimants were not a party to that agreement; that agreement was for a different land. Advancing interest which is subject to a condition to be fulfilled in the future is futile. In any event it is quiet remote.

25. Trespass to customary land is a matter vested upon the customary land owners and not the foreign contractors. In this case the Claimants are foreign own contractors who were engaged to logging on kagua/magutu concession area. They do not own customary lands. If the Claimants are so concerned about their interest the best option is to involve Mr Tebaibakiu as one of the Claimants. In this case Mr Tebaibakiu is not a party at all. And evidence has revealed he has abandoned MICL. Thus leaving the Claimants in an awkward position. Therefore their claim for trespass and damages for conversion of trees stands no ground and have to be stuck out. The manner in which this case was pursed is on wrong ground and must therefore be labelled as an abuse of Court process. I must therefore allow this application.

Orders:
1. The Claimant's claim filed on 12th March 2015 must be stuck out accordingly.

2. The Ex-parte orders granted on 25th February 2015 be discharged and dismissed.

3. Cost of this application be paid by the Claimants

The Court.

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^[1] (1995) SBHC 99; HC-CC 040 of 1999 (12 April 1995)
^[2] (1983) SILR 61