Kera v Poly Logging (SI) Ltd [2016] SBHC 218; HCSI-CC 135 of 2015 (19 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

TERRY KERA, HAGGAI KERAEKE NELSON HUTI, PHILIP TELA AND DAVID KERA (the Saikile Chiefs)
1^st Claimants

KALENA TIMBER COMPANY LIMITED

2^nd Claimant

AND:

POLY LOGGING (SI) LIMITED (Company No. 1000276)

1^st Defendant

MSL IMPORT 7 & EXPORT CO.LTD (Company No. 201210491)
2^nd Defendant

ATTORNEY GENERAL

(Representing the Commissioner of Forest

3^rd Defendant
RUPASI MARE, JOHN KILATU, CORNELIUS MURRAY, WILLIAM BANA AND ESAU UVELAMANA
(Representing Miduru tribe of Saikile,
Roviana Lagoon, Western Province)
4^th Defendant

Date of Hearing: 4 November 2016
Date of Judgment: 30 November 2016

Mr. G. Suri for 1^st and 2^nd claimant
Mr. M. Tongarutu for 1^st defendant
Mr. Banuve for 3^rd defendant

Application for freezing order and interlocutory injunctive order to prevent logging.

Brown J:

Reasons and orders.

By order of 17 April 2015, following an application by the two claimants, this court required Poly Logging [SI] Ltd to file an undertaking not to deal with the full log proceeds in any manner so as to dissipate the funds until after hearing of the application. An undertaking acceptable to the claimants was given by Lu Yuan Fang the General Manager of Poly Logging on the same day.

The application had been filed on the 13 April 2015 and sought, as well as the order shortly set out above, a series of orders preventing the 1^st and 2^nd defendants from logging operations in customary land described as Maepu in an Exemption Order made by the Minister of Forests published in Legal Notice no. 88 on Wednesday 29 October 2014 and ancillary orders requiring details of the logs felled, taken and sold from the site.

The balance of the application has come before me today. Counsel for the respective parties have addressed me on the material before the court. A great part of the evidence is un-contradicted and to an extent, counsel have addressed a question of law they say rather encompasses the issues. The only issue which appears to be unresolved by a finding on the legal effect of accepted facts is whether Maepu may be accepted as having been logged by the defendants despite their claim the land logged, Dekurana was separate from and wholly different land although land the subject of the Exemption Order. By application supported by the sworn statement of Rupasi Mare, John Kilatu, Cornelius Murray, William Bana, and Esau Uvelamanana filed on the 11 May 2015, these persons sought to be joined to enable the court to make a decision fairly and effectively in the proceedings. On the material filed, I grant such application and direct that they be named defendants in these proceedings. The joinder is made to effectively deal with the issues raised and any suggested consent required of the other parties, is dispensed with to enable the case to proceed without further delay. They shall be 4^th defendants.

The unaccepted facts need to be dealt with so that findings on balance, may be made to afford me basis for decision on the legal questions about the exemption Orders.

On the preponderance of evidence, I accept the claimant’s where they say their land has been logged by these defendants notwithstanding assertions to the contrary. By annexure to the sworn statement of Chief Nelson Huti filed on the 13 April 2015, Ronald Kitu, the Paramount Chief of Saikile recited the circumstances surrounding the apparent approval for the logging of Maepu land by these defendants. The land was declared as “Dekurana” in the Reservation by the Minister. Any purported approval for reservation in relation to that part of Maepu described as “Dekurana” was revoked following a public meeting called by Ronald Kitu where the consensus was to stop the intervention by the Mare group. The meeting was some time before 20 December 2014 when letters were written to Poly Logging, for Ronald Kitu says he had been deceived by the Mare family.

In answer, Rupasi Mare and others on the 15 May 2015 filed a statement claiming representative status for the Miduru tribe and Chieftancy in these proceedings. By exhibit they annexed a Technology and Marketing Agreement [in common form as that provided for following process under the Forest Resource and Timber Utilisation Act] executed by the Dekurana Land Reserve Trustees of Saikile, Roviana Lagoon, Western Province with MSL Import & Export whereby the trustees purported together with the Company, to carry out “felling extraction and marketing merchantable logs in the land under the exemption order issued under legal notice no. 88/2014.” The Agreement was dated the 16 December 2014 and post-dated the Exemption Order by the Minister for Forests [Legal Notice No. 88 dated Wednesday 29 October 2014] in relation to “ [a] Dekurana Customary land Reserve, Saikile, Roviana Lagoon, Western Province.”

By map attached to the statement of Rupasi Mare an area bounded and coloured green contiguous with Maepu land and Lots 9 and 12 was shown as “Dekurana Reserve Area”. The map was the same map used as “NH-2” in Nelson Huti’s first statement. That map was the map referred to in the Form 2- Certificate of Customary Ownership [section 9] given by the Western Provincial Executive at Gizo on the 26 June 2009. The map in the Form 2 included by area the green portion shown in the map annexed to Rupasi Mare’s statement [although he is named in that document as Rupasi Murry despite continually being identified in the annexure numbered documents as Rupas Mare]. The green area was an area coloured on the map boundaries of Maepu land and wholly fell within the boundaries.

None of those named “trustees” of Dekurana, those executing the Technology Agreement with MSL Import and Export, are named in the earlier Certificate of Customary ownership by the Provincial Executive which determined:-

“[a] that the following persons are the persons lawfully able and entitled to grant timber rights in the area bounded in red on the attached map being land held by the Saikile Chieftaincy [for Maepu and Kalena] land owning group”

And then followed a list of persons and areas for which various persons spoke. The first person named was Chief Ronald Kitu, of Olive and later, Nelson Huti of Nusa Hope was named amongst others as Sosopo trustees.

On the basis of this evidence, I accept the land named as Dekurana is in fact land within the area delineated on the map with the Form 2- Certificate of Customary Ownership and described as Maepu Land, Lot 9 and Lot 12. In the absence of any appeal from the decision of the Provincial Executive evidenced, I also accept the assertion of Chief Ronald Kitu that he had been misled by the Mare group and any documents signed may be seen as non est factum. For the statement of Rupasi Mare and others again recounts assertions of genealogy and customary decisions upon which they seek the court to rely when the principles of the Forest Resources and Timber Utilization Act following upon a timber rights hearing as has happened in this case, effectively changes the conversation from one concerning customary rights over land to one concerned with the statutory regime of the Act. I rely on the comments of the Court of Appeal [Pitabelama v Biliki]^[1] when dealing with the role of the Provincial Executive.

“As was said in Simbe^[2] the identification of the customary landowners is likely to be an essential step in the process of determination under s. 8[3]. The Provincial Executive must determine whether the persons proposing to grant timber rights are lawfully entitled to do so and if not who such persons are. There is nothing in the Act to require that a dispute as to the persons lawfully entitled should be referred to a Council of Chiefs. There are two further points worth noting; first the FRTU Act is concerned with the identification of the persons lawfully entitled to grant timber rights. It is true that will almost invariably be the customary landowners of the land on which the timber stands but it is nevertheless the case that the purpose of the decision of the Provincial Executive and on appeal the Customary Land Appeal Court is different to that which is described in s. 12 of the Local Courts Act. Secondly, a genuine dispute as to land ownership does not necessarily arise just because it is claimed. This case is a good example of that.”

As I say, there has been no appeal from the findings of the Provincial Executive and consequently these 1^st and 2^nd defendants may not presume to deal with the rights invested in the land trustees so found by the Executive and interfere with this land. They may well share benefits, from the land, if in the circumstances, custom would countenance such a share. In other words, their rights have always remained rights in personam not right in rem.

This brings me to the legal issue for the applicants for the freezing order and injunction rely on the claim that the two defendants did trespass on land by entering and logging without authority. The authority pleaded by the defendants was the right to enter afforded by the Exemption Order.

Here, the interests of the two defendants need part, for the “Dekurana Land Trustees” stand on the implied authority of a letter, given them by the Minister for Agriculture & Livestock on the 17 February 2015 of approval, pursuant to the earlier exemption order, for the implementation of DEKURANA Agro-Forestry Project within the land of the Exemption Order. The Company, Poly Logging relies on the Technology and Marketing Agreement with the “Dekurana Land Trustees”.

Land of the Exemption Order was expressed to be exempted from the provisions of section 4 of the Forest Resources and Timber Utilisation Act and the [Protected Species] Regulations. Section 4 of the Act deals with the creation of an offence where the provisions of the Act are not complied with, exempting persons in certain circumstances.

In fact a standard logging agreement following process under the Act had been signed over Maepu land by Chief Ronald Kitu and those others found by the Executive able to deal with the land, with the Kalena Timber Company Limited [stamped] expressed to come into operation upon approval of the harvesting plan. By consent of the Director Environmental and Conservation Division, given on the 19 November 2013, consent to log Maepu land was given under section 22 of the Environment Act. In February of that year, in apparent reliance on the Technology Agreement, Kalena Timber Company obtained a felling Licence No. A 101219 over Maepu land. Clause 14 of the licence required the licencee to have prepared an annual harvesting plan for the year before commencing logging operations. While no harvesting plan has been exhibited, in the light of the evidence of Chief Nelson Huti I accept the Maepu land trustees agreement made in 2009 with Kalena Timber Company evidences equitable assignment of the right to the timber resource and Kalena Timber Company has acted upon that assignment by obtaining the licence to log.

The timber resource had, by virtue of the provisions of the Forestry Resources and Timber Utilisation Act at the time of the Exemption Order, already been transferred by those trustees able to deal with the timber. The Kalena Timber Company, the 2^nd claimant, may lay claim to the presumptive rights to the timber resource.

Mr. Banuve, the Solicitor General points to the revocation of the Exemption Order and argues the acts of the defendants were premised on the efficacy of the Order at the time. Consequently the situation no longer applies and logging has stopped. Since the earlier interlocutory order was on balance, made while the Exemption Order was in force, the reason for the continuance of the order or an injunction has passed.

But the efficacy of the Exemption Order depends upon a reading of s. 4[1][c] of the FRTU Act.

“4-[1] Any person who fells any tree or removes any timber from any land for the purpose of sale thereof or of the products thereof otherwise than-

[a] ...

[b] ...

[c] for such other purpose declared by the Minister by notice to be exempt from the provisions of this section; or

[d] ...;

shall be guilty of an offence and liable to a fine of three thousand dollars or to imprisonment for two years or to both such fine and such imprisonment.

For by paragraph 1 of the Order, the Minister has purported to exempt from the provisions of section 4 of the FRTU Act and {specific} Regulations the named land in the schedule, “Dekurana Customary land Reserve, Saikile, Roviana Lagoon, Western Province”, and declared the land to be used for agricultural purposes.

On the evidence, the principle use of the land has been for logging and sale purposes as shown by the Technology Agreement between the two defendants.

However the claimants argue on the authority of Gandly Simbe’s case [supra] relying on the provisions of s. 40 of the Act, that no licence or permit issued under this Act shall be construed to convey any right or authority to enter any private land nor take any action with respect to anything without the authority of the owner of that land or thing. Here the ownership of the land, “Dekurana” may not be disputed before this court for the decision of the Provincial Executive has stood without appeal since 26 June 2009.

The Exemption Order at paragraph 3 refers to a permit to be issued by the Commissioner of Forests. Whether or not a permit has issued in this case is immaterial for the Commissioner had already, pursuant to s. 12 conveyed the approved Agreement for Timber Rights back to the parties in 2013 giving to the 2^nd claimant a valid Licence to log. There was then prior approval to log in accordance with the provisions of the Act and consequently any supposed Technology Agreement later in time is nugatory having no basis in fact for the right to log rests with the second claimant by virtue of the earlier Licence. For those trustees and Representatives of all the landowners found by the Provincial Executive have not been party to the later Technology agreement entered into by MSL Import & Export, having earlier agreed with Kalina Timber Company. The Commissioner of Forests would act ultra vires his powers were he to purport to grant any later licence, however described, in favour of the joined defendants, to fell trees.

In any event, the beneficiaries claiming ownership of Dekurana Customary land Reserve have shown no rights of customary ownership superior to those of the claimants and in accordance with s. 40 may not plead the Exemption Order as a defence to these proceedings, where ownership has since the Executive’s determination, remained with the claimants. Consequently, the 2^nd and joined 4^th defendants have no rights in custom to deal with the land contrary to the interests of the trustees and representatives found by the Provincial Executive so long ago. MSL Import and Export’s rights stem from the marketing Agreement with the 2^nd defendant, and it has no better right to log than the grantor in the Agreement, the 2^nd defendant. The 2^nd defendant, for these reasons had none. Having been party to the wrongful logging, and instrumental in facilitating such acts, the 4^th defendant shall also bear the costs of these proceeding.

For all these reasons, I make orders in varied terms of the application filed on the 13 April 2015 as follows;

1. An order that the 1^st and 2^nd respondents account for the logs felled, exported and sold from the logging land called Dekurana Customary land Reserve more particularly the land demarcated in green in the statement of Rupasi Mare and others in these proceedings by way of detailed particulars of log shipments, stating quantity, volume, species and FOB value of logs shipped and detail of the distribution of proceeds of sale of such log shipments;
   
2. Such detail of account in 1 to be provided the claimant’s and the court on Friday 3 March 2017 when these proceedings shall be further heard at 3pm;
   
3. An order in terms of C of the application filed;
   
4. An order in terms of D of the application, varied to allow 7 days for any such removal and for abundance of caution, the inclusion of the description of Dekurana land with Maepu.
   
5. Liberty to apply in relation to these orders;
   
6. The balance of the interlocutory injunctive orders excepting that part injuncting Poly Logging (by way of undertaking) from dissipating log proceeds until hearing, now listed for 3 March 2017, is discharged.
   

The remainder of the claimant’s Claim shall stand adjourned for hearing to Friday 3 March 2017 at 9:30 Am.

Costs of the applicants to date of these orders shall be paid by the 1^st and 2^nd defendants and the 4^th defendants (the parties joined by order in accordance with

R 3.5,) liable jointly and severally and such costs shall be assessed and agreed or failing agreement, taxed by the Registrar; I make no order as to costs in relation to the Attorney-General.

By the Court

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^[1] [2007] SBCA 21; CA-CAC 04 of 2006 [10 May 2007]
^[2] Simbe v East Choiseul Area Council anors CAC-F 18 of 1997