Koburu v Esi Land Holding Group Ltd [2016] SBHC 193; HCSI-CC 277 of 2015 (31 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 277 of 2015

BETWEEN:
ALICK KOBURU
Claimant
(Representing Esi Tribe, Hograno, Isabel Province)

AND:
ESI LAND HOLDING GROUP LIMITED
First Defendant

AND:
SUCCESS STAR (SI) LIMITED
Second Defendant

AND:
ATTORNEY GENERAL
Third Defendant
(Representing Commissioner of Forest)

Date of Hearing: 21^st September 2016.
Date of Ruling: 31^st October 2016.

Mr. M. Tagini for the Claimant.
Mr. J.S. Pitabelama for the First and Second Defendants.
No Appearance for the Third Defendant.

KENIAPISIA; PJ:

RULING

Introduction

1. Claimant filed application for ex-parte injunction orders with supporting Court documents on 26/6/2015. Court conducted inter-parte hearing, not ex-parte, as requested on 17/8/2015. Court granted injunction orders perfected on 28/8/2015. One of the interim orders granted was to restrain funds in a joint trust account in the names of the solicitors for the parties.
2. A week after the perfected orders, first and second defendants (“defendants”) through their former solicitor, DNS Lawyers, filed an application to dismiss the claim pursuant to Rule 9.75. That application was not listed. By November of 2015, defendants changed solicitors to JSP Legal Services.
3. At time of grant of the perfected orders, the defendants have yet to file materials: defence or sworn statement. Defendants did not file defence because they filed a conditional response on 2/9/2015. The perfected orders of 28/8/2015 were granted on the basis of information given to the Court on 26/6/15, by the claimant (one sided).
4. Under new solicitor, JSP Legal Services, defendants filed a defence on 18/11/2015. Defendants also filed an application to strike out the claim, which was filed 9/8/2015.

Today’s hearing

5. Court is dealing with three applications. Claimant’s two applications are for contempt (amended) and unless orders. Both relate to allegations that defendants failed to deposit proceeds from logging as per the perfected orders of 28/8/2015. Defendants’ application is for strike out of this proceedings. With consent from both counsels, all three applications were heard together, because they are inter-related.
6. Defendants initial application for dismissal of the claim was filed in September 2015 by DNS Lawyers. It was not heard quickly, obviously because of listing issues with the High Court. Then JSP took carriage from DNS and filed yet another application for strike out in November 2015. There is a long delay of defendants’ attempts to rid this claim and the injunction orders perfected 28/8/2015.

Perfected Orders of 28/8/2015 - Obtained by Fraud

7. It is clear from the materials that claimant obtained orders on its ex-parte application for injunction, by fraud. Claimant apparently committed fraud on the Court in obtaining the said orders.
8. From materials in support of ex-parte application for injunction, claimant presented to the Court, untrue facts, which apparently influenced the grant of injunction.

8.1 Firstly claimant said he acted as representative of the Esi tribe. This is arguable because Esi tribal meeting minutes in October 2015, did show that this case was not filed with the knowledge of Esi tribe. Esi tribe wants this case withdrawn.

8.2 Second is the allegation against first defendant’s felling license. That it was obtained contrary to the statutory regime, processes and requirements of the Forest Resources and Timber Utilisation Act (Cap 40) as amended (“the Act”). Materials disclosed subsequently raises doubt. It is quite clear there is due adherences to processes, procedures and requirements of the Act.

8.3 Third allegation that no development consent was issued is also doubtful. Materials disclosed later shows that there was a development consent.

9. Owing to the reasons in 8.1 – 8.3, Court will set aside the injunction order perfected on 28/8/2015. Court has power to set aside its orders subsequently, on the ground of fraud (Rule 17.55 (b)).

Esi Tribe’s Internal Dispute

10. From materials now before the Court, Esi tribe of which claimant is a member, has initiated a plan to harvest and utilise their forest resources. Evidence shows that this was an attempt to protect their land from other tribes that share common boundary with Esi tribe.
11. Esi tribe has asserted their rights of ownership and boundary before the land tribunals. The Esi tribe had utilized the Act to obtain felling license. All these efforts begun 2010/2011.
12. As part of the plan to harvest and utilize their forest resources, Esi tribe had established the first defendant (a business arm of the tribe). Changes to the Directorship and Shareholdings were made at the tribe’s wishes in October 2015. Court gathered from the materials, claimant’s Tofuara clan under Esi tribe is represented in the first defendant company by Director John Mark. Shareholder of the first defendant is Esi tribe members, holding 2000 shares.
13. It is apparent that claimant is a member of Esi tribe. Claimant is going up against Esi tribe. The ground for doing that is, there is no proper consultation within Esi tribe. Initially claimant alleged undue obtaining of felling license, no development consent and representing the tribe. All those claims are in doubt and/or arguable (repeat and reaffirm paragraphs 8, 8.1, 8.2 and 8.3).
14. Then most recently claimant attempted to proof representative capacity through a support letter. Court compared the support letter to the minute of the tribe’s meeting in October 2015. There were 35 tribal members at the 4^th October 2015 meeting as against the 15 tribal members who supported claimant to take this case. The October 2015 tribal meeting looked more organised. There was a chairman. Issues discussed and decisions reached can be seen clearly. Attendance list kept and venue of meeting mentioned (Galatha Village). Minutes has 5 pages. Claimant’s attempt to proof representative capacity would appear that he gathered support from 15 tribal members to write the letter of support. It is not clear if he got that mandate from Esi tribe as in a resolution emanating from Esi tribal meeting. The letter of support complains that Ishmael and Gregory have not done proper consultation.
15. Three of the names in the support letter also appear in the 4^th October 2015 tribal meeting minutes (Margaret Kahiqita, Michael Neremola and Jackson Ena). Are these not the same people?
16. On the available evidence, the felling license appears to have been duly obtained according to the processes, procedure and requirements of the Act. On the evidence, Court is satisfied that Ishmael Bresamana is a leader of Esi tribe. He represented Esi tribe in the land tribunals (Isabel Customary Lands Appeal Court, Isabel Local Court and Hograno High Lands and Hograno Central District Council of Chiefs).
17. Court is satisfied that this is an internal dispute not a dispute purely challenging the Timber Rights Acquisition process or felling license. The process has closed without an appeal to the Isabel Customary Lands Appeal Court. There is evidence of consultation in the tribe. May be claimant as a tribal member for some reason was not involved.

Esi Fresh Tribal Meeting must be convened

18. Court will set aside the injunctions orders because they were obtained through fraud or for failure to disclose the necessary facts and documents. Court will stay this proceeding under Rule 3.42, because there is dispute about claimant’s entitlement in custom to represent Esi tribe. Claimant, 6 named Directors of the first defendant, 2 Esi tribe signatories to the Standard Logging Agreement (dated 27/6/2014) must convene a fresh tribal meeting. Issues discussed at the 4^th October 2015 meeting Minutes to be revisited and resolved on among other relevant business. Proper Minutes to be kept. This case may only progress upon production of fresh tribal meeting Minutes.

Three Applications declined

19. Claimant’s applications for contempt and unless orders refused. Defendants’ applications for dismissal/striking filed by DNS and JSP are also refused. Court may entertain further applications after the meeting ordered herein. Reasons for these refusal orders are discussed in paragraphs 7 – 18 above.

20. Orders of the Court are:-

20.1 This case is stayed pending outcome of further tribal meeting;

20.2 Parties to meet their own costs and orders in paragraph 19 reaffirmed;

20.3 Monies restrained and already in trust account are still halted;

20.4 Court perfected orders of 28/08/2015 are set aside.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE