Hori v Sonic Phase (SI) Co Ltd [2024] SBHC 98; HCSI-CC 661 of 2020 (9 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hori v Sonic Phase (SI) Co. Ltd
Citation:
Date of decision:	9 September 2024
Parties:	John Hori v Sonic Phase (SI) Company Limited, Iruhau Resources Development Company Limited
Date of hearing:	26 July, 19 August and 2 September 2024
Court file number(s):	661 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. There is judgment for the First and Second Defendants. 2. The Claimant is to pay the costs of the First and Second Defendants on the standard basis.
Representation:	Ms R Danitofea for the Claimant Mr B Kaehuna for the First and Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act S 17, S 39
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 661 of 2020

BETWEEN

JOHN HORI
Claimant

AND:

SONIC PHASE (SI) COMPANY LIMITED
First Defendant

AND:

IRUHAU RESOURCES DEVELOPMENT COMPANY LIMITED
Second Defendant

Date of Hearing: 26 July. 19 August and 2 September 2024
Date of Judgment: 9 September 2024

Ms R Danitofea for the Claimant
Mr B Kaehuna for the First and Second Defendant

Lawry; PJ

JUDGMENT

1. The Claimant has brought a claim in his own name and as a representative of Airawaro Customary Land owners. The Second Defendant is the holder of felling licence A 10853 authorising the commercial logging of land which included Airawaro. The First Defendant is a contractor engaged by the Second Defendant.
2. The Claim after the notice to the Defendants provides as follows:
   • “The Claimant seeks the following relief:
   1. An order for damages against the First and Second Defendants in the sum of $1,401,065.74;
   2. An order that the First and Second Defendants are jointly or severally liable to pay the amount claimed in order 1 above;
   3. Costs of and incidental to this proceeding on indemnity basis;
   4. Any other orders as deems fit by the Court.”
3. As set out there is no cause of action pleaded at all. There is a claim for damages but no basis for damages is set out. The statement of case is set out below:
   • “1. The Claimant is an adult Solomon Islander and the Chief (Legal trustee) of Airawaro Tribe, the owners of Airawaro customary land and can sue or be sued.
   1. The First Defendant is a company incorporated under the Companies Act 2009 and its main business is in the Forestry sector.
   2. The Second Defendant is a company incorporated under the companies Act 2009 and its main business is in the forestry sector.
   3. The First Defendant was the then contractor engaged by the Second Defendant to operate under its felling license No. A10853
   4. The Second Defendant’s felling license covered the following customary lands in West Are’are, Malaita Province;
      1. Maruirao ix. Aipuru (b)
      2. Haitanahuru x. Naripari
      3. Tetere xi. Rara
      4. Marumaru xii. Tora’apu
      5. Parapaisuna xiii. Poiraimae
      6. Airawaro xiv. Akaniu
      7. Paiatori xv. Hausuhu
      8. Nariori xvi. Noroao
   5. That the Defendants sometimes in October 2010 entered and began harvesting trees in Airawaro customary land.
   6. Also sometimes in October 2010 an injunction was obtained against the Defendants in civil case 297 of 2010 in relation to their then log pond.
   7. Sometimes on or about the 8 of November 2011 the injunction orders against the Defendants to export the logs already felled within their concessions.
   8. Despite the variation, the logs that were felled within Airawaro customary land were not taken for export and were left in the bush until the Second Defendant left the operations.
   9. By the beginning of 2011 the Claimant started to follow up with the Defendants and the Commissioner of Forests regarding the logs left by the First Defendant.
   10. On or around 23 to the 24^th of June 2011 a forestry assessment was carried out which confirmed that 187 pieces of logs with a gross volume of 1, 014.624 cubic meters were felled and left to rot in Airawaro customary land by the Defendants.
   11. In 2012 the Claimant continued his follow-ups with the relevant authorities and the First and Second Defendants as to the logs that were left to rot in their land.
   12. Sometimes on or about 3^rd March 2014 the Commissioner of Forests authorised the release of the performance bond for the Second Defendant’s felling license A10853 in the sum of $250,000.00.
   13. The $250,000.00 was for part settlement of the $1,651,065.79, the actual value of the 187 pieces of logs that were harvested in Airawaro customary land by the Defendants.
   14. After the payment was made to the landowners in 2014, the Claimant continued to follow up with the First and Second Defendants in regard of the outstanding balance of the logs harvested from their land which were left to rot in the bush.
   15. The Claimant made numerous follow-ups since the payment in 2014 with the First and Second Defendant and up to the filing of the claim, the Defendants neglected, failed and or refused to pay the remaining balance in the sum of $1,401,065.74 for damages caused to the Claimant and his tribe.
   16. In the premises the Claimants are entitled to the relief set out above.”
4. The reason for setting out the claim in full is because the Defendants submit that the claim is statute barred by section 5 of the Limitation Act which provides:
   • “5. Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of six years from the date on which the cause of action accrued.”
5. Counsel for the Claimant then relied on section 17 of the Limitation Act and submitted that the cause of action is founded on a continuing wrong. Section 17 provides:
   • “17. Subject to the other provisions of this Act, a cause of action shall be deemed to accrue on the date on which the right to relief sought by an action first arises:
   • Provided that where the cause of action is founded on a continuing wrong, a fresh cause of action shall be deemed to accrue on each day the wrong continues.”
6. In closing submission counsel submitted that as the cause of action alleged a continuing wrong and the Claimant had sought redress up till two months prior to filing the claim that the claim could not be said to be out of time. Before returning to what the cause of action may be it is necessary to summarise the facts which largely are not in dispute.
7. The Defendants allege that they carried out logging on Airawaro customary land in accordance with felling licence A10853 in 2010. In order to export the logs, the Defendants commenced using an access road to a log pond. The log pond and access to the log pond were on Apaniasi land. On 26 October 2010 in a separate proceeding in this Court in CCN 297 of 2010, the Court granted an injunction brought by the landowners of Apaniasi land. This prevented the Defendants from accessing the log pond in order to export the logs. In evidence the Court heard that five attempts were made with the Claimants in CCN 297 of 2010 to allow the Defendants to move the logs to the log pond for export. Those attempts were not successful. Applications were brought to vary the injunction but they were refused until 8 November 2011 when the order was varied to allow the removal of the logs. In an assessment carried out in 2011 there had been an estimated 187 trees felled.
8. By that time the logging equipment had been moved out of the area. The logs were left in the bush and the Court understands that as a result of being left for more than a year the logs had deteriorated.
9. The Claimant sought damages assessed initially at $1,651,065.74 but that was reduced by $250,000.00 as the Commissioner for Forests released the performance bond to the Claimants. That bond had been provided to ensure compliances with Defendants obligations to the Government. It has not been explained on what legal basis had been released to the Claimant.
10. Counsel for the Claimant said that $1,651,065.74 represented the total value of the logs. It has also not been explained why the Claimant would have been entitled to this since as the felling licence would limit any loss to the royalty payments for a landowner who had agreed to transfer their timber rights. The amount of be paid to the Government for duties would account for 40% of that amount.
11. It is not disputed that the logs were left to rot. No evidence has been put forward to show how the Claimant has mitigated any loss (for example arranging with another contractor to remove the logs).
12. What then is the cause of action? Counsel for the Claimant said that the felling licence required the logs to be exported within three months of being felled. The licence is between the Government and the licencee and cannot be relied on by the Claimant as the basis for a claim. He would have no standing to do so in relation to the licence. The claim does not allege any cause of action. There is no allegation of a breach of contract or a tort committed against the Claimant. If what is alleged is that having felled the trees the logs should have been taken to export within a reasonable period of time then the time for the Limitation Act would run from the time the Defendants failed to do so. The claim does not allege any such duty on the part of the Defendants. If it had the claim filed some 10 years after the trees were felled is clearly out of time. This could not be described as a continuing cause of action. This is because it has not been pleaded as such and even if it had on the evidence before the Court it would not be a continuing cause of action.
13. Although this Court heard from the Claimant who was cross examined. The most significant evidence from him was that he was aware of the issues relating to the prevention of removing the logs and had the knowledge of the assessment report when it was released in 2011.
14. It is not necessary to canvass the remaining evidence which largely is not in dispute. Of concern is the absence of evidence about any timber rights agreement. None is disclosed in the Claimant’s list of documents. The Defence position is that there are three clans who are the landowners of the land in question.
15. The effect of the conclusions I have come to is that no cause of action has been pleaded. As a result the claim cannot succeed. Even if a cause of action had been pleaded I accept that on the evidence before me the time for commencing the claim must have expired in 2017 three years before the action was commenced.
16. There has been no plea to extend the time for filing the claim under section 39 of the Limitation Act. Accordingly even if there had been a cause of action the time for commencing the action had passed and as such the claim is statute barred. Had the Defendants sought to have the $250,000.00 returned to them the Court would have been bound to do so but they did not make such a claim and are now also out of time for doing so.

Orders

1. There is judgment for the First and Second Defendants.
2. The Claimant is to pay the costs of the First and Second Defendants on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge