Tohidi v Sunrise Investment Ltd [2023] SBHC 77; HCSI-CC 374 of 2020 (13 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tohidi v Sunrise Investment Ltd
Citation:
Date of decision:	13 September 2023
Parties:	Wilson Tohidi, John Mark Doedoke, Patterson Nagive & Mathias Loji v Sunrise Investment Limited, Edwin Rogemana & Robert Erege
Date of hearing:	25 August 2023
Court file number(s):	374 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I refuse the application of the Claimants for summary judgment. Also on the totality of the evidence as well as the law pertaining to the issue, the application of the First and Second Defendants is allowed. The Claim of the Claimants filed on 4 August 2020 is hereby strike out under r. 9.75 (a) and (b) of the CPR. I order cost against the Claimants.
Representation:	Mr Peter Teddy for the First named claimant Mr Steve Lalase for the and Second and third & fourth named Claimant Mr Donald Marahare for the First and Second Defendants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure ) Rules 2007,r9.75 9a) and (b),r 9.75, Wildlife Protection and Management Act 1998, s 13and s 31 (1) and (2) Wildlife Protection and Management Act 2017 Forest Resources and Timber Utilization Act [cap 42] S 33 and S 34(1) and (2), S 38, S 37, S 33, S 36
Cases cited:	Sunrise Investment Ltd v Tohidi [2021] SBCA 18, Sa'oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4, Tikani v Motui [2002] SBHC 10, Zupukana v Sogati [2016] SBHC 192, Bexter v Glengrow (SI) Company Ltd [2016] SBHC 83, Solomon Islands Home Finance Ltd v Kaota [2013] SBHC 138,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.374 of 2020

BETWEEN

WILSON TOHIDI, JOHN MARK DOEDOKE, PATTERSON NAGIVE & MATHIAS LOJI
(Representing Landowning group of Korona Customary Land)
Claimant

AND

SUNRISE INVESTMENT LIMITED
First Defendant

AND:

EDWIN ROGEMANA & ROBERT EREGE
Second Defendant

Date of Hearing: 25 August 2023
Date of Decision: 13 September 2023

Mr Peter Teddy for the First named Claimant
Mr Steve Lalase for the Second, Third & fourth Claimants
Mr Donald Marahare for the First and Second Defendants

RULING

Bird PJ:

1. There are two applications that needed court’s determination in this case. The first application is an application for summary judgment filed by the Claimants on 11 December 2020 and the second application is the further amended application of the First and Second Defendants filed on 2 August 2023 to dismiss this proceeding.
2. The Claimants in this case had commenced this proceeding by way of a Category A Claim filed on 4 August 2020 seeking damages for unlawful conversion of xanthostemon aka tubi logs on lands within Corona Customary land and for restraining orders from dealing with xanthostemon aka tubi trees felled and ready to be exported on lands within and bordering Korona Customary land. The Claimants also seek interest and cost on indemnity basis.
3. In view of the nature of these two applications, I intend to deal initially with the First and Second Defendants further amended application to dismiss this proceeding. In their further amended application filed on 2 August 2023, the First and Second Defendants sought the following orders namely:
   1. An order dismissing the proceeding in relation to the Claim (Category A) filed on 4 August 2020 pursuant to r. 9.75 (a) and (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007;
   2. The Claimants have lawfully assigned to the First Applicant their customary rights over both the trees in the Korona customary land as well as the tubi trees. Any claim for damages for trespass or unlawful conversion hinges on ownership in custom over the trees on Korona customary land would therefore fail;
   3. On the basis of Sunrise Investment Ltd & Ors v Tohidi & Ors- Civil Appeal Case No. 8 of 2021, the tubi logs illegally harvested and removed from Korona land are now deemed the property of the Solomon Islands Government. The Claimants therefore no longer possess any right of ownership over the said tubi logs. Any such claim premised on the purported ownership of the tubi logs in custom or as a matter of law must fail. The Claim filed in the proceeding is no exception.
4. In support of his application for dismissal of the Claim filed by the Claimants on 4 August 2020, Mr Marahare of counsel relies upon the following documents namely:
   1. The further amended application filed on 2 August 2023;
   2. Sworn statement of Geoff Goroa filed on 2 August 2023;
   3. Statement of Defence filed on 22 January 2021;
   4. Sworn statement of Richard Kong filed on 8 January 2021.
5. It is the case for the First and Second Defendants/Applicants that the issue for determination is whether or not the Claim in general should be dismissed pursuant to r. 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) on the basis of the judgment of the Court of Appeal in CAC 08 of 2022.
6. Rule 9.75 of the CPR provides:
   • r. 975 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
     • a)the proceedings are frivolous and vexatious; or
     • b)no reasonable cause of action is disclosed; or
     • c)the proceedings are an abuse of the process of the court:
     • the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.
7. Having cited the law under which the First and Second Defendants/Applicant are making their application, it is submitted by Mr Marahare that this court as well as the Court of Appeal had deal with r. 9.75 of the CPR in a number of cases. In the case of Chief Norman Sa’oghatoga v Mugaba Atoll & Anor, 14 April 2015 the Court of Appeal held that the judge at first instance misapplied the principles relation to striking out. The principles that should be applied in an application under r. 9.75 of the CPR is that even if the case is weak and not likely to succeed is no ground to strike out the pleadings. If the pleadings are defective, then rather than strike out the claim the court should consider ordering amendments to cure the defects. Such issues are also discussed in the case of Abe v Minister of Finance & Attorney General- HC Civil case No. 197 of 1994 and Tikani v Motui [2002] SBHC 10.
8. Based on the law as stated and the cases cited, Mr Marahare of counsel for the First and Second Defendants/Applicants submits that his clients’ application should be granted. It is submitted that the Claimants Claim is merely premised on damages for unlawful conversion of tubi trees (xanthostemon) sourced from Korona customary land. They are therefore asserting ownership over the tubi trees harvested and sold by the First Defendant/Applicant.
9. It is submitted that on the basis of the Court of Appeal judgment in CAC 08 of 2021, several findings were made by the said court. Those findings, it is submitted supports the First and Second Defendants/Applicants application for dismissal of the Claimants claim. It is submitted that in paragraph 11 of the judgment of the Court of Appeal, they stated the following:
   • Para 11 - This is a significant fact for it demonstrates prima facie evidence of customary rights not only over the trees in the KCL but also over the tubi trees, and which rights had been lawfully assigned to the Appellant. The Respondents therefore cannot assert any better claim over the tubi trees. Just as it is unlawful for the Appellants to fell and remove the tubi trees, no landowner would have any better right unless granted under the relevant legislation to fell and remove tubi trees.
   • Para 36 There are two matters that arise out of this. First is the issue of ownership of the tubi trees. On this point, while the landowners retain ownership rights, the fact remains that tubi trees are protected by law and so even the landowners themselves do not have any rights to fell and remove tubi trees without the appropriate permits by law.
   • Para 37This point needs to be kept separate and distinct from their claims for damages and cost. It is important to note that not all the Respondents had been determined to be the persons lawfully entitled to grant timber rights over KCL. Only one, Wilson Tohidi had been so determined. The other seven representatives had not been joined in the claim. It is important to keep in mind that those representatives.
   • Para 65 It is pertinent to note that the forfeiture orders issued by the Magistrates’ Court authorised the Minister inter alia to effect sale of the forfeited tubi as required and in accordance with the relevant laws on this.
10. It is therefore submitted by Mr Marahare of counsel that the claim of the Claimants be dismissed pursuant to r. 9.75 (a) and (b) of the CPR.
11. On behalf of the 2- 4 named Claimants, Mr Lalase of counsel relies on the following documents namely:
    1. Claim category A filed on 4 August 2020;
    2. Sworn statement of Humphrey Talu filed on 11 December 2020;
    3. Court Order in CC 374 /2020 dated 25 August 2020;
    4. Court Order of COA Case No. 33 of 2020 dated 19 November 2020.
12. The issue for the court to determine in this application is whether the Respondents/Claimants Claim filed on 4 August 2020 should be dismissed pursuant to r. 9.75 of the CPR. It is submitted by counsel that the Claimants/Respondents have merit to pursue their claim. They are the landowners of Korona customary land and there is unlawful harvesting of tubi trees therein by the First Defendant/Applicant. It is further submitted that the primary judge in CC 374 of 2020 when ex parte order were granted. It further submitted by counsel that the First Defendant/Applicant had conducted illegal harvesting tubi trees on Korona customary land. Counsel also relies on paragraph 4 of the judgment of the Court of Appeal in Civil Appeal Case No. 33 of 2020 as well as the case of Zupukana v Sogati [2016] SBHC 192, HCSI-CC 267 of 2014 in his submission.
13. It is further submitted by counsel that in this case, tubi trees were illegally harvested and removed from Korona customary land. They are deemed to be the property of the Solomon Islands Government but this court is urged to consider and take note that the Director of the First Defendant/Applicant was charged and convicted of illegal logging of tubi trees by the Magistrate Court. In other words it is not the Claimants/Respondents that harvested the tubi trees but the First Defendant/Applicant. They say that the unlawful conduct of the First Defendant/Applicant deprived the rights of the resource owners when the Solomon Islands Government issued confiscation of the tubi logs. There is merit in their claim and it is the case for the 2 - 4 named Claimants/Respondents that the application of the First and Second Defendants/Applicants be dismissed with cost.
14. There is no specific submission of Counsel Mr Teddy for the first named Claimant/Respondent on the application by Mr Marahare. Suffice to say that this claimant was one of the determined trustees out of seven others that were determined to be the persons lawfully able and entitled to grant timber rights to the First Defendant/Applicant to conduct logging on Korona customary land.
15. In relation to the application for summary judgment filed by the Claimants/Applicants on 11 December 2020, counsel Mr Teddy relies upon the following documents namely:
    1. Application for summary judgment filed on 11 December 2020;
    2. Sworn statement of Humphrey Talu filed on 11 December 2020; and
    3. Sworn statement of Mathias Loji filed on 11 December 2020.
16. Mr Teddy of counsel also cited r. 9.57 to 9.66 of the CPR as the rules applicable to applications for summary judgment. Upon the provision of the rules as cited, Mr Teddy of counsel submits that the First Defendant has no prospect in defending the claim of the Claimants. It is submitted that the conviction and sentence of Richard Kong Sing Ngea of the First Defendant for the offences of illegally harvesting restricted species without license, export or attempt to export restricted specimen without approval and in possession of illegally obtained specimen by the Central Magistrate Court that had confirmed liability of the First Defendant in this case. It is submitted that this court can take judicial notice of Mr Kong’s conviction under s. 75 (1) of the Evidence Act 2009 as read with s. 14 thereof.
17. In support of his submission, Mr Teddy of counsel had also cited the cases of Bexter v Glengrow (SI) Company Ltd [2016] SBHC 83, HCSI-CC86 of 2014 and Solomon Islands Home Finance v Jack Kaota & Ethel Kaota - Civil Case No. 259 of 2012. The court was of the view that the purpose of summary judgment under r. 9.57 is not only to provide early judgment but also a time for the Claimant(s) and their counsel to assess the defence case and all materials filed on their behalf in court and to show the court that it has no real prospect of success.
18. It is further submitted by counsel that the conviction and sentence of Mr Kong confirmed that the First Defendant had illegally harvested the tubi logs from Korona customary land for export. It is on the basis of that criminal conviction that this court must grant summary judgment against the Defendants. His guilty plea, conviction and sentence in CRC Case No. 1075 of 2020 shows that the defendants have no real prospect of defending the Claimants’ Claim and summary judgment must be granted with cost.
19. On behalf of the 2 – 4 named Claimants, Mr Lalase of counsel has reiterated the crux of the submission of Mr Teddy. Mr Lalase relies upon the three documents mentioned by Mr Teddy as well as the Court Judgment in CRC Case No. 1075 of 2020, Court Order dated 25 August 2020 in this proceeding and Court of Appeal Judgment in COA Case No. 33 of 2020 dated 13 November 2020.
20. It is submitted by Mr Lalase of counsel that Mr Kong guilty plea, conviction and sentence in CRC Case No. 1075 of 2020 confirmed liability on the part of the First Defendant. The allegation of illegal felling of tubi trees on Korona customary land is no longer an issue on the basis of the guilty plea by Mr Kong. Mr Lalase of counsel also relies on prior decisions of this court on the issue of applications for summary judgments.
21. In response to the submissions of Counsel Mr Teddy and Mr Lalase, it is submitted by Mr Marahare that the Court of Appeal in Civil Appeal Case No. 08 of 2021 had made comments adverse to the Claimants’ Claim to this proceeding. It is submitted by counsel that from the adverse comments of the Court of Appeal in their judgment of 12 August 2022, the Claimants’ Claim is frivolous and vexatious and they are not entitled to summary judgment.

Discussion

22. Having heard submissions of counsel for the Claimants and the First and Second Defendants, I will have to determine which of the two applications before me could succeed. From all the submissions from all parties, the conviction and sentence of Mr Kong as Director of the First Defendant is not an issue. Mr Kong had pleaded guilty before the Magistrates Court to all three counts offences relating to harvesting of tubi trees on Korona customary land. He was sentenced and was ordered to pay fines. So the question to ask therefore is what does that guilty plea, conviction and sentence has on the case for the Claimants as well as the Defendants bearing in mind the comments of the Court of Appeal in CAC No. 08 of 2022 to this case.
23. Due to the illegality of the felling of tubi trees by the First Defendant on Korona customary land, the consignment of tubi logs extracted by them on the said customary land has been forfeited by the Crown pursuant to s. 13 and 31 (1) and (2) of the Wildlife Protection and Management Act 1998 as amended by the wildlife Protection and Management Act 2017. The Court of Appeal in paragraph 11 of their judgment commented that the landowners of Korona customary land had lawfully assigned their customary rights over the trees including tubi trees to the First Defendant. The Claimants therefore cannot assert any better claim over the tubi trees. It was unlawful for the First Defendant to fell and remove the tubi trees and likewise no landowner have any better right unless granted under the relevant legislation to fell and remove tubi trees.
24. In this proceeding, the First Defendant as well as the Claimants are not in possession of a permit to fell and remove tubi trees from the subject customary land. It therefore follow that none of the parties could lay claim of ownership over the tubi trees. When the provisions of s. 13 and 31 (1) and (2) of the Wildlife Protection and Management Act 1998 as amended by the wildlife Protection and Management Act 2017 are invoked, the tubi logs are deemed to be the property of the Crown or the State.
25. It is also important to note that apart from the provisions of the Wildlife Protection and Management Act 1998 as amended by the wildlife Protection and Management Act 2017, forfeiture of the tubi logs can also be occasioned under s. 33 and s. 34 (1) and (2) of the Forest Resources and Timber Utilisation Act (cap 42) after conviction of a criminal offence. The Magistrates Court in its judgment of 18 December 2020 had ordered in paragraph 5 of its orders “the forfeiture done by the Minister for Forestry is also imposed and therefore he is deal with the forfeited tubi related to this case as required and in accordance to the relevant laws on this”. The decision of the Magistrate Court was not appealed by any party to that proceeding and that was the finality to that issue.
26. Having noted the decision of the Magistrate Court and no appeal having being filed against that decision, the provision of s. 38 of the FRTUA takes effect. That section provides:
    • s. 38Where possession has been taken of any property under s. 33, and after the expiration of the time limited for appealing under s. 37 or the determination of any such appeal in favour of the Commissioner of Forest Resources, such property or the proceeds thereof if sold under s. 36 shall vest in the Crown absolutely.
27. In this proceeding, there was illegal felling of tubi trees by the First Defendant on Korona customary land. The tubi trees were forfeited under s. 33 of the FRTUA and by court order of 18 December 2020. There was no appeal against the decision of the Magistrate Court. S. 38 of the FRTUA can therefore is invoked which means that the forfeited tubi logs or the proceeds thereof if sold under s. 36 shall vest in the Crown absolutely.
28. It is also noted that the word ‘shall’ is used in this legislation which in my considered view is mandatory in nature. In that regard, I am further of the view that the Claimants who are the purported landowners of Korona customary land do not have any right over the tubi logs or the proceeds of any sale of the said tubi logs. Further to my view, the 2 - 4 named Claimants who were not legally determined trustees over Korona customary land under the provision of the FRTUA would have no locus standi to make any claim for damages for conversion as alleged. Notwithstanding, I am also of the view that having regard to the relevant provisions of the Wildlife Protection and Management Act 1998 as amended by the wildlife Protection and Management Act 2017 and the FRTUA, the Claimants’ Claim filed on 4 August 2020 could not be sustained.
29. I am of the considered view that the Claimants’ Claim for damages for unlawful conversion of tubi logs is misconceived, is frivolous and vexatious and showing no reasonable cause of action, in light of s. 13 and s. 31 (1) and (2) of the Wildlife Protection and Management Act 1998 as amended by the wildlife Protection and Management Act 2017 and sections 33, 34, 36, 37 and 38 of the FRTUA. The Claimants could have had a claim for environmental damage against the First Defendant but that form of damage was not sought in their Claim filed in this proceeding.
30. On the totality of the evidence summarised in this ruling, I refuse the application of the Claimants for summary judgment. Also on the totality of the evidence as well as the law pertaining to the issue, the application of the First and Second Defendants is allowed. The Claim of the Claimants filed on 4 August 2020 is hereby strike out under r. 9.75 (a) and (b) of the CPR. I order cost against the Claimants.

THE COURT
Justice Maelyn Bird
Puisne Judge