Ioraiwara Holdings Ltd v Tropical Green Co Ltd [2020] SBHC 74; HCSI-CC 07 of 2019 (8 September 2020)

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Case name:	Ioraiwara Holdings Ltd v Tropical Green Co. Ltd

Citation:

Date of decision:	8 September 2020

Parties:	Ioraiwara Holdings Limited v Tropical Green Company Limited, Burwood Company Limited

Date of hearing:	14 August 2020

Court file number(s):	07 of 2019

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota PJ

On appeal from:

Order:	The whole claim is dismissed All injunctive orders issued in favour of the Claimant are hereby discharged forthwith and cost will be against Claimant to be taxed if not agreed

Representation:	Fakarii C for the Claimant Lidimani D for the Defendants

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:	Simbe v East Choiseul Area Council [1999] SBCA 9, Success Company v Takolu Timbers [2011] SBHC 65

The Claimant, on 7^th January 2019, obtained the following ex-parte interim orders against the defendant;

The court then directed the Claimant to file a substantive claim within 14 days. The Claimant finally filed the substantive claim on 5^th February 2019 seeking the following remedies;

The agreed facts are summarised on page 3 of the Claimant's written submission tendered at the trial. It is not necessary to repeat them.

The Claimant holds a Felling Licence No.A101128 which covers Apuiraramoa Customary Land. License No. A101128 expired on 19^th June 2017. Three months after the expiration of the license, on 6^th September 2017, landowners of three sub-tribes of Apuiraramoa namely Koruhaiwapu, Aenimaro and Pauriuwo send to the Claimant a notice revoking their STA with the Claimant.

In order to answer the questions posed for determination, one must understand how the Claimant’s claim was premise. The first relief sought by the Claimant is damages for conversion. The relief I believe premises on the Claimant’s assertion that it has a valid Standard Logging Agreement (SLA) with the landowners and that the letters by the landowners of 1^st and 6^th September 2017 were in breach of the previous SLA. Essentially what the Claimant is saying is that they have a valid SLA with the Landowners of Apuiraramoa hence the second SLA entered into with the 1^st defendant is invalid. To determine the validity of the second SLA, the question is, why did the landowners, John Arahaori, James Maipuru and others decided to enter into a new SLA with the 1^st defendant. These landowners entered into SLA with the first defendant on 16^th March 2018 at a time when the Claimant’s felling licence was expired. The Claimant's felling licence was not renewed until 13^th December 2018. This means for a period of about six months, no one held any felling licence over customary lands within the Apuiraramoa boundary, it may also mean that there was no logging operation taking place on the land at that time because if the Claimant was operating then it was illegal because their felling licence had expired.

I believe the reasons why the landowners of the three sub-tribes decided to grant timber rights to the First Defendant over three sub-tribes or clans land within Apuiraramoa boundary are stated in the sworn statement of Boniface Araiasi filed on 11^th February 2019. The Claimant pleaded that the First Defendant felling licence did not cover Apuiraramoa Customary Land. That is true in a sense but on the evidence before the court, that assertion is misleading because while the land on which the First and Second Defendants were operating were within the boundary of the Apuiraramoa, the sub-tribal land on which the First Defendant was operating are owned by sub-tribes or clans and the rightful owners had granted timber rights and SLA in favour of the First Defendant.

One must understand the customary land tenure of Are’are and Small Malaita to appreciate why John Arahaori and others granted timber rights and SLA in favour of the First Defendant. I come from the South Malaita region and I am familiar and know very well the customary land tenure system of Are’are and Small Malaita. I considered that I am entitled to use my knowledge or take judicial notice of the customary land tenure of Are’are and Small Malaita.

In the Are’are and Small Malaita customary land tenure system, there are tribes (called Iora in Are’are and South Malaita dialect) within each tribe there are sub-tribes called (Aporoa in Are’are and South Malaita dialect) within the subtribes there may be small subtribes or clans (called Arinairusu or Hununimane). Customary Land in Are’are and Small Malaita are owned by the sub-tribes (Aporoa,), not by the tribe or Iora. The sub-tribal lands however made up the tribe (Iora) but the tribe or Iora do not own the sub-tribal lands. What it means is that the land is owned by the sub-tribes which together made up the tribe or the Iora. The tribe (Iora) more or less refer to the people and boundary of the area rather than land ownership because in Are’are and Small Malaita, we may belong to the same tribe but we do not own the same customary land. In fact, the people of the sub-tribes owned the land which together covers a large area often referred to by scholars and outsiders as the tribal land. In this land tenure system, therefore, the concept that the tribe owned the land may be confusing to an outsider because it is the people of the sub-tribes that owned the land, not the tribe or Iora which refers to the people and not necessarily the land ownership.

An analogy can be made with the Honiara City, Honiara City is made up of land owned by individual FTE and PE holders. The FTE/PE parcels of land together made up Honiara City and its boundary but the Honiara City Council or people do not own the same piece of land even if all the land are within the city boundary. The City Council have no power to dispose of the FTEs only the FTE holders can. The land tenure system in Are’are and Small Malaita can be understood in that concept except that the Honiara City refers to a land boundary and maybe not necessarily the people. In essence in Are’are and Small Malaita, Land is not owned together by a tribe we may belong to the same tribe but we do not own the same land.

Thus in the present case, Apuiraramoa tribe refers to the people of the sub-tribes which made up Apuiraramoa tribe ( Iora) but the customary lands are owned by sub-tribes or clans (Aporoa). In this respect, members of each subtribe or clan are free to decide who to grant timber rights to or enter in to any SLA with, just as any FTE holder within Honiara City can dispose of his or her FTE without the consent of the Honiara City Council.

The Claimant relied on the first paragraph of the termination clause of the SLA dated 5^thApril 2012 and asserted the notice given by Mr Arahaori and others breaches the clause of the SLA because the Claimant does not breach any obligation under the agreement. Mr Lidimani, however, submitted that by operation of the law, the SLA terminates when the felling licence expired and as a matter of practice or procedure the Claimant should have applied to renew his licence three months prior to its expiration. He submits that the SLA cannot survive beyond a licence issued under statute. He submits that when it expired the licensee should apply to re-execute a new SLA with the landowners and since Form IV (SLA) need to be executed it must be endorsed by the Provincial Government and then forwarded to the Commissioner of Forest. Renewal will only be considered on receipt of Form IV (SLA). Mr Lidimani submitted that there is no evidence that any Form IV was re-executed in favour of the Claimant. Thus upon the expiry of the Claimant’s licence, the trustees of Apuiraramoa are at liberty to consent their land to any other logging company. He submits that is what the landowners of the sub-tribes of Koruhaiwapu, Aenimaro and Pauriuwo did. They conducted a timber rights hearing and grant their timber rights to the First Defendant and executed a Form IV (SLA) in favour of the First Defendant because the Claimant at that time has no felling licence.

The evidence shows the landowners which include John Arahaori, James Maipua, Sam Opuopu, Selwyn Wate and L. Haaetea grant timber rights and entered into SLA not as representatives of the Apuiraramoa tribe (Iora) but as representative and owners of individual sub tribal land (Aporoa land) within Apuiraramoa tribe (Iora). Their actions are within their rights and cannot be held illegal. In Simbe v East Choiseul Area Council^[1] the Court of Appeal said, “The Legislation is clear and there have been a number of cases which reflect that, before the Commissioner can issue a licence, there must be an agreement between those who own the timber and whoever applied for the Licence^[2]. The authority to carry out logging is “conferred no by the licence issued by the Commissioner under section 5 (1A) but only by an approved agreement. In Success v Takolu Timbers^[3] Chetwynd J said, “That means at the time of issuing the licence, there must be a valid timber agreement. It seems that if a licence is renewed rather than issued there must be a valid timber agreement at the time of renewal.” The evidence showed that there was no valid timber rights agreement in favour of the Claimant over the sub-tribal lands of Koruhaiwapu, Aenimaro and Pauriuwo as the previous land trustees have withdrawn from the previous SLA between them and the Claimant and enter into a new agreement (SLA) with the First Defendant in respect of their sub-tribal land. The Claimant asserted that it had valid SLA with the Claimant, however, I accept the submission of Mr Lidimani that the original SLA between the Claimant and the Trustees of Apuiraramoa expired with the Felling Licence No. A 101128 on 27^th June 2017 as it cannot survive beyond a licence issue under statute or otherwise it terminates consequent to the notice given by the trustee of Apuiraramoa.

This issue of conversion was considered in Success Company v Takolu Timbers Ltd and others^[4] , In that case, the claim was premise on the timber and Felling License (TIM 2/38) issued by the Commissioner (and possibly the 1993 agreements) gave Success exclusive rights to all timber on the lands covered by the licence (and agreements). Chetwynd J observed that no argument was advanced and no authorities were provided on that point yet it is fundamental to the case. His Lordship concluded, “...that a careful study of the licence does not reveal any suggestion of exclusivity. The Licence is granted to Success Company Ltd to, “cut, fell and take away timber.” I am unable to find anything in the legislation imbuing exclusivity to a licence holder. A similar careful study of the agreements also fails to reveal any element of exclusivity. In the agreements the Representatives, “grant to the company the right to fell, harvest and extract timber for sale from the customary lands on Ward 1. Guadalcanal Province. The legislation, in so far as it relates to approved agreements, does not imply exclusivity in an agreement. For example, there is nothing in section 6 (found in Part III of the Act) and in the definition of timber rights to suggest they are exclusive in nature”.

His Lordship went on and held, “If neither the licence nor the agreements are exclusive, and even if the findings detailed above about trespass and conversion are entirely erroneous, Takolu would be able to rely on the licence granted to it and the agreements entered into by it as a defence to any claim grounded in trespass or conversion. Takolu would have equal rights with Success to cut, fell and take away timber or fell, harvest and extract timber for sale.”

The facts of the present claim are the same as in the Success v Takolu case hence I respectfully adopted the conclusion of Chetwynd J and find that even if the Claimant's licence and SLA are valid, it is not exclusive. The Defendants having been granted timber rights with SLA in their favour has equal right to carry out logging operation on the parcel of customary land over which they have a licence and SLA notwithstanding that the parcels of customary are within the Apuiraramoa tribe boundary. The whole claim is dismissed. All injunctive orders issued in favour of the Claimant are hereby discharged forthwith and cost will be against the Claimant to be taxed if not agreed.

^[1] Success v Takolu timbers Ltd and others HC-SI civil case 80 of 2009
^[2] [1999] SBCA 9, ca-cac 8 of 1997.
^[3] Supra
^[4] supra

High Court of Solomon Islands

Ioraiwara Holdings Ltd v Tropical Green Co Ltd [2020] SBHC 74; HCSI-CC 07 of 2019 (8 September 2020)