Togamana v Theigu [2016] SBHC 138; HCSI-CC 163 of 2016 (4 August 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: HON. DR CULWICK TOGAMANA & - 1^st Claimants
EPHRAIM SORUMANA[Representing
The Thavia Tribe]

AND: BELA GASEGOU AND MARGARETH - 2^nd Claimants
ELA PENTORO[Representing the Pegu Clan,
Thavia Tribe]

AND: REUBEN THEIGU, REGINALD WAGA - 1^st Defendants AND JOSHUA KAHEMAE[Representing
Themselves and Tofru Land Trustees]

AND: PATTESON RINI, EDITH HESLYN GASEFORU, - 2^nd Defendants
& OTHERS [Representing themselves and Togajahi
Land Trustees)

AND: SIA ENTERPRISE LTD - 3^rd Defendant

AND: GREEN TREE (SI) CO. LTD - 4^th Defendant

AND: ATTORNEY GENERAL [Representing the - 5^th Defendant
Commissioner of Forest]

1. Willie for Claimants

P. Tegavota for 1^st, 2^nd, 3^rd & 4^th Defendants
D. Damilea for 5^th Defendant

Date of Hearing: 4 August 2016

Applications for declarations that felling license and subsequent agreement are void and of no effect through illegality

Brown J:

The proceedings have not been defended. The claimants have satisfied me that the Provincial Executive did not recommend logging on the two parcels of land affected by Licence A10750 which subsequently issued. That logging Licence was issued by the Commissioner of Forests.

From reading the statement of Rodlock Sorumana, it is clear that he played no part in the Deed of Settlement purportedly between the Tofru Landowners whereby they purported to set aside the determination of the Isabel Provincial Executive dated 3 June 2014, and purported to find particular named persons as lawful, entitled to grant timber rights.

These named persons included the 3 named persons in these proceeding as the 1^st defendants. The Forest Resources and Timber Utilization Act sets out a statutory regime which need be followed before Timber Rights may be granted by those found to have much right.

The statutory regime cannot be circumvented by persons seeking to appoint themselves, in this case, the 1^st defendants as having the right to allow logging. It is plain that the logging Licence affecting Tofru was issued by fraud attributable to the 1^st defendants, when I have regard to the sworn statement. The fraud may not be attributed to the Commissioner of Forests but the act if issuing the logging License was illegal in any event. Since the License also affects Togajahi customary land and in the absence of proper process under the Act, I make the declarations in accordance with terms 1 and 2 of the applications sought by the claimants, through the illegality of process. The declarations are within my discretion since they affect acts of the 5^th defendant, for the Commissioner of Forests has not followed the procedure laid down or regime of the Act.
Counsel for the claimants will need to settle the terms of the declarations before execution by the court. Costs of today will follow the event.

__________________
BROWN J