Kolly v Attorney General [2019] SBHC 22; HCSI-CC 163 of 2018 (18 March 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kolly v Attorney General
Citation:
Date of decision:	18 March 2019
Parties:	Ernest Kolly, Josiah Pone, Nicholas Maekana and Basil Manelegua, Muarice Kaprumana, Austine Boiregia and Lawrence Maneali v Attorney General, Samuel Manetoali, Richard Talu, Ambrose Kotu, Harold Trasel and Walter Supa, SKT Wawasan (SI) Limited
Date of hearing:	25 February 2019
Court file number(s):	CC 163 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	Refuse to grant order to set aside the orders made by this court on 25th September 2018 Refuse to grant order that the compliance of order 2 by the second and third Defendants be abridge Refuse to grant that the three customary lands namely taligi, kologajoga and huali, kolosogna be omitted from order 2 of the Court order on 26th September 2018
Representation:	Mr. B Kaehuna for the First and Second Claimants Mr. S Banuve for the First Defendant Mr. L Kwaiga for the Second and Third Defendants
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Timber Utilisation Act, s.4
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 163 of 2018

ERNEST KOLLY, JOSIAH PONE AND NICHOLAS MAELANA
First Claimant
(Representing Mariu Vihuvunagi Tribe of Isabel Province)

BASIL MANELEGUA, MUARICE KAPRUMANA, AUSTINE BOIREGIA AND LAWRENCE MANEALI
Second Claimant

V

ATTORNEY GENERAL
First Defendant
(Representing the Minister of Forestry and Research)

SAMUEL MANETOALI, RICHARD TALU, AMBROSE KOTU, HAROLD TRASEL AND WALTER SUPA
Second Defendant

SKT WAWASAN (SI) LIMITED
Third Defendant

Date of Hearing: 25 February 2019
Date of Ruling: 18 March 2019

Mr. B Kaehuna for the First and Second Claimants
Mr. S Banuve for the First Defendant
Mr. L Kwaiga for the Second and Third Defendants

RULING ON APPLICATION TO SET ASIDE/VARY COURT ORDERS

Faukona, J: An application to set aside or alternatively to vary the orders of this court dated 25^th September 2018, was filed on 12^th October 2018. That application was then amended on 16^th October 2018.

2. To be precise, there is nothing in the submissions by the Counsel for the Second and the Third Defendant as to the reasons why they seek to set aside the entire order of the court on 25^th September 2018.
3. It would appear that the Counsel was confining in his submissions on the variation of Order 2 to read “that the customary lands namely taligi, kologajoga/mafara and huali/kolosogna be omitted from the rest of order 2. Assumably those three customary lands were part and partial of limapogu and tatamba customary lands which were restraint.
4. The Counsel’s rational for seeking variation is because the ownership of those lands had already been determined by the land courts and their finality had been concluded.
5. The Counsel for the claimants is prepared to accept variation in regards to residence but no more. Arguably, if residence is permitted then entry can be permitted as well, logic dictates. Actually the Counsel has missed the point by some distance. Residence in the context of this case refers to those who had already resided on the lands but not new comers who might gain entry with strange things.
6. The whole entire case pivoted on the decision made by the then Minister of Forestry and Research, who is the first named first Defendant himself, by granting exemption notice under s.4 of Forest Resources and Utilisation Act, for felling of trees as initial preparation of certain development aspirations as road works, housing project, business centre, tourism development and industrial site.
7. The intention was that the felled logs which initially cleared for development will be exported for sale.
8. S.4 does allow felling of trees for sale to be licensed. And by sub-section 1(c) allows the Minister to declare by notice to be exempted for other purposes. The purpose here must, in my view, logs not for sale but others. It would appear from the provision that felling of trees for sale from any land be licensed, is mandatory.
9. Therefore, whether the issue of ownership to customary land had been settled by the land courts, without further challenge does not matter. The law applies universally, whether extraction of logs from ones land been settled by court, is for sale, one must have a felling license. To obtain a license is to comply with another process and not the process which the Minister adopted in this case.
10. Therefore, I must refuse to grant the application to set aside, but with strict variation to reside only but not entry. Entry might be misinterpreted if conditions are not set down as in the current case.

Orders:

(1) Refuse to grant order to set aside the orders made by this court on 25th September 2018.
(2) Refuse to grant order that the compliance of order 2 by the second and third Defendants be abridged.
(3) Refuse to grant order that the three customary lands namely taligi, kologajoga/mafara and huali/kolosogna be omitted from order 2 of the Court Orders on 26^th September2018.

THE COURT
JUSTICE R FAUKONA
PUISNE JUDGE.