Nualasi v Sunway (SI) Ltd [2020] SBHC 51; HCSI-CC 45 of 2017 (23 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Nualasi v Sunway (SI) Ltd
Citation:
Date of decision:	23 July 2020
Parties:	Severino Nualasi v Sunway (SI) Limited, Ta’aiwara Cooperation Association Company
Date of hearing:	28 September 2019
Court file number(s):	45 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota PJ
On appeal from:
Order:	On the materials before the Court, I am satisfied the allegation of trespass on Wai Customary Land or that merchantable trees were harvested illegally by the Defendants was not proven by the Claimant. The claim must be dismissed with cost against the Claimant to be taxed if not agreed.
Representation:	Ngaingeri A for the Claimant Tagini M for the Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 45 of 2017

BETWEEN

SEVERINO NUALASI
(Representing Wai Tribe of Wai Customary Land)
Claimant

AND:

SUNWAY (SI) LIMITED
First Defendant

AND:

TA’AIWARA COOPERATION ASSOCIATION COMPANY
Second Defendant

Date of Hearing: 28 September 2019
Date of Judgment: 23 July 2020

Ngaingeri A for the Claimant
Tagini M for the Defendants

JUDGMENT

KOUHOTA J
Background

The Claimant Late Severino Nualasi is a member and representative of Wai Tribe who are the customary landowners of Wai Land in West Are’are, Malaita Province. He is now deceased and by leave of the court was replaced by Mr Sipriano Taamora to continue the proceeding. Mr Taamora filed a sworn statement on 8^th March 2019 in which he confirmed that he replaced the late Severino Nualasi to continue the proceeding on behalf of the Wai tribe.

The First Defendant is a logging company duly registered under the Companies Act 2009.

The Second Defendant is the holder of Felling License No. A101241 over plots of land in East Are’Are, Malaita Province, namely: Roatarau, Naoniai’i, Marahunipina, Risuhata, Paona, Teinari, Harake, Uruhairamo, Apahoroa, Maniau, Makakahu, Hahoni, Hauroho, Ha’aiha, Tarakau, Aitawaro,

Ahuiara, Aitoro, Maniasiroto and Wainiura Customary Lands.

The Claimant’s ownership of Wai Customary Land is not disputed in this proceeding. What seems to be the dispute is the Terms of a road access agreement enter into between the Claimant and the Defendants. The Claimant states that in or about October 2014, the First and Second Defendants entered into an access agreement with members of the Claimant’s tribe for road access through Wai Customary Land in order to access the Customary Land covered under the Second Defendant’s concession.

The claim.

The Claimant says that despite the request by the Claimant to have access to a copy of the access agreement, the Defendants have refused to supply a copy of the said agreement to date. The Claimant says his tribe, at all material times, did not consent to or approved the First Defendant to extract logs felled during its road access construction works in Wai Customary Land for export purposes. Claimant further alleged that the First Defendant carried out the following illegal activities:

(a) Construction of a road through Wai Customary Land with a measurement of more than 40 meters as the maximum cleared area for road line under the Solomon Islands Code of logging practice 2002;
(b) Logging operation which involved Felling of trees, skidding of logs and transporting logs to log pond for export purposes;
(c) The said logging operation further disturbed and damaged the soil and the environment on the Customary Land.

That in or about December 2015, the Claimant confronted the First and Second Defendants and sought to negotiate in good faith for an amount to be agreed upon for the logs that have been felled and extracted for export from Wai Customary Land but the Claimant said the Defendants refused to do so.

That after refusing to negotiate for an agreed amount as narrated in the preceding paragraph, the First Defendant made two (2) export shipments of logs felled and extracted from Wai Customary Land without the consent of the Claimant’s tribe.

In or about November 2016, the Claimant after receiving the said 10 percent royalty payment, further wrote to the First Defendant demanding a payment in the amount of $350,000.00 to be paid to his tribe as the said 10 percent royalty payment does not reflect an amount sufficient to compensate the Claimant for entering Wai Customary Land and extracting logs for export purposes without their consent or approval.

That the First Defendant refused and or neglected and rejected to pay the further sum of $350,000.00. Consequently, Claimant says the First Defendant’s action of entering the Claimant’s Customary Land amounts to trespass and illegal harvesting and exporting of logs without the Claimant’s consent and approval thus the actions of the First Defendant in extending more than 40 meters clearing of road line amounts to a breach of the Solomon Islands Code of logging practice 2002.

The Claimant further deems that the actions of the First and Second Defendants have failed to comply with the requirements of the Forest Resources and Timber Utilisation Act.

Issues for Trial

The issues for trial can be narrowed only to two issues;

(1) Whether or not the First and Second Defendants trespassed into Wai Customary Land?
(2) Whether or not the First and Second Defendants removed merchantable forests produced for their own benefit and enriched themselves as a result of such actions.

Issue of Trespass

The Defendants denied the allegations and say they entered into a verbal agreement for the road access with the Claimant's tribe representative at a meeting at Mawara Village. The Defendants produced a letter by the Claimant to that effect. The evidence shows that the Claimant has signed a consent letter to allow the Defendants to construct an access road through Wai Customary Land. Copy of the Claimant's letter was exhibited to the sworn statement of Silvester Paina “Ex.SP 2” tendered as evidence at the trial. The letter dated 15/5/2015 reads as follows;

“From. Waikukua Village, Uhu port West Areare Ward 24, Malaita Province.
To: Taewara Licensee C/ Sunway Contractor, Honiara.
Dear Sir,
Road Access through Wai Malaita Province.
This is to confirm that our tribe has agreed that your road to transport logs can be access through our customary land. Be informed that our verbal discussion is final and our signatures showed that we totally agree and approved the road access for you and no other” end of quote. The letter was signed by four persons namely; Christopher, John Houma, Aloysio Awai, and Severino Nualasi as Landowners.

On the materials before the court, I am satisfied there was no other written agreement between the parties. There was, however, a verbal agreement between the parties as shown by the evidence of Mr Paina confirmed by the letter signed by the members of the Claimant's tribe Annexed “Ex.SP1.” In this respect, the construction of an access road by the Defendants through Wai Customary Land cannot be trespass. I believed what the Claimant claim as trespass now is the allegation that the road access goes beyond 40-meters road line. Construction of a road in the bush is no like drawing a line on a piece of paper. Naturally, trees cut and grounds dozed may fall over the 40-meter lines. Construction of a road beyond the 40-meter road line is a breach of the logging code practices and the responsible authorities should take appropriate action. If the Claimant sues for trespass, they have adduced evidence to prove such allegations. In the present case, the Claimant did not adduce sufficient evidence to prove trespass.

The Claimant asserts there was no timber right agreement with the Defendants to export logs from Wai Customary Land. Even if that is true, practically, any road construction would involved felling of trees to clear the way for the road so whether the Defendants have a timber right agreement or not the logs cut to make way for the road construction must be sold or exported otherwise they will be left there to rod and wasted. In the present case, there was no separate agreement between the parties for the payment of logs so the only reasonable assumption was that the payment for logs cut to clear the way for road is part of the verbal road access agreement. The evidence had shown $45,000 was already paid to the Claimant pursuant to the verbal road access agreement. As alluded to earlier there was no separate agreement between the Claimant and the Defendants on what should happen to the logs felled as part of the construction of the access road hence the only reasonable inference to be drawn is that this was covered in the verbal agreement for the construction of the access road. In the absence of any separate agreement regarding the trees felled to make way for the access road, the Claimant cannot demand anything more than what was in the verbal agreement. It now too late for the Claimant to ask for more than what they bargain for.

With regard to the claim for trespass, the Claimant has produced an environment report of damages in support of their claim, unfortunately, the author of that report was never called to give evidence to confirm the report. Unless the report is tendered by consent the Claimant just cannot tender the report as part of his evidence because he was not the author of the report. There is no proof that reports refer to areas outside of the road line or confirm where the damages or trespass occurred. In fact, the report was not tendered as part of the evidence at the trial hence the court cannot take it as part of the evidence. On the materials before the court, I am satisfied the allegation of trespass on Wai Customary Land or that merchantable trees were harvested illegally by the Defendants was not proven by the Claimant. The claim must be dismissed with cost against the Claimant to be taxed if not agreed.

Right of Appeal.

THE COURT
Emmanuel Kouhota
Puisne Judge