Athena Investment Ltd v Tuni [2022] SBHC 118; HCSI-CC 28 of 2018 (14 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Athena Investment Ltd v Tuni
Citation:
Date of decision:	14 June 2022
Parties:	Athena Investment Limited, Jaya Berjaya Limited, Gallego Resources Limited v Makiva Tuni, Pentani Runi and Eddie Ngava, James Ari, Misila Ari, Jacob Ari, Konggukolo Forest Resources Development Company Limited, Pacific Everest Lumber Company Limited, Attorney General
Date of hearing:	22 February 2019
Court file number(s):	28 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota, PJ
On appeal from:
Order:	Their claim is strike out with cost for the applicant to be taxed if not agreed.
Representation:	Mrs Tongarutu N for the 1st ,2nd and 3rd Defendants/Applicants Mr Kingmele R for the 1st and 2nd Claimant/Respondents
Catchwords:
Words and phrases:
Legislation cited:	Business Names Act [Cap 178],
Cases cited:	Noro v Saki [2016] SBCA 18, Omex Ltd v Success Company Ltd [2014] SBCA 6, Hubbuck v Wilkinson [1899] 1QB 86, Wenlock v Moloney [1965] 2 ALL ER 871, Takani v Motui [2002] SBHC 10

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.28 of 2018 / 535 of 2017

BETWEEN

ATHENA INVESTMENT LIMITED
First Claimant

AND:

JAYA BERJAYA LIMITED
Second Claimant

AND:

GALLEGO RESOURCES LIMITED
Third Claimant

MAKIVA TUNI, PENTANI RUNI AND EDDIE NGAVA, JAMES ARI, MISILA ARI, JACOB ARI
First Defendant

AND:

KONGGUKOLO FOREST RESOURCES DEVELOPMENT COMPANY LIMITED
Second Defendant

AND:

PACIFIC EVEREST LUMBER COMPANY LIMITED
Third Defendant

AND:

ATTORNEY GENERAL
(Representing Commissioner of Forest)
Fourth Defendant

Date of Hearing: 22 February 2019
Date of Ruling: 14 June 2022

Mrs Tongarutu N for the 1^st, 2^nd and 3^rd Defendants/Applicants
Mr Kingmele R for the 1^st and 2^nd Claimants/Respondents

RULING ON APPLICATION TO STRIKE OUT CLAIM

KOUHOTA J
Introduction

Two similar disputes over the logging operations taking place within the Luqa/Konggukolo Land between some or the same parties to the current proceeding first came before the Court in civil case no. 249 of 2017 and civil case No. 535 of 2017. Both earlier proceedings ended up being discontinued. The present proceeding is again a dispute between some of the parties to the earlier proceedings relating to the issues in the discontinued proceedings.

The background issues in this case are quite complex and seem to arise out of the behaviour and conduct of the landowners themselves, more so the timber right grantors taking sides with different logging operators on their land. The issue are made more complicated by the grantors registration of a business name which the claimants referred as a company. In fact the registered entity Konggukolo Forest Resources Development Company (KFRDC) consist of the timber right grantors themselves.

They then applied for a license using registered business name and were granted a felling licence by the Commissioner of Forest. After this KFRDC entered into various Technology Marketing Agreements (TMA) with logging operators to conduct logging operations under their licence in the Konggukolo Customary Land.

The Claim.

By amended claim filed on 3^rd January 2018, the claimants seek the following reliefs:-

1. That the first defendants had misrepresented themselves as the holder of felling licence no. Tim 2/126 and had subsequently executed a Technology Marketing Agreement with the said third defendant on 1^st May 2017.
2. That the first defendants had no mandate and autonomy from the Konggukolo Tribe to enter into the Technology Marketing Agreement with the third defendant date 1^st May 2017, is null and void ab initio.
3. That the Technology Marketing Agreement executed between the first and third defendants dated 1^st May 2017 is null and void ab initio.
4. That subsequent to order 3 above that the entry and the logging operation of the first and third defendants with their employees, agents and associates is illegal and amounts to an act of trespass.
5. That the first, second and third defendants are liable to pay to the first, second and third claimant damages for trespass and conversion of the trees extracted from the said customary land to be assessed.
6. That the fourth defendant was negligent in his duties to properly administer the provision of the Forest Resources and Timber Utilisation Act and approving the third defendant’s annual harvesting plan and coupe plan whilst there has been an existing Technology Marketing Agreement the first claimant and the license holder.
7. That fourth defendant had erred in allowing the third defendant to operate logging on Konggukolo Customary Land without the consent of the claimants.
8. The third claimants also seek order for interest and cost.

The Application to strike out the claim

This application is an application by the third defendants under rule 9.75 (a), (b) and (c) of the SI Court Civil Procedure Rules seeking the following reliefs;

1. That the claim is frivolous and vexatious.
2. No reasonable cause action is disclosed by the claim,
3. The proceedings is an abuse of the process of the Court,
4. The claimant have no locus standi.

Mr. Kingmele for the claimants/respondent submitted that the applicant should not rely on sworn statement and evidence adduced in CC 535/17 because he submits the matters were not consolidated. The Court record however, showed that an order for consolidation was made by the Court on 1^st June 2018 but none of the counsels took out the formal orders to perfected by the Court. Be that as it may, my view is that an order for consolidation was made hence in that respect. I will allow reliance on evidence and documents filed in respect of CC 535/17 to be read and relied on in the present proceedings.

The third defendant/Applicant in support of the application relied on sworn statements, some of which were filed in CC 535 of 2017. The test to apply when determine applications of this nature have been stated by the Court of Appeal in a number of previous cases. In Noro v Saki (2016) SBCA 18 the CA held that- As the judge identify on an application to strike out based on a claim that revealed no case of action, the judge must assume the claim can be proved. The judge must then ask- assuming the claimant can prove all the allegations, does the claimant have a sustainable cause of action?

The facts of this case are long and complex, I set them out below as summarised by the applicant.

Facts

In 1999, six persons who claimed to be identified as timber rights grantors for Luqa/Konggukolo Land registered themselves under the business name Konggukolo Forest Resources Development Company (under Business Names Act (Cap. 178), certificate of registration BN 75 of 1999.

The business entity, KFRDC then entered into a standard logging agreement with the timber rights grantors who are also directors/proprietors of KFRDC and was issued with felling Licence Tin 2/126. At the expiry of the term of the felling licence, it continued to be renewed without the necessity of signing a new standard logging agreement with the timber rights grantors.

Under this felling licence, KFRDC signed Technology Marketing Agreements (TMA) with various contractor companies to carry out the logging operation. Unlike the Standard logging agreement, the TMA with any contractor at the expiration of the term of the contract need not be signed by the persons registered under the business name Konggukolo Forest Resources Development Company.

Since registration of the (6) original persons/proprietors of Konggukolo Forest Resources Development Company registered BN 75 of 1999, only Misake Nagoto and Don A Riqeo remain as surviving Timber Rights Grantors. The felling licence continued to be renewed and the TMA signed with persons not authorised to sign logging agreement with contractors.

By May of 2017, the deceased timber rights grantors and proprietors were not replaced and so the first defendants being members of the Konggukolo Tribe by a resolution at a tribal meeting decided to appoint replacements of the deceased persons and proprietors. They became registered under the same business name but under a new registration BN 20171323.

The first defendants at the material time renewed the Felling Licence Tim 2/126 and signed a TMA with the third defendant to log Ambuhu Reserve Land inside the concession area.

The registration of the first defendant was disputed by Sam Patavaqara who claimed to be chairman of KFRDC and in July 2017, they were removed from the business name register and replaced by John Ari, Pentani Runi and others as registered proprietors of KFRDC under its re-issued Certificate of Registration on 18^th July under BN 19990075.

Grounds for consideration in the Applications

For practical purposes I will deal first with the 4^th ground alleged in the application in view of the fact that the rest of the proceeding hangs on this issue/ground. If it is proved and accept by the Court then that is the end of the matter, all other grounds will fall and the claim will collapse. To determine the issue locus standi it is necessary to consider who the claimants are and the rights granted to them by KFRDC;

First claimant

The first claimant is Athena Investment LTD. The pleading show the first claimant is company incorporated under the laws of Solomon Islands and operates business in the forestry sector. It is the contractor carrying out logging operation on Konggukolo Customary Land under felling licence Tim 2/126. The holder of the felling licence Tim 1/126 is Konggukolo Forest Resources Development Company (KFRDC). Obviously the first claimant does not hold a felling licence or was a person to whom timber rights was granted or has acquired timbers rights over Konggukolo or Ambuhu Customary Land or Ambuhu Reserve Land. But I assumed their right to carryout logging operation on Konggukolo Customary Land flows from their TMA with KFRDC.

The second claimant

The second claimant Jaya Berjaya Ltd like the first claimant is a company incorporated under the laws of Solomon Islands and a contractors assigned by the first claimant to carry out logging operation on the Konggukolo Customary Land.

The third claimant

The third claimant is a company duly registered duly under the Laws of Solomon Islands and had been further assigned by the second claimant by deed of assignment to carry out logging operation on Konggukolo Customary Land.
The law and conclusion.

In Omex Ltd v Success Company Ltd [2014] SBCA 6 COA CC 16/13 the Court cited with approval Hubback V Wilkinson [1899] 1QB 86 and Wenlock v Moloney [1965] 2 ALL ER 871 and stated that the proper approach under rule 9.75 is that ‘ the summary procedure of striking out should only be used in plain and obvious case and that the procedure was not suitable for case requiring a minute and protracted examination of facts in order to determine whether the plaintiff had a good claim”

In Tikani v Motui [2002] at p 7 Palmer J as he then was said ‘so long as the statement of claim discloses some case of action, or raises some questions to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out. If however, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out.

The material before the Court show that all the three claimants holds no Technology Marketing Agreement with KFRDC over Ambulu Reserve Land except the third defendant who has executed a Technology Marketing with KFRDC. The claimants are all operating outside of Ambulu Reserved Land. What this in effect means is that the claimant have no timber rights granted to them nor a grant of profit over Ambulu Reserve Land.

Therefore, since none of the claimants has any assigned rights to carry out logging operation on Ambulu Reserved land they have no locus standi to bring any actions for trespass or damages against the third defendant and may be the rest of the defendants as well. As a matter of law the issue of locus standi obviously makes it hard for their claim to succeed. Their claim is strike out with cost for the applicant to be taxed if not agreed.

THE COURT
EMMANUEL KOUHOTA
PUSINE JUDGE