Nogha v Voge Timber Export Ltd [2018] SBHC 9; HCSI-CC 436 of 2015 (31 January 2018)

HIGH COURT OF SOLOMON ISLANDS

(BROWN J)

Civil Case No.436 of 2015

ISAKE NOGHA, KIKO -V- VOGE TIMBER EXPORT LIMITED,
NOGHA AND ALASTAIR SUNWAY (SI) LIMITED
ALEVE (1^st 2^nd Defendant)
(Claimant)

Date of Hearing: 23 October 2017
Date of Judgment: 31 January 2018

M. Bird for claimant
M. Tagini for defendant

Damages claim for trespass and extraction of logs from customary lands without proper authority.

Brown J:

These proceedings were originally instituted against two defendants, Voge Timber Export Limited and Sunway (SI) Limited, by way of Category B Claim seeking judgment for trespass and damages for trees felled in customary land known as Tavadai. A default judgment was given against the 2^nd defendant, Sunway (SI) Ltd by the Registrar on the 4 February 2016, a judgment set aside by me following leave to argue and a hearing and reasons given on the 13 May 2016.

Default judgment in matter of this nature involving logging following proceedings under the Forest Resource and Timber Utilization Act where the court need be satisfied, on evidence, of the issues supporting the claim for trespass to particular land, the standing of the claimant to make such a claim and the basis for the damages sought, rather than allowing judgment in default of appearance or defence, should always be addressed at hearing, not by administrative act, failing defence.

In any event, the default judgment was set aside, the defendant let in to defend and the matter has, following defence proceeded to trial on all the material relied upon by both the claimants and the defendant company.

Proceedings had been discontinued against the original 1^st defendant, a company predominately controlled by one Wince Haro who, it appear, represented landowners of adjoining customary lands where licence to log in favour Voge Timber Export Ltd had been granted by the Commissioner of Forest. For by a sworn statement read in the claimant’s case, Stanley Lavu, one of the proprietors of Voge Timber Export Ltd, stated the companies felling licence only covered Arovo and Gae customary land and that the 2^nd defendant company, Sunway (SI) Ltd, had “indeed encroached into the boundary of Tavadai customary land”.

The claimant named Nogha was representative of the Tavadai landowners in earlier agreements with mineral prospecting companies as shown by the statement of Alastair Aleve who had joined with the two Noghas to represent all the landowners. The Forestry Report as to damages and value of timber felled also accepted their representative capacity as did Wince Haro, the tribal representative of adjoining concessions. I am consequently satisfied, in the absence of proper evidence by the logging contractor Sunway (SI) Ltd to refute standing, that these claimants have the right to represent and Claim.

This Claim is one of tort, not contract. The tort is that of trespass on the evidence of the claimants, and that of Stanley Lavu with the material set out in the Forestry Report, I am satisfied the logging company had trespassed into the land known as Tavadai and taken marketable timber from that land without the landowners authority.

The Company relies in its defence on the fact that the timber was taken from Voge’s concession area and consequently denies trespass. For the reasons given, the evidence is against the company.
By counter claim, however, the defendant company, Sunway (SI) Ltd pleads the claimants are barred from action by virtue of an out of court settlement reached prior to commencement of proceedings. It would appear the contractor machines and equipment had been seized. Such seizure was, it must be presumed, to have been under this Court’s orders following upon the default judgment for debt, a judgment later set aside. There is no set-off, as it were, for the loss of business opportunity or return on the use of the machines and equipment in the circumstance of the court order, against this claim by the Tavadai land representatives.

But the allegation the claim has been settled before the institution of proceedings in an issue to be addressed.

The settlement (and claimed bar to institution of proceeding) was evidenced by a letter dated 4/06/2015 to the company Sunway (SI) Ltd by one Christian Karejama (for the Tavadai landowners)
“Dear Sir,
Re: Compensation claim settlement – Tavadai customary land, Vangunu.

Prior to our (Tavadai landowners & Wince Haro) meeting on the 15/06/2015 regarding the above. Both parties have now agreed to settle this latter before proceeding further with the operation on Tavadai Customary Land.

The Compensation payment as agreed today is $ 150,000.00 to be paid to a nominated applicant account or by half of cash to the Landowner being represented by Pr. Christian Karejama.
On the some note, no further or additional claim is to be made by either parties regarding this matter.

Thank you very much for your continuous support.

Pr. Wince Haro Pr. Christian Karegama”

I accept the money was paid by Sunway (SI) Ltd; payment acknowledged by the claimants. The claimants deny such payment barred them from proceedings. The Reply and Defence to Counter- claim, at 4 says.
“The said SBD$150,000.00 that was paid by the Second Defendants was received by one Tristan Karegama without the knowledge and consent of the Claimants. The said Tristan Karejama is not one of the Claimants in this proceeding. Notwithstanding that fact, the payment was a part payment of the Claimant’s total claim for trespass.”

By “minute” dated 15 June 2015 (Exhibit “TF3”) to Taylor Fang statement, (for the defendant company) again these two, Wince Haro (as licence Tim2/84) and Christain Karegama (with James Tom, secretary) resolved as follows,

“Resolution
It was unanimously agreed that Pr. Christain Karegama is the only person authorized to liaise with Voge Timber Export Ltd to arrange the proposed logging operation and to make sure, that all benefits derived from this operation is to be equally shared between the beneficiaries.
It was further agreed that a “Consent” letter from the land Trustees as represented by Pr. Christain Karegama must be received by (VTEL Tim 2/84) before signing of a Memorandum of Agreement between the two parties to commence this proposed logging operation.
Meeting adjourned: 11:20 am”

The Resolution may be seen to acknowledge the fact that Tavadai “land trustees” need consent before any proposed logging operations in Tavadai may proceed. Clearly the original 1^st defendant Voge Timber Export Ltd, by its agent Wince Haro acknowledged authority to enter Tavadai customary land rested with the “land trustees.”

I consequently find the earlier letter of the 4 June 2015 signed by these two, Christian Karegama and Wince Haro, to be self-serving, without authority of the landowner representatives, for no evidence has been adduced to show the “land trustees” had adopted either the letter or the Resolution in the minutes.
The “settlement” by payment of the sum of $150,000.00 has not been made out. The claimants are not barred, whether by procedure or form of document, from instituting this claim. Even if the letter was by form, found to be effective and the “contract” bound these claimants, whilst perhaps unimpeachable, in the absence of Stamp duty paid and endorsed, it may not be enforced by the court.

The parties do not presume to avoid the benefit of the payment, but it does not, on the claimants part, amount to a bar in these proceedings, taken by the proper representatives. They merely acknowledge moneys had been paid.

I accept the underlying basis of the claim has been shown by the accepted report accompanying the Ministry of Forest letter dated 4 June 2015 to Voge Timber. I find the SBD value of the log taken from the Tavadai land to be $ 886,894.73.
(Annex “AA3” to statement of Alastair Aleve dated 1 September 2015)
I do not accept the claimants are beneficially entitled to the “penalty” of 200% (accorded right in the Forestry) and I do not accept the $ 150,000 paid earlier at the apparent instigation of Wince Haro to further his companies purpose to log Tavadai land, should not be taken into account as part satisfaction of the value lost by the trespass and sale of logs, when the defendant Sunway (SI) Ltd was acting as contractor for Voge Timber, which may be presumed to have benefitted from such sale, and may be assumed to have dealt with such moneys received from the sale of the logs unlawfully felled.

Nevertheless, the defendant Sunway is liable for the trespass. I award damages in the sum of $736,894.73 for trespass (having taken account of the $150,000 already paid) together with interest in accordance with the Rules from the date of institution of the proceedings and costs on the 3^rd schedule basis.

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BROWN J