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Success v Premier of Guadalcanal Province, Rima, Attorney-General [2011] SBCA 19; CA-CAC 24 of 2011 (25 November 2011)

JUDGMENT OF THE COURT

[1] In September 1993, the appellant, Success Company Ltd (Success), entered into timber agreements with the trustees for a number of landowners on Guadalcanal. Those agreements followed a timber rights hearing held in August 1993 and their determination was published by the Province in October 1994. In December 1994, a felling licence was issued which was valid until 2004 and, in that year, it was renewed. It appears it was also renewed again to the end of 2010.

[2] The timber agreements commenced variously on 5 or 10 September 1993 and expired after fifteen years in 2008. In that year, the first respondent, Takolu Timber Ltd (Takolu) applied for approval to negotiate timber agreements and a timber rights hearing took place in April 2008. The Province made a determination and published it the same month and, as there was no appeal, a number of timber agreements were entered into by Takolu with the landowners. There was no dispute that the new agreements covered substantially the same areas as those covered by the earlier agreements with Success. A felling licence was also issued to Takolu in October of the same year. The second respondent, Rima Timber Ltd (Rima) is the subcontractor which actually carries out the logging operations.

[3] Success filed a claim on 13 March 2009 seeking a permanent injunction against Takolu and Rima and damages for trespass and conversion of trees and costs. Takolu filed a defence that the agreements between Success and the landowners had come to an end after fifteen years or, in the alternative, had been terminated following notice by the timber owners of a breach by Success of a condition of the agreement that logging had to begin within 12 months of the signing of the timber rights agreements.

[4] The learned judge accepted there had been notice of such a breach in early March 2007 although he accepted it was not given through the Public Solicitor’s office as is required under the legislation. He found that Success was obliged, as a result, to suspend operations in the area “probably on or before 1 April 2007”.

[5] There was evidence that Success tried to renegotiate the agreement to overcome the breach but at a meeting held in March 2007 the landowners resolved that any timber rights agreements with Success should be revoked.

[6] The basis of Success’s claim was that it had a valid felling licence and therefore the issue of a felling licence to the respondent must be an error and gave them no right to enter the land and fell timber. Although it was suggested that was a result of negligence by the present third and fourth respondents, it appears that claim was not pursued. Following a trial, Chetwynd J found that, "In all the circumstances the claimant cannot and does not succeed in any of its claims" and dismissed the claim with costs.

[7] Success has appealed against that decision on three grounds:

1. The trial judge erred in law by not holding that the termination of the timber rights agreements between the appellant and the landowners is valid and lawful even though the majority of those who terminated the timber rights agreement were not the original grantors of timber rights to the appellant.
   
2. The trial judge erred in law by holding that if the majority of the beneficiaries wanted to end the timber rights agreements with the appellant, the trustees or representatives would have to act accordingly.
   
3. The trial judge erred in law in holding that the appellant and the first respondent have equal rights to cut, fell and take away timbers from the concession areas based on the fact that the licence issued to the appellant is not exclusive.
   
4. The trial judge erred in law in holding the licence issued to the appellant was not exclusive.
   

[8] At the appeal, Mr Tagini based his submissions in respect of the first two grounds on the common law doctrine of privity of contract. We do not accept that timber rights agreements in this country are so bound.

[9] The whole concept of group ownership of customary land gives each landowner equal rights over the whole of his clan’s or tribe’s land. Procedures have been established to ascertain the wishes of the members of the land owning group and to identify trustees from their number to sign the timber rights agreement on their behalf. Numerous cases have established the representative nature of those trustees’ duties. The common law concept of privity of contract does not and cannot apply.

[10] The claimant also suggested, and it was little more than a suggestion, that the majority of the trustees who resolved to terminate the agreements between Success and the landowners were not the original trustees as many of the original signatories had died or failed to attend the meeting. We asked him to take the Court to the evidence to support that statement and, although he indicated various documents in the trial book, they fell far short of substantiating his claim.

[11] It is clear the judge had the same problem:

"It is argued that those who purported to "terminate" the agreements could not do so as they were not the original signatories. That argument must fail. Those who originally signed in 1993 did so as representatives or trustees for all landowners. They did not sign as individual legal land owners. The land in question is customary land. It is not land owned in the legal sense by individuals, it is owned by the clan or tribe. That concept in respect of customary land ownership is well settled. Success did not adduce any evidence to show those persons who attended the March 14 meeting were not members of the land owning tribes or clans. Success has not argued that those who attended the meeting and confirmed the revocation or termination of the agreements were in the minority or that the majority of tribal members wanted the agreements to continue. Even if the original signatories were or are all still alive, there is evidence most have subsequently died, they have an obligation to carry out the wishes of the majority of the beneficiaries. If the majority of the tribe wanted to end the agreements the trustees or representatives would have had to have acted accordingly."

[12] We remind counsel that the burden is on the appellant in such appeals to demonstrate his reasons for saying the trial judge was wrong. In this appeal, regrettably, no counsel was able to give the court any assistance in terms of the relevant legal provisions, the procedures in respect of timber rights agreements or any authority to support their various contentions.

[13] At the trial the learned judge analysed the evidence before him and we are satisfied that he was right to reject the submissions of the claimant in respect of the trustees. The first two grounds of appeal fail.

[14] The foundation of the third and fourth grounds was the claimant's case that the First and Second Respondents were trespassing when they entered this land. Success still had a valid felling licence which had been renewed until the end of 2010. It is clear on the evidence before the Court that there were two licences issued covering the same land at the same time. As that issued to the appellant was still valid when a further licence was issued to the respondent, the claimant suggested that such a licence gave the appellant exclusive rights to the timber and the second licence should not have been issued.

[15] The learned judge dealt with this:

"The legislation is clear and there have been a number of decisions which reflect that, before the Commissioner can issue a licence there must be agreement between those who own the timber and whoever has applied for the licence. These are the timber agreements which are referred to above. The authority to carry out logging is "... conferred not by the licence issued by the Commissioner under section 5 (1A) but only by an approved agreement;” Simbe v East Choiseul Area Council [1999] SBCA 9. That means at the time of issuing the licence there must be a valid timber agreement. It seems logical to assume that if a licence is renewed rather than issued there must be a valid timber agreement at the time of renewal. The evidence shows, without doubt, at the time of Success’s renewal of [its licence] in December 2004 there were valid approved agreements in place between Success and those persons determined by the Province in 1993 to be able to grant timber rights. The evidence also shows when Takolu was issued with its licence in 2008 there were valid agreements in place between it and those determined to be able to grant timber rights. For the reasons explained later, there were no valid approved agreements between Success and the "timber owners" when [its licence] was renewed in 2010.

What can also be determined from the legislation and decided cases is, if the authority conferred by the approved agreement is withdrawn or otherwise ceases to exist, the licence on its own cannot supplant the agreement. The licence on its own does not authorise logging."

[16] That was clearly correct and counsel for the appellant has failed to place anything before us to gainsay it.

[17] The contention in the third ground is that the basis for the learned judge’s rejection of the claim for trespass and conversion was a finding that the licences did not give exclusive rights to the holder. The judge considered the issue and pointed out that he could find no support in the legislation for a claim of exclusivity. He did not, however, make any finding on the question. In considering the claims based on the assertion of Success’s exclusive right, it is clear he relied on the need for the licence to be supported by a timber rights agreement as he had previously found. He rejected the claim for trespass and conversion because "Takolu would be able to rely on the licence granted to it and the agreements entered into by it as a defence” to those claims. These grounds also fail.

[18] The learned judge made no finding in respect of the third and fourth defendants and there has been no appeal in respect to them despite their inclusion in the appeal.

[19] We have already commented on the lack of assistance given by counsel to the Court in this appeal. We note that the terms and tone of the judgment suggest that Chetwynd J suffered from a similar problem. We remind counsel that the duty of the parties to a claim in all trial courts is to provide evidence sufficient to prove all the matters they are asserting. That includes being able and ready to assist the court with any relevant law and authorities. If they fail to do so, their case is likely, equally, to fail.

[20] The same principle applies in this Court. We acknowledge the care with which the majority of appeals are now presented to us but must note that it is, unfortunately, not always the case. Counsel who fail adequately to present their appeal or to answer the appellant’s case must understand that their appeal or response is likely to be rejected peremptorily.

[21] The appeal is dismissed. The appellant must pay the cost of both respondents to be assessed if not agreed.

Sir Robin Auld
President

Justice Gordon Ward, JA
Member

Justice Francis Mwanesalua, JA
Member