Bexter v Glengrow (SI) Co Ltd [2018] SBHC 59; HCSI-CC 86 of 2014 (31 May 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Robert Bexter v Glengrow (SI) Company Ltd
Citation:
Date of decision:	31 May 2018
Parties:	Robert Bexter v Glengrow (SI) Company Ltd, Catherlaena Kitu, Attorney General
Date of hearing:	06 December 2018
Court file number(s):	Civil Case No. 86 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):
On appeal from:
Order:	Declare that Claimant is the registered owner of Lot 23 of LR 515, Parcel no 143-001-15, and Second Defendant had not given a grant of profit to the First Defendant of the said Parcel no. 143-001-15. The letter by the Claimant dated January 18, 2014 to the First Defendant is a declaration of intend for the clear felling operation on the land. There is no agreement between the parties to log Parcel Number 143-001-15 and Second Defendant has no right to give a grant of profit to the First Defendant of the said Parcel no. 143-001-15. Amount for the royalties or payments of the logs to be assessed by the court and Counsels for the Claimant and Defendants to submit written submission to the court within three months as from today’s date. The costs is awarded against the Defendants on indemnity basis to be taxed if not agreed.
Representation:	Mr Makario Tagini Counsel for the Claimants Mr Wilson Rano Counsel for the 1st and 2nd Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Carlill v Carbolic Smoke Ball(1893)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No.86 of 2014

ROBERT BEXTER
Claimant

CLENGROW (SI) COMPANY LIMITED
First Defendant

CATHERLAENA KITU
Second Defendant

ATTORNEY GENERAL
Third Defendant

Date of Ruling: 31 May 2018

Mr Makario Tagini Counsel for the Claimants
Mr Wilson Rano Counsel for the 1^st and 2^nd Defendants

JUDGMENT

Introduction

Maina PJ:

The Claimant alleges that the First Defendant had entered into his land is Lot 23 of LR 515, Parcel no 143-001-15, felled the trees and the First Defendant exported the logs to an overseas buyer.

And on 30^th May 2014 the Claimant filed a Category -A against the First and Second Defendants seeking that:

1. Declaration that the Claimant is the registered title holder of Lot 23 of LR 515, Parcel no 143-001-15 and Second Defendant had not given a grant of profit to the First Defendant of the said Parcel no. 143-001-15.
2. The order that the First Defendant pays to the Claimant a sum of SBD$1,355,789.47 (as royalties to waste logs and SBD$4,270,736.83 for a total of 1449 logs that have been cut according to the stumps that have been counted or such amount to be assessed by the court.
3. He also seeks orders for Defendant to pay costs on relates environmental damages etc.

The First Defendant denied the claim and said that they had an agreement with the Claimant to enter his land and to undertake the tree felling operation on the land.

Agreed Facts

With this the parties agreed to these facts:

1. The Claimant is the registered owner of Lot 23, LR 515, Parcel Number 143-001-15, Vangunu Island, Western Province.
2. The First Defendant is the timber licensee (License No. A101324) and contractor. The License covers lot 25, LR 515, Parcel Number 143-001-22 which is owns by Second Defendant Catherlaena Kitu.
3. The Second Defendant who is the registered owner of lot 25, LR 515, Parcel Number 143-001-22, Vangunu Island, Western Province had given a grant of profit to the First Defendant to fell trees or harvest logs in his Parcel Number 143-001-22.
4. The Third Defendant is a Government Officer mandated to oversee the administration of the Forest and Timber Utilization Act in Solomon Islands.
5. The First and Second Defendants admit to carry out logging operations within Lot 23, LR 515, Parcel Number 143-001-15.
6. The High Court ordered an assessment for a joint survey on the alleged trespass which was done on Lot 23, LR 515, Parcel Number 143-001-15 by an assessment team comprising of surveyors, valuers and Forestry officers on 13^th and 14^th May 2014.

Issues:

1. Whether or not there is an agreement between the parties to log Parcel Number 143-001-15.
2. Whether the said agreement, if valid, entitles the Defendants to carry out logging operations on 143-001-15.

A Preliminary matter

Defence raised in the submission a preliminary matter that the Claimant did not response to the counter-claim filed by the First Defendant. But I can say that directly relate to the question in Issue 1. Whatever the outcome with this issue may address the concern in the counter-claim.

Issue 1

The First Defendant admitted that it extracted the trees or carried out logging operations within the land owned by the Claimant on or about January 21, 2014. On March 13, 2014 the Company exported the logs to an overseas buyer. Some felled logs were still at the First Defendant’s log ponds at Merusu awaiting the next shipment.

But the First Defendant argued that it did so on an agreement with the Claimant. An offer was made by Claimant with his letter of January 18, 2014. And the First Defendant by the letter of January 19, 2014 accepted the offer thereby constitute a valid contract.

Briefly the law on contract is, an agreement is manifest and a contract comes into being at the precise moment when an offer is made by one party – the offeror, is accepted by the party to whom it is made–offeree. In whatever form, the offer must be the intention that the offeror shall bind himself by its term if it is accepted. Contract and Tort by Gerald F Bowden and Alan S Morris: The Estate Gazette Limited, 151 Wardour Street London W1V 4BN, 1978 and 1981.

With the intention of the offeror, it is important to distinguish a true offer from other representations - an invitation to treat, a declaration of intend and so on.

With this case, there appears to be earlier conduct between the Claimant and First Defendant for a clear felling operation on the Claimant’s land. And the letter of January 18, 2014 was or acknowledged that interest of the Claimant to offer the clearing operation on his land to the First Defendant.

The Claimant’s letter stated a consent for the First Defendant to conduct the clearing on the land and the Claimant require:

“I would also very interested if you could arrange MOU or agreement.
We could discuss further on any issues regarding this operation upon your acceptance on this invitation”.

By the above statements, the Claimant and First Defendant is required to undertake further discussion on or any issues for the purpose of MOU or agreement. It is then important to make MOU or agreement before any clearing operation on the Claimant’s land.

Counsel for Defendant argues and refers to the Carlill v Carbolic Smoke Ball (1893) that an offer and acceptance is the basic requirement for the formation of a valid contract, a trite law. And he said that in this case an agreement to enter the land or a contract was completed when the Claimant made an offer by his letter January 18, 2014 and his client accepted the offer by the letter of January 19, 2014.

For a contract an offer and acceptance must exist and depends on the nature of the offer and the acceptance. With this case the offer is personal to the first defendant with the conditions to undertake by way of MOU or Agreement with the parties, a matter not undertaken by them.

In other words the circumstances of this case is different from the famous Carlill case which concerns the invitation to treat and or the offer to the whole world.

In the Carlill case, an offer (the sum of money was deposited with a bank to meet any such claims) was made to the whole world, capable of being accepted by anyone who smoke the ball in the prescribed manner. The essence or the ground for the Court of Appeal to accept the invitation to treat was that Mrs. Carlill had fulfilled the requirement set in the advertisement and there was therefore a binding contract.

What seems to be perfectly clear in this claim a request to discuss the as anticipated by the Claimant’s letter of January 18, 2014 to the First Defendant, which may lead to a true offer in due course was not undertaken. Instead, the First Defendant erred, abused or hijacked the process when in the letter dated 19^th January 2014 stated that they will start the clear felling operation once their machineries were ready. Worse so or few days later on or about 21^st January 2014 the First Defendant went into the said land and felled the trees.

In a very simple terms, the First Defendant had not attempted to discuss the issues for MOU or agreement as requested by the Claimant nor to acknowledge such as invitation to discuss the intention stated in the claimant’s letter. For whatever reason it is not disclosed by the First Defendant in the evidence. However the First Defendant opted to reply by the letter that they will start the clear felling operation once their machineries were ready and quickly on or few days later they went into the Claimant’s land and felled the trees.

The agreed facts disclosed that the Claimant is the registered title holder of said land and First Defendant, a timber licensee and contractor of lot 25, LR 515, Parcel Number 143-001-22 own by Second Defendant. There was no grant of profit for the concerned land to the First Defendant. However if there was one by Second Defendant, it is wrong as he is not the owner of the Parcel no. 143-001-15.

There was no contract or agreement or the exchange of the letters by the Claimant and First Defendant did not constitute such and therefore judgment is entered against the First Defendant.

Issue 2.

By the above ruling in Issue 1, this Issue 2 is therefore not anymore an issue and is dismissed.

The Claimant also seeks for an order for the royalties and payments of logs or damages on the land and order is granted and the amount to be assessed by the court.
ORDERS

1. Declare that Claimant is the registered owner of Lot 23 of LR 515, Parcel no 143-001-15, and Second Defendant had not given a grant of profit to the First Defendant of the said Parcel no. 143-001-15.
2. The letter by the Claimant dated January 18, 2014 to the First Defendant is a declaration of intend for the clear felling operation on the land.
3. There is no agreement between the parties to log Parcel Number 143-001-15 and Second Defendant has no right to give a grant of profit to the First Defendant of the said Parcel no. 143-001-15.
4. Amount for the royalties or payments of the logs to be assessed by the court and Counsels for the Claimant and Defendants to submit written submission to the court within three months as from today’s date.
5. The costs is awarded against the Defendants on indemnity basis to be taxed if not agreed.

THE COURT

Justice Leonard R Maina
Puisne Judge