Lukisi v Eagon Resources Development Company Ltd [2017] SBHC 152; HCSI-CC 244 of 2010 (6 October 2017)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lukisi v Eagon Resources Development Company Limited
Citation:
Date of decision:	06 October 2017
Parties:	Rowson Lukisi, Richard Lukisi v Eagon Resources Development Company Limited
Date of hearing:
Court file number(s):	244 of 2010
Jurisdiction:	Civil
Place of delivery:	HCSI-Court Room 5
Judge(s):	Brown; J
On appeal from:
Order:	1. There shall be Judgment for the defendant 2. The Claimants shall pay the defendants costs plus interest.
Representation:	K. Bitibule of W. Rano and Associates for the Claimants
	C. Hapa for the defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule, Forestry &Timber Utilization Act
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 244 of 2010

ROWSON LUKISI AND RICHARD LUKISI
(Representing the Liukana (Sukuvai) Clan Choiseul Province)
Claimants

v

EAGON RESOURCES DEVELOPMENT COMPANY LIMITED
Defendant

Date of Judgment: 6 October 2017

K. Bitibule of Rano and Associates for the Claimants
C. Hapa for the Defendant

JUDGMENT

This Amended Claim- Category A (Rule 2.2) seeks damages for trespass (and consequent damages for environmental damage) and conversion of trees (by logging and sale) against the defendant in relation to Liukana and Zizima customary land on the north east of Choiseul Province. The Amended Claim was filed on 24 February 2011, and followed an earlier Claim of July 2010, to which a defence had been filed. An application for summary judgment in relation to the original claim, part heard, was withdrawn when orders were made by Goldsbrough J on 10 February 2011 granting leave for the amended claim to be followed by a defence to be filed by 10 March 2011. And amended defence was filed on 9 March 2011.

The court on 10 March stood the proceedings over to 31 March when directions were made for further conduct of the case. For on 21 March 2011, a request for further and better particulars and a request for further disclosure were made by the claimant. A response to that request was filed on 13 April, some six days beyond the period allowed by Chetwynd J on 4 April when by further order of Chetwynd J given on 20 April 2011, the amended defence was to be stayed pending proper answer to the request for particulars. On 5 May apparently on the claimant’s application, Chetwynd J ordered the stay of the amended defence (in consequence of the defendants non-compliance with an “unless order”, presumably reliant on

Rules 11. 55, 56). A pre-trial conference was also ordered although it is not clear to what purpose when the defence had been stayed.

The amended defence then may be said to have alleged facts exclusively within the defendant’s knowledge and presumably related to a matter likely to be an issue between the parties, and the question (or rather answers)or request for particulars, were reasonably necessary to enable the court to decide the matters at issue. Since the amended defence was stayed, it would be reasonable to suppose the claimant may be heard on the material filed in support of his case.

On 19 July 2011 an application for judgment in consequence of the stay order was made by the claimant and for an assessment of damages. The application came before Mwanesalua J on 16 August 2011 when it was adjourned on the defendants application to 31st of August, the defendant to pay costs of the opposed adjournment in the sum of $2000. The court curiously ordered the defendant to file and serve any sworn statements in response to the application by 22 August, allowing the claimant to file statement in reply by 29th of August 2011. On 30 August the defendant filed a statement by William Pita, the general manager of the defendant company addressing the amended claim to a large extent and purporting to rely on its defence (earlier stayed). A further statement by William Pita was filed on 30 August seeking to explain why the deadline for a statement by the defendant had passed, and accompanied by an application to file statements out of time.

By argument on 31 August, the applicant read a statement of one of the claimants, Rowson Lukisi reiterating the basis for the claim for default or summary judgement. The hearing would appear to have proceeded in relation to the leave sought, to read the statement of William Pita, although out of time, for by ruling given on 9 September 2011 the court accepted the filed statement of William Pita, “effective for purposes of this case”.

By ruling given on 21 November following hearing it would seem, of the application for judgement (following upon the stay order affecting the amended defence filed) on 21 October 2011 the court said;

7. The claimant submits that as the stay order operates as a dismissal of the case. The defendant objects to the dismissal of the case as the disclosure step on the claim has yet to be reached (sic).
8. The terms of the unless order is clear. It merely applies to the stay of the amended defence. Order 2 of stay order requires that matter be listed for pre-trial conference that is to be done on this matter. A stay of the whole claim is therefore refused and is dismissed. Claimant to pay cost of defendant for this application. This claim is accordingly adjourned to first of December at 2:30 PM for mention.

By paragraph 8 this Court accepts his Lordship dismissed the application for default or summary judgement, ordering a pre-trial conference and cost of the application in favour of the defendant (the successful party). A number of other statements had been filed by both claimants in reply to that statement of William Pita. For on 1 December 2011 by order of Mwanesalua J (perfected 5 November) a timetable was given for the hearing, it would seem of these proceedings. By perfected order of Chetwynd J (given on 3 May 2012) the timetable was varied by extending the various periods in which the index, court book and agreed facts and issues were to be filed. On 2 October 2012, Mwanesalua J ordered-

1. closing submissions by 12th of October 2012
2. any replies to be filed by 19th of October 2012
3. this matter is listed for hearing on 24th of October 2012 at 3 PM
4. Costs in the cause.

On 24 October 2012 the judges notes show counsel as having stated they have filed submissions, whereupon it appears the court reserved judgment. No judgment regrettably has been given to date.

On 2 August 2016 by consent of the trial judge carriage of this matter was given me when the following orders were made:-

The matter will proceed on the papers and having regard to updated submissions which may take issue with the sworn statements, tended on trial. The pleadings are complete. Counsel will exchange updated written submissions within 21 days and respond, if need be within 14 days. Once the written submissions are filed with the court, the matter will be determined on the papers and such submissions.

The court file unfortunately remained in the registry office since no further submissions by counsel were filed.

On 23 January 2017, a further application for (default) judgement in consequence of the stay order or alternatively summary judgement (as there is no prospect of the defendant succeeding in these proceedings) was made, returnable on 31 March. The application would seem to have been stood over to 4 July when again by consent orders were made that “the case was to be decided upon the court book and both Counsel rely on closing submissions. (The statement of Henry Vaekesa sworn 23rd of August 2016 is after the event of the trial and I do not propose to allow the statement to be read).

I consequently propose to address the claimant’s application for judgement of 23 January 2017, made in this manner:-

The applicants Rowson Lukisi and Richard Lukisi seek

1] an order that judgment be entered against the defendant in consequence of the stay order or alternatively summary (sic) against the defendant as there is no prospect of the defendant succeeding in this proceeding.
2] costs of this application and trial.

By Rule 9.45 (default – other claims) where a claimant is not entitled to judgment in cases concerned with principally liquidated or money claims, the court “may enter judgement for the claimant in the terms set out in the claim and may make any other orders it considers appropriate”.

I refuse to exercise my discretion to allow judgement in this manner for while the claimant seeks unliquidated damages, such damages may only arise once trespass has been shown. The claimant need prove his case as to trespass on the civil onus, before proceeding to any assessment.

The claim may proceed to be considered as one, where no order setting aside Chetwynd J’s stay of defence is in existence; where the claimants case must rest on the material which has been filed and read on trial, which is that material contained in Court Book 1, together with that further statement of William Pitt allowed by order 9th September 2011 and consequent statements allowed in reply.

A judgement in these circumstances claimed, would be a constitutive legal act where no adjudication upon the claim to trespass has been had, where trespass in this case relies upon many variables going to make up the claimants rights as landowners to prove trespass notwithstanding argument over logging licences in the defendant purportedly over the land in dispute, licences allowing a right to log on such lands. Such a default judgment would be wholly irregular.

The court book filed on 18 April 2012 by the claimant shall be that book upon which I propose to rely for while the defendant filed a bundle of documents on 19 June 2012 that bundle was neither sanctioned nor determined to form part of the court book. Whilst the Registry accepts material and such material is on file this court should be wary about accepting such material on trial where a party has failed, as in this case, to comply with the earlier directions leading to a stay of the defendant’s defence.

It is important then to reiterate the material before Justice Mwanesalua who allowed the statement of William Pita, for the defendant filed on 30 August 2011. I have inspected the file since and have found one sworn statement of Rowson Lukisi filed 13th of February 2012 going to disclosure of documents for the claimants.

The court book filed on 18 April 2012 contained the claimants material on which it relies.

By amended statement of case the claimant’s claim, as members of the Liukana [Sukuvai] clan claiming in their as representative and individual capacity, as owners in custom of Liukana and Zizima customary land (referred to as Liukana). The defendant was admitted to operate in Liukana land under felling licence number A10550 and TIM to/14. By amended case the defendant was said to hold felling licence TIM 2/14 as A10550 “purporting to be issued by the Commissioner of Forest Resources. The felling licence applies to Sukuvai customary land and is expressed to expire on 28 October 2010. Licence T I M2/14 (deemed to expire 21/12/12) covers Sibosibo/Zazaleani, Siki, Chropon doko and Valaikana II customary land.

Persons Leadly Lukisi and Lawster Lukisi had been employed by the defendant company as land coordinators and as admitted by the defendant, in its answers to request for particulars (earlier accepted by Chetwynd J) were responsible for Zizisma and Volekana customary land and were instrumental in the execution of a supplementary logging agreement. As evidenced by the response, the personnel officer, John Sorio, Sukavai camp, wrote to the director Eagon office Honiara, enclosing a copy of minutes of a purported Liukana clan meeting (Zizima/Volekana) dated 27th of May 2010 at Sukuvai camp office. In attendance at the meeting were Zizima chief Loster Lukisi and chief Ledley Taniveke, Volekana Chief Achieve John korokoro; tribal member Craig Jack (Observer) company representative Gun Bong Lee (C. manager) John Sorio- Secretary (PO).

The minutes reflected differences in relation to the Chiefs apparent wish that the company continue or discontinue its operation on Liukana’s land. The camp manager was recorded as saying amongst other reasons for reluctance, that continued disturbances from landowners especially spokesman Robert Vaekesa and Chief Lloyd Bosoboe.

At 1 c) the minutes record;-

the chiefs reassure camp manager that he must bypass straight and correct messages to the company director and other responsible officers concerning Robert Vaekesa is their subject and he be dealt with by the tribe. He cannot override their authority or their responsibilities. The company shall abide by the executed agreement with this operation. Robert is not trustee, he is only a witness to this agreement. According to them he shall be isolated or tell him to come down and see us at home. This is the proper venue that he shall raise his concerns and relayed to us is cases and request.

In response to the application for summary judgement, by William Peta’s sworn statement, the company seeks to rely on the supplemental agreement signed and dated 14th of May 2009 relating to agreed logging over Zizima land. Under exhibit “WP.1” the royalty payments made from Zizima and Volekana customary lands were set out.

I do not accept the defendants reliance on material post-dating this supplemental agreement and royalty payments statements, to show there is sufficient evidence of the tribal representatives of Liukana lands agreement to logging of that block, irrespective of the fact of the licences referred to as grounds for the defendant’s actions. The minutes of 27 May 2010 cannot be accepted as any sort of customary tribal meeting record rather it reflects the ongoing negotiations perhaps with the tribal representatives employed as land coordinators.

The Forest Resource and Timber (Prescribed Forms) Regulations prescribes the form of agreement for timber rights, Form 4 (section 12). At clause 1, approval by the representatives is necessary as evidenced by the signatures to the agreement for the grant to the company of the right to fell timber on the block. The defendant, has by William Peta’s statement at “W P.3” annexed a copy of the supplementary agreement to the standard logging agreement executed between Eagon Resources Development (S I) Ltd and the appointed trustees of Zizima customary land of Liukana Tribe made 14th of May 2009. By clause 1.0, the trustees allow logging activities within their land pursuant to the agreement of the parties stated in the standard logging agreement (except the reserved land as agreed to herein). The document is signed by the trustees of Zizima land, 1] chief Lawster Kaukana Lukisi, Ledely Lukisi, John Nige, Lence Zuapa, Alwen Etycus and Joseph Galo. These are “representatives” then for all landowners, it may be presumed for the land covered by the standard logging agreement. In exhibit “W P.2”, William Peta annexes a sworn statement by Ledley Lukisi (whom I accept to be Ledely Lukisi, the signatory to the supplementary logging agreement, above). In that sworn statement filed in proceedings between Ledley Lukisi and John Nige (representing Liukana /Sukuvai tribe) claimants and Ivan Ngai, Nathan Sika and Lindon Solomon (representing the Sikaboe tribe) defendants (High Court civil case number 31 of 2010), the standard logging agreement referred to in the supplementary logging agreement [above] is discussed in the statement of Ledely Lukisi (one of the signatories of that later supplementary logging agreement). I re-produce parts of Ledely Lukisi’s sworn statement;

4. In the year 1995 Eagon Resources Development Co (SI) Ltd applied for timber rights with respect to various customary lands in North East Choiseul including our Zizima customary lands which is part of our entire Liukana Sukuvai tribal lands. Annexed hereto and marked as “LL-2” is a copy a map which was tended by tribe at the timber rights hearing showing the correct boundary of our Zizima land and Liukana Sukuvai tribal land.
5. the boundaries of the Zizima land which had gone through timber hearing in 1995 in which we have started to carry out logging operations on the same since May 2009 lies between Tege river and Zao/Solodarana river in the southern end, bordering the defendants Bukuse land as shown in the annexure “ LL-2” hereof.
6. I attended the timber rights hearing with other members of our tribe which was held in 1995 that Vure village Kirughela district of North East Choiseul, Choiseul Province.
7. A that timber rights hearing it was determined by the East Choiseul area Council that myself and three other members of our tribe named in their determination were entitled to grant timber rights with respect to the Zizima land. It should be noted that the map attached with Form II was not sighted by members of our tribe at the timber rights hearing in 1995. First time I saw this map was when I came to Honiara to pursue this matter and I was surprised and where that map was taken from. Annexed hereto and marked as “LL-3” is a copy of the said determination.
8. It should be noted that members of the defendants Sikaboe tribe had also attended that timber rights hearing that they did not object to us acquiring timber rights over the said land. They instead confirmed our tribal boundary as shown in the annexure “LL-2”. For this reason there has not been any appeal against the said determination from anyone even from the defendants or any members of their tribe.
9. Since the timber rights hearing in 1995, the logging contractor the Eagon Company operated in other customary lands apart from our Zizima land without any disturbance of any of the defendants or members of the tribe. Similarly there have been no disturbances from last regarding in the development on their Bukuse tribal land.
10. Based on that said determination referred to in paragraph 7 hereof, the Zizima land trustees which include myself had executed a standard logging agreement with Eagon company at Gizo, Western province in 1999. In 2009 our Zizima land trustees which include myself had further executed a supplementary agreement dated 14th of May 2009 to the standard logging agreement with the company. Further it should be noted that the map attached with standard logging agreement was not sighted by us at the timber rights hearing in 1995. The first time I saw it was when I came to Honiara to pursue this matter. I did not know where that map was taken from. Even members of our tribe including myself who were signatories to the said logging agreement had not sighted it when we signed the said agreement. Had the members of our tribe saw it, we would not have signed said logging agreement because the boundary of our Zizima land was not correctly marked. The next hereto and marked as “LL-4” is copy of the said standard logging agreement. Further next hereto and marked as “LL-5” is a copy of the supplementary agreement.
11. Further a land dispute between Dali tribe and our Liukana Sukuvai tribe over the coastal areas of our Liukana Sukuvai tribal land was dealt with by the Batatana Council of Chiefs South Choiseul province in 2005. The chief’s hearing was held at Posarae village on 12 and 13 July 2005. It was determined that the ownership of the areas marked in black in the attached map belong to our tribe. It was also determined by the Chiefs in their determination that the disputed lands which starts from Lalaguti to Kozo stream were within the coastal boundaries of the Liukana Sukuvai tribal land. The Chiefs panel had also identified and marked the boundaries of the Liukana Sukuvai tribal lands which include or cover the Zizima land as shown in the attached map. Annexed hereto and marked as “LL-6” are copies of the said determination and the attached map.
12. There is an appeal pending before the Choiseul local court against the said determination. However it should be noted that this appeal did not relate to the entire Liukana Sukuvai tribal land boundary which includes Zizima land as identified and marked by the Chiefs in the annexure 6 but in relation to the area in which were marked in black in the said annexure. The entire boundaries of our Liukana Sukuvai tribal land as marked in the annexure “LL-6” has not been disputed and therefore not subject to the said appeal. It has remained intact as marked and identified in the map as shown in annexure “LL-6”.

There are then statements concerning the dispute with those named defendants, over logging within areas disputed by the defendants directed by Nathan Sika.

Leadly Lukisi’s statement, paragraphs 15, 17 and 18:-

15. After such attempts to disrupt our logging operations the first named defendant [Ivan Ngai] wrote a letter to our logging contractor Eagon Company and copied to others including myself, asserting that the land on which we had started logging operation since May 2009 is part of their Bukuse customary land. We say that such claim by the defendants is totally false. The land on which we are currently carrying out logging operations is Zizima land, right within the Liukana Sukuvai tribal land as shown in the annexure “LL-3” hereof. Annexed hereto and marked as “LL-8” is a copy of the said letter.
17. After the said letter in mid-January 2010 the defendants through their tribesman further unlawfully entered into Zizima land again, right within our Liukana Sukuvai tribal land and threatened to stop our current logging operations on the said land. Apart from that they had also threatened to confiscate the properties of our logging contractor. It was lucky that our fellow tribesman confronted them and turn them away had our fellow tribesman not confronted them, they would have removed or destroyed our logging contractors’ properties. Nevertheless it should be noted that the defendants and members of the tribe are determined than ever to disrupt our current logging operations by Eagon Company within our Zizima land right within our Liukana Sukuvai tribal lands.
18. Further it be noted that when the members of the defendants tribe unlawfully entered into Zizima land on the said occasions, they were also harassed and intimidated the employees of our logging contractor. They had also issued threats to confiscate, destroy or burn the properties of the logging contractor if our logging operations were not halted. Had the members of our tribe not confronted them, they would have carried out their threats.

This evidences others, presuming rights to parts of Liukana Sukuvai tribal land which includes Zizima land. This case before me again, illustrates the apparent claim by these others to represent tribal rights over land shortly described as Liukana customary land. In this case before me the claimants presume to represent the Liukana tribe.

Where the representative standing is claimed, it should be apparent at the time of institution of the proceedings. The rights of the representatives named by the Provincial government had not been challenged by way of appeal under the Act, section 10 (1). A rebuttable presumption arises in their favour to represent all the landowners of the customary land subject to the logging concession and to be the responsible trustees available to be joined in proceedings affecting the land.

The claimant Rowson Lukisi, by his statement sworn in support of these proceedings on 11 November 2010^[1] says at 2;

I say that Richard and I were appointed by our tribe to commence this action on behalf of the tribe and also on behalf of ourselves being members of the Liukana land holding group within the Sukuvai tribe. Now produced and shown to me and marked “RL-1” is a true copy of the letter of authorization.

The letter of appointment is as follows

Liukana tribe
North East Choiseul
Choiseul Province
date; 8/07/ 2010
to Rano and company
[Barristers and solicitors]
Honiara
Dear Sir
Re; appointment of Rowson Lukisi and Richard Lukisi
On behalf of the Liukana tribe we the chief and trustees of the Liukana a customary land of North East Choiseul have hereby appointed Rowson Lukisi and Richard Lukisi to apply to your office to seek legal action concerning trespasses and damages by Eagon Resources Development Co Ltd to Liukana customary land.
Your understanding is highly appreciated
yours faithfully
Lawson Raukana (signature) chief of Liukana tribe.
Lindley Lukisi (signature) Spokesman, Liukana tribe.
For: Trustees, Liukana Tribal Land.
Cc: Pacific Crest Enterprises Co. Ltd.

The persons signing this supposed tribal authorization appear to be the very same two people who signed the supplementary agreement in favour of Eagon Resources Development dated 14 May 2009. No notice by these claimants based on “termination” of the Form 4 (earlier referred to) by the “Zizima and Volekana” customary land holding group required [as provided for in clause 38-Termination] (by the Public Solicitor acting as agent for the representatives) has been shown. The letter has been copied to Pacific Crest Enterprises Co Ltd, a commonly known logging company. It may be presumed the letter has been copied to Pacific Crest as an interested party to the intention to institute legal action against another logging entity. No other reason may arise but Pacific Crest’s purposeful interest to log, for the signature of Ledely Lukisi in the memorandum is clearly the same as that of the Chief of Liukana tribe, Lawster Raukana’s, signature of purported instructions in the letter of 8 July 2010. It would be presuming too much to suggest that letter (court book 50) was written at the instigation of Pacific Crest as proof of these two persons (land coordinators for Eagon Resources) willingness to pursue a claim for trespass as landowners over the concession area over which they had been named “representatives” and over which they had granted logging rights to Eagon Resources.

It would appear the failure of “Chief of Liukana tribe” or “Trustees of Zizima Land” to terminate the earlier agreements to log [for the two “trustees” presumed to authorize logging over Zizima customary land], the claimant’s statement of case in the amended claim, at 13, pleads fraud on the part of Eagon Resources leading to the execution of the later supplemental agreement for particulars of the fraud relied upon the absence of the Public Solicitors independent advice at the time of execution of the agreement^[2].

When I read the letter of John Sorio and the attached minutes^[3] I am not satisfied the claimant’s assertion of fraudulent behaviour or undue influence by the company Eagon Resources has been made out. The detail of the minutes relied upon by the claimants suggests the very signatories to the letter of appointment of Rowson Lukisi and Richard Lukisi of 8 July 2010 had earlier on 28 April 2010 allowed to continue felling in Liukana clan land.

MEMORANDUM OF UNDERSTANDING

I Chief Loster Lukisi and my trustees do hereby have reached an understanding to revoke our Temporany Banning of Felling in our Blocks of Zizima Land within Liukana Clan of Sukuvai Tribe. With this authority the company may now continue with felling in our Blocks of Zizima Land.
Signed-Chief Loster Lukisi Leadly Taniveke Lence Zuapa^[4]

I am not satisfied when I read all the conflicting assertions over the abilities of these two “representatives” to comprehend their responsibilities that these claimants have made a case for fraud on them by the company. As appears from the minutes and the excerpts of the statement filed in associated court proceedings, they can be seen to have good understanding of their status as “representatives”.

In all circumstances by reason of the changing interests of these two particular “representatives”, chief Lawster Raukana [Lukisi] and Lindley Lukisi [Leadly Taniveke], I cannot be satisfied these claimants have valid appointment as representatives of the tribe or clan, claiming rights over Liukana customary land, when earlier “representatives” have been found by the provincial government unchallenged by statutory process and as evidenced [above] had executed a logging agreement and the supplementary agreement. No appeal in terms of the Act to query the standing of these representatives following appointment, was instituted and their subsequent agreement by Form IV to logging had not been rescinded, rather the claimants rely on the acts of the company as evidencing fraudulent behaviour going to the veracity of the agreements. I am not satisfied fraud has been shown. The involvement of the Public Solicitor does not arise in these circumstances.

Contrary to the case of the claimants, I am satisfied that it may be said the venality of these two persons has been shown on the material of the claimants, the motive being the opportunity for further profit by claiming damages for trespass. Reliance by use of these venal practices by these claimants denies them standing to pursue this claim. A court should not countenance practices which seek to avoid proper process in terms of the F.R. & T.U. Act.

There shall be judgment for the defendant.

The claimants shall pay the defendants costs plus interest.

THE COURT
______________
Brown J

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^[1] Court Book 17
^[2] Court Book 15
^[3] Court Book 27, 28, 29
^[4] Court Book 30