Siota v Galego Resources Ltd [2016] SBMC 5; Civil Case 192 of 2015 (24 March 2016)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case No. 192 of 2015

IN THE MATTER OF: APPEAL BY PERSONS CLAIMING INTEREST IN THE PROCEEDS DERIVED FROM THE SALE OF THE SEIZED PROPERTIES PURSUANT TO SECTION 37 OF THE FOREST RESOURCES AND TIMBERUTILISATION ACT [CAP.40] AS AMENDED

BETWEEN: JERRY SIOTA 1^ST APPELLANT

(Representing Lodusapeo Tribe or landowners)

AND: GALEGO RESOURCES LIMITED 2^ND APPELLANT

AND: COMMISSIONER OF FORESTS
(Represented by the Attorney General) RESPONDENT

Date of Hearing: 18^th March 2016
Date of Ruling: 24^th March 2016

Mr. Philip Tegavota for the 1^st and 2^nd Appellants
Ms. Lavinia Fineagnanofo for the Respondent

JUDGEMENT

1. This matter arose from the action of the Commissioner of Forest seizing 2,500 cubic meters of tubi logs under its power conferred by section 33 of the Forest Resources and Timber Utilisation Act [Cap 40] “FRTU”as amended. The logs were already exportedand proceeds from the sale were retained at the Central Bank of Solomon Islands [CBSI].
   
2. The 1^stAppellant represents the Lodusapeo tribe being the landowning group in Isabel Province.
   
3. The 2^ndAppellant is a contractor licensed to carry out logging operations over Lodusapeo customary land in Isabel Province.
   
4. Having aggrieved by the vesting of the total proceeds of the export of the tubi logs on the Commissioner of Forest under section 37 of the saidFRTU Act, the Appellants appeal against that decision of the Commissioner of Forest.The grounds of appeal were outlined in the amended notice of appeal filed on 10^th of August 2015. Hence, it is needless for me to restate them again.
   
5. The chronology of the facts outlinedin the Respondent’swritten submission appears to be the true events of this case. I will adopt them including some of the additional facts as follows:
   
   • (a) Pacific Logging is the holder of felling license A101206. The felling license was issued on the 20October 2012 and will expire on the 26 October 2017.
     
   • (b) The felling licence covers Lodusapeo customary land and Fafara customary land in Isabel Province.
     
   • (c) On 6 March 2013, Pacific Logging Company entered into a Logging and Marketing Agreement with Galego (SI) Resources Company (2^nd Appellant) to undertake the technology and marketing functions of Pacific Logging Company under its felling license A101206 over Lodusapeo customary land in Isabel.
     
   • (d) On 7 March 2013, approval was granted by the Ministry of Forestry authorising Gallego (SI) Limited to be the contractor authorised to carry out harvesting and marketing functions under the felling license A101206.
     
   • (e) During the operation, the 2^ndAppellant felled, extracted and intended to export the tubi logs which are protected under the Forest Resources and Timber Utilisation (Protected Species) Regulation 2012. Tubi is a protected species and currently is prohibited from export unless authorised under the legislation called Wildlife Protection and Management Act 1998.
     
   • (f) By letter dated 27 May 2015, the Commissioner of Forest seized 2,500 cubic meters of tubi logs illegally felled by the 2^ndAppellant from Lodusapeo customary land.
     
   • (g) On 28 May 2015, the Commissioner of Forest directed Bulacan International (SI) Company Limited to sell the tubi logs on behalf of the State. That Order for sale included conditions whichBulacan must comply with before exporting of the tubi logs. An export permit FD No. 378/2015 was given to Bulacan for the export of those tubi logs.
     
   • (h) By letter dated 22 June 2015, the Director of Environment and Conservation granted permission to Bulacan International (SI) Company Limited to export the tubi logs pursuant to section 18 of the Wildlife Protection and Management Act 1998.
     
   • (i) Subsequently, the tubi logs were exported.
     
   • (j) On 12 August 2015, a payment of $1, 827,178.78 by bank cheque was made by Winlex International to Solomon Islands Government. That is the proceeds of the sale of the tubi logs and is currently vested on the Commissioner of Forest under section 37 of the Forest Resources and Timber Utilisation Act.
     
   • (k) The 1^st and 2^nd Appellantsare not charged with any offence from this illegal felling of the tubi logs although it was believed that a forest offence was committed under the said Forestry legislation.
     

Issue for Determination

6. The issue for determination in this appeal is whether this Court should allow any of the Appellants who admitted felling the tubitrees in contravention of regulation 3 of the Forest Resources and Timber Utilisation (Protected Species) Regulationto claim and benefit from the proceeds derived from the export of the tubi logs.
   

Court’s Assessment

7. For this appeal, there is no evidence on oath. Counsels only relied on their respective written submissions and other supporting documents tendered in Court.
   
8. There is no dispute that the tubi trees were felled by the 2^nd Appellant on the authority of the 1^st Appellant. Further, there is no dispute that tubi is a protected species and is currently prohibited from sale or export except for scientific research purposes.
   
9. A plain reading of Regulation 3 of the Forest Resources and Timber Utilisation (Protected Species) Regulation clearly stated that it is a protected species and shall not be felled or removed from any land for purposes of sale or export, except for except for scientific research purposes as authorised by the Wildlife Protection and Management Act 1998. Therefore, it means that it is not commercial in nature and should not be subject to any felling or any logging activity for economic gains.
   
10. Counsel for the Appellants submitted that the Appellants are not charged with any offence under the Forestry legislation and therefore, they are entitled to the proceeds of the sale of the tubi logs.
    
11. However, the 2^nd Appellanthas tacitly admitted its own illegal action of felling the tubi trees upon the authorisation of the 1^stAppellant. In other words, both of them are at fault. That admission of their illegal activity in my view is sufficient ground for the commission of the alleged offence as required under section 33 (3) of the FRTU Act. Does that make any difference in terms of their innocence if they are to be prosecuted? Without prejudicing it, my view is that the answer will be no.
    
12. The application of section 37 of the FRTU Act in relation to facts of this case has to be carefully considered. I am mindful that this case is not one which is followed by a conviction for forfeiture of the proceeds but a determination of the claim over the properties which already in the form of proceeds seized under section 33 of the FRTU Act.
    
13. This is a case where the Appellants try to enrich or reward themselves from felling of the tubi tress being the protected species in our country. Despite the tubi trees are from the Lodusapeo customary land and at all times, the 1^st Appellant and his tribe had propriety interest of them, the question for the Court is not so much on the ownership over those tubi logs but whether this Court should lent its aid to the Appellants who have admitted felling the tubi logs in contravention of regulation 3 of the Forest Resources and Timber Utilisation (Protected Species) Regulation.
    
14. In the case of Knight v Attorney General,^[1] this issue was explained and well settled.That case involves a claim for ownership over quantity of golds retained by a Magistrates’ Court Order following the claimant’s conviction for purchasing golds without license. In that case, Palmer CJ when deciding in favour of the respondent referred to common law cases of Holman v Johnson^[2] and Bowmakers Ltd v BarnetInstruments Ltd^[3]and made these remarks“No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act...”^[4] The Court based its decision on the principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct.
    
15. This principle was further confirmedin the Court of Appeal case of K’Clay v Attorney General.^[5] In that case, the appellants had harvested beche-de-mer for sale during a period when it was banned under Regulation 13A of the Fisheries Act 1998. Those marine products were eventually seized. The appellants brought the case in the High Court claiming ownership of thosebeche-de-mer based on their customary ownership of that area and therefore they had the right to harvest them. The trial Court ruled against them and referred to the case of In re arbitration between Mahmoud and Ispahani^[6], George v Greater Adelaide Land Development Co Ltd^[7], and Knight v Attorney General^[8] to support its decision. In rejecting the claim, Apaniai J, as he was then concluded“Applying these principles to the present case, it is clear that this Court cannot entertain the claim which is founded on illegal acts by the respondents and the communities they represent.” The matter went up to the Court of Appeal and was dismissed. The Court of Appeal upheld the decision and the affirmed the principles reached by the High Court in relation to this issue of whether the court should lend its aid to a man who founds his cause of action upon an immoral or illegal act.
    
16. For cases involving felling of protected species or any product that is prohibited by a regulation or Act of parliament, the same principle applies. Hence, I adopt them in my ruling. To allow any persons to be rewarded from an illegal act would set a bad precedence for future like cases. Not only that but it would indirectly encourage rural people and contractors or developers to continue harvest or fell this protected species for economic reasons knowing that at the end of the day, they will still benefit from the sale of those properties even if seized by the relevant authorities. In a practical sense, the harvesting of the protected species will continue to thrive, the prohibition imposed by the legislation for not harvesting the protected species will continue to be undermined and it willbe seen as making a mockery to the prohibition impose under the Regulation for the harvesting of this protected species.
    
17. I am also mindful of the conventional practice in this jurisdiction that the party who incur expenses in carrying out the felling of the logs is entitled to claim the expenses.^[9] However, that principle is only applicable for cases that involve harvesting of forest products that are commercialised by legislation and disputes that arise from those operations. That differentiates the facts of this case and its uniqueness to other ordinary logging cases and how the Courts should carefully approach this case especially with forest products that protected under the legislation.
    
18. Having reached this finding, I am not satisfied on the balance of probabilities that the 1^st and 2^nd Appellants should entitle to the proceeds derived from the export of the tubi logs seized by the Commissioner of Forest and therefore, this appeal is dismissed.
    
19. It follows therefore that all the proceeds derived from the export of the tubi logs currently kept at the CBSI to be vested in the Crown.
    
20. Parties to bear their own costs.
    
21. Either Appellant has a right to appeal this judgement to the High Court.
    

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THE COURT

Augustine Aulanga - PM

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^[1] [2005] SBHC 6-CC 349 of 2004 (6 May 2005)
^[2] (1775) 1 Cowp 341, 343
^[3] (1945) K.B. 65
^[4] At page 1
^[5] [2014] SBCA; SICOA-CAC 09 of 2014
^[6] [1921] 2 KB 716
^[7] [1929] 43 CLR 91
^[8] [2005] SBHC 6
^[9]Logaboe v Lezutuni HCSI-CC No. 102 of 1994