Peseika v Kaipua [2016] SBHC 128; HCSI-CC 294 of 2016 (2 August 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN: EDDIE PESEIKA & DAVE KAITU’U - Claimants

AND: SILVANS KAIPUA - 1^st Defendant

AND: INTERPORT TRADING AND AGENCY - 2^nd Defendant

AND: OCEANIA CO. LTD - 3^rd Defendant

AND: ATTORNEY GENERAL - 4^th Defendant

Ms. A. Willy for Claimants
Mr. Zama for 1^st, 2^nd & 3^rd Defendants
Mrs. Tagini for 4^th Defendant
Ms. S. Munamua for 5^th Defendant

Hearing and Judgment: 2^nd August 2016

Application for injunctive orders preventing logging pending hearing

Brown J:

Reasons for decision

This claim comes by way of Category Claim A seeking a declaration that the 3^rd defendant Oceana Company Limited’s felling Licence is null and void as a result of illegality.

As a consequence, the Marketing Agreement with Interport Trading and Agency is also null and Void.

The claimants also seek damages for trespass and unlawful conversion, although it is not clear from whom these damages are sought since the 1^st defendant is alleged to be one of the landowners of portions of land within Namalaga customary land and one who signed a standard logging agreement.

The 4^th defendant represents the Commissioner of Forests who issued the Felling Licence no. A101176.

Part of the Statement of Case deals with the Timber Rights hearing on the 11 June 2014 by which the Provincial Executive determination about the concession known as Namala/Baputugi Customary land was stayed pending determination of a court case.

An appeal was taken by Jeffer Tuhagenga to the Central Island Customary Land Appeal Court [CLAC] in relation to the finding of the Provincial Executive [RBPE], according to the record of the Court;- “ Briefly on the 6 June 2014 the RBPE determined in favour of the 2^nd respondent [Interport Trading and Agency] as the right people to grant timber rights on Agapogabu/Baitupu and extended to Namalaga and Baputugi customary land located in West Rennell.”

It may be said that the CLAC erred in failing to determine those persons able to grant timber rights over Namalaga customary land, but the Court accepted the existence of land disputes unresolved when the RBPE proceeded to determine the Timber Rights hearing. Again the CLAC accepted the second ground of appeal was made out by the appellant, for the CLAC accepted that the RBPE was wrong to award the timber rights to the company, Interport Trading.

The third ground of appeal was not made out and need not concern us here.

As a consequence, the CLAC accepted the two grounds of appeal and set aside the RBPE determination of the 11 June 2014 for the persons named in the Form 1 were not the right people to grant timber rights over Namalaga and Paputugi customary land. That finding was not justified but in the circumstances, it does not matter for the RBPE had addressed the issue differently.

In Civil Case 565 of 2015, ex parte injunctive orders were granted Jefter Tuhagenga against Interport and presumably Oceania Trading Company [as second defendant] and the proceedings came before my brother judge, Justice Keneniapisia on the 17 February 2016 who ruled on the 6 April that the ex parte injunction should continue, until trial but on the 25 April, the proceedings were discontinued by Mr. Tuhagenga. Since the injunctive orders were not varied, they are still in effect pending further court order, unless I have not been appraised of that order.

Nevertheless, the proceedings now come before me in relation to the claim.

The claim is out of time if it is an appeal from the CLAC determination but the claim, although couched as Category A really attacks the very issue of a determination by the RBPE affecting Namalanga customary land for it can be seen the RBPE stayed determination in relation to the land while the ownership issues were heard in other places.

The CLAC has set aside the findings of the Provincial Executive without finding those able to grant timber rights, or in this case, expressly accepting the RBPE’s reason for delaying any such finding.

The apparent confusion arises from the Executive’s form of words, for it says;- “If the land ownership issues decision in pending cases appear in favour of the consent to the application. The applicant can precede with forms 4 and 3 of his application to the land determined by the Executive as STAYED pending court procedures.”

But the RBPE had expressly excluded the land from any determination
The CLAC order cannot affect the earlier stay of proceedings. It is curious that notwithstanding the failure to complete the process through the timber rights hearing the Forestry Commissioner has in apparent agreement allowed logging in the area. There is dispute over ownership, a dispute recognised by the RBPE.

These claimants seek orders over lands claiming as owners, while awaiting a decision from an appropriate tribunal. It is not clear whether the Council of Chiefs have determined ownership of Namalaua & Baputugi customary land but in any event the Council decision plays no part in these proceedings when considering the license to log.
I am not satisfied the logger is aware that the license issued was issued without proper authority since unconditional approval had not been given by the RBPE. It is curious that no persons were likely to be found to be able to grant rights under the FR & TU Act.

In the circumstances an injunction to stop logging over Namalau and Baputugi land shall issue.

The injunction shall remain in force until the RBPE hears any further application to utilize the FR & TU Act to log that custom land.

The claimants seek in the Cat. “A” proceedings, a declaration which is in my discretion. Since the license is without basis in that the RBPE has made no recommendation to the Commissioner of Forests in terms of the Act, following findings, the license is null and void as it affects Namalua/ Bepuitui land. I make a declaration in those terms.

The CLAC orders are quashed.

The claimant also seeks damages for trespass. A damages claim needs to be based on ownership and the claimant has shown the basis in undecided. That claim fails. The Tech and Marketing agreement has been entered into by mistake.

In the circumstances, in the light of the injunction now affecting the company, it will complete its obligation to date and will furnish accounts sufficient to enable an apportionment if need be, of Royalties and other moneys owing to those lawfully entitled once ownership in question of any land logged, has been determined.

The proceedings are settled on the basis of the orders for an injunction and my findings in relation to the CLAC and RBPE decisions.

Each party will pay his own costs.

These extempore reasons were given at the time and now are reduced to writing.

BROWN J