George v Voge Timber Export Ltd [2017] SBHC 7; HCSI-CC 191 of 2015 (10 February 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 191 of 2015

BETWEEN: LESTER GEORGE AND JOHN WAYNE
(Surviving Persons determined under Form 2

Determination Representing the Arovo and Gae

Landowners) 1^st Claimants

AND: DAVID HARO, LYNDEN HARRY, HAROLD MARIL,

GRANDLYSIMEON (Representing the Arovo and Gae

Landowners replacing the 6 deceased trustees

determined under Form 2 Determination) 2^nd Claimants

AND: VOGE TIMBER EXPORT LIMITED 1^st Defendant

AND: SUNWAY (SI) LIMITED 2^nd Defendant

AND: HINCE HARO 3^rd Defendant

Date of Hearing: 16^th November 2015
Date of Decision: 10^th February

Mr. P. Tegavota for 1^st and 2^nd Claimants
Mr. N. Laurere for the 1^st Defendant

DECISION ON COSTS

Faukona PJ: This case commenced by way of application for ex-parte orders which was filed on 15^th May 2015. An amended application for ex-parte orders was filed on 22^nd June 2015 with the inclusion of two names of first Claimants and four named second Claimants including the original single Claimant, Mr. Davis Haro. On 24^th June 2014 the ex-parte orders were granted. Until today no inter-parte hearing was conducted and probably would not be possible forever since the claim had been discontinued on 22^nd June 2016.

2. To determine whether costs should be paid to the Defendants. I am legally prompted to read all the documents filed. Interestingly, I have to rehearse so as to appreciate what occurred from the beginning. Secondly because one of reasons is that the Defendants had incurred costs in defending the action and suffered loss of earnings including cost of obtaining logging licence, loss of provincial Business Licence for the period of injunction.

3. In unveiling the background events, let me rehearse back to 1996. On 9^th January 1996 there was a timber rights hearing, conducted by Marovo Area Council, in respect of the first Defendants application which concern arovo and gae Customary Lands.

4. In its determination the Counsel had identified 8 grantors as persons who represent all the persons, lawfully entitled to grant timber rights. The determination was exhibited in Form II dated 10^th January 1996.

5. After the determination a standard logging agreement was executed by the grantors and the first Defendant. What appears fizzy is that only four (4) out of the eight (8) grantors identified by the Marovo Area Council to grant timber rights signed the agreement. The rest of the signatures were about fifty one (51) as trustees and representatives. The question I must pause, where are the other four grantors? Why should they not sign the standard logging agreement? After the agreement had been signed a feeling license No. TIM 2/84 was issued to the first Defendant to carry out felling and extraction of logs from arovo and gae customary lands.

6. What transpired eventually was that the standard logging agreement was not properly executed. Eight (8) who were identified us grantors should sign and no one else. Where only four (4) signed with fifty one (51) persons unidentified, render the standard logging agreement defective, and of course will legally affect the renewal of the felling licence later. I am not determining the validity of the felling licence but I am gathering evidence whether financial loss suffered by the Defendants in acquiring the licence and whether actual logging operations were done through full compliance with the provisions of the Forest Resources and Timber Utilisation Act. In this case I do not think so. Any renewal of the same licence in the future does not change the validity of the licence.

7. The second issues is that, after the ex-parte orders were granted, there was no inter-party hearing conducted until the claim was discontinued. I noted the defence was filed 23 days after the claim was filed. Immediately after that an inter-party hearing should be called for. Instead Counsels were engaged in filing application for joinder (10^th September 2015) and filing application to determine preliminary issues (26^th August 2015). The first and for most requirement to pursue inter-party hearing was never considered as priority.

8. If the particular judge had mismanaged the file and perhaps unable to or had just slip of his mind the urgent need to conduct an inter-party hearing after that the defence was filed, the counsels must take responsibility to assist and reminded the Judge of the importance of conducting an inter-party hearing after the defence was filed.

9. I anticipate the Counsel for the Defendants to respond instantaneously and pursue an inter- parte hearing because his clients were restraint by the ex-parte orders. Having filed the defence he should, as the next step, suggest a date for inter-parte hearing. The Counsel for the Claimants can sit back comfortably and watch from a distance and counted himself as having upper hand. Nevertheless neither Counsel is of any assistance to the court. The process which ought to have been done was never done until an intervening factor had barred the inter- parte process which now becomes redundant. In my assessment the counsel for the Defendants should accept failure for not being conscious enough to the changing circumstances.

10. I noted the issue of land ownership and authorized representative was raised. However, that plays a minor role. What transpired as a true traditional issue is about leadership, who should be the leader. That issue cannot be resolved by this court, there are avenues readily available to invoke their powers, and hence this court cannot entertain such.

11. Another issue is in relation to the formation and establishment of the first Defendant as a local incorporated company. The First Defendant was incorporated on 23^rd May 1995. The Directors were Lawrence Harry, Lester George, Herold Timothy, Stenner Peter, Raene Akuila, David Haro, Edrick Mark, Bejili Edi and John Wayne. Three of the Directors namely Lawrence Harry, Lester George and John Wayne were among the eight (8) grantors identified by the Area Council on 9^th January 1996 as persons having right to grant timber rights. Initially it appeared that the First Defendant was a company owned by the landowners who owned arovo and gae customary Lands by way of grantors as identified.

12. On 20^th November 2013 the First Defendant was re-registered under the new Company Act. The Directors were Clayton Haro, Watson Haro and Wince Haro. The three Directors were also became the three Shareholders. It was during the time of the change of Directorship and Shareholders that the initial application for ex-parte orders was filed on 15^th May 2015.

13. With the abrupt change of Directorship and Shareholders, the Claimants felt that there was some kind of deceptive actions went on. As a result a criminal report was lodged with CID Police on 12^th July 2016.

14. From Exhibit WH-10, attached to Watson Haro’s sworn statement file d17th August 2016, the re-registration of First Defendant on 20^th November 2013 was removed on 1^st January 2016, the reason being failure to file 2015 annual report. The removal of the Directors and Shareholders had paved a way for new Directors and Shareholders to be appointed. According to the Company Extract the new Directors are: Calton Grandly, Douglas Haro, Gradly Simone, Harold Mark, John Wayne, Lami Simeon, Lester George, Lynder Hare and Ratu Ropiti. The Shareholders are, Calton Grandly, Davis Haro, Elvis Haro and Lyden Haro.

15. With final changes in place Mr. Tegavota submits that those Directors and Shareholders are supporters of the Claimants case. Therefore, it would be impossible to sue the ir own company or themselves. Hence, the decision taken was to discontinue the proceedings against the First Defendant.

16. Mr. Laurere in submissions states that the Claimant was not genuine in filing this proceeding. He points out there were exchange of civil litigations between two major groups in the tribe and raises the issue of representative capacity. He further points out that the Claimants were manipulating the Company House.

17. This case was filed against the Defendants after the Directorship and Shareholder of the First Defendant was changed and new persons were appointed in place, those persons are Mr. Laurere’s client. The change reveals the original Directors were kicked out. Somehow two of the original Directors returned with others and were registered as Director on 1^st January 2016, and a former Director Mr. Davis Haro was reinstated as one of the four shareholders.

18. In reality, who actually is manipulating the Company House? Was it Mr. Tegavota’s clients? I do not think so. In fact evidence reveal that some of the original Directors and Shareholders were finally reinstated after being kicked out because of some actions by Mr. Laurere’s Clients. To have the original Directors and a Shareholder of first Defendant reinstated was the original choice of the landowners, there is no discrepancy, and manipulation noted had been done by the Claimants.

19. I noted there was an in-house fighting between the Claimants and others of their relatives. The issue of landownership and leadership often dominate their arguments. However they are not issues this court has jurisdiction to entertain. At times they translate such issues in association to certain dispute to involve the jurisdiction of the High Court. Sometimes they succeed and the High Court has to bow in as a legal obligation.

20. One of such dispute was the initiation of this case to challenge why the Directorship and Shareholders of the first Defendant was changed. I think this case was filed with a purpose. Once some of the Directorship and Shareholders returned back to their original position, the Claimants then discontinued the case. I see there is genuineness in filing this case.

21. With my reasons outline in this decision I hereby dismiss the application for costs with costs.

ORDERS

1. Application for costs dismissed.
   
2. Costs of this application to be paid by the First Defendant under the previous Directorships and Shareholders led by Mr. Wince Haro to the Claimants.
   

THE COURT