HIGH COURT OOMON
ISLANDS
Civil Case No. 202 of 1998
FREDA NUMA LEUA
v
K TIMBER CO. LTD
NATHAN KERA
<
High Court of Solomon Islands
Before: Palmer J.
Civil Case No: 202 of 1998
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Hearing: 11th
February 1999
Judgment: 18th
February 1999
dclyffe for the Applicant
/ First Defendant
G. Suri for the Respondent/
Plaintiff
PALMER J.:
This is an application by suby summons filed on 10th November 1998 for
an order to strike out the Plaintiff�s
claim on the grounds that the Plaintiff lacked standing as she
was not a
party to the 1996 Timber Rights Agreement.
THE STATEMENT OF CLAIM:
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The Plai (Freda Numa Leua)
claims she is the owner of customary land stretching from Mare Mare Ibiburu
to Ngadoidaka (also known as �Mare Point�) situated on New Georgia
Island, Western Province. She claims exclusive rights to the said land.
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The significance of Mare the
Point lies in the fact it was and is the site of the First Defendant�s log
pond. From 29th March 1984 when First and Second Defendants
signed the Timber Rights Agreement giving the right to the First Defendant
to acquire timber rights within the concession area, the said area or part
of it, had been used for the period of ten years
(to 1st August
1994) without dispute, as the First Defendant�s log pond.
Pursuant to that timber rights
agreement the Commissioner of Forests had issued a felling licence to the
first Defendant
which expired on 1st August 1994 (see Exhibit
�A� annexed to the affidavit of Michael Lam Filed on
10th November 1998).
On 22nd April 1996, that timber rights agreement was renewed. Up
until time of renewal of that timber rights agreement, no claim or
objection
was raised in respect of Mare log pond. Neither Pegi Silion (deceased) nor
the Plaintiff sought to assert their
rights and claim royalty and in a
dilemma. Who should it deal with regarding the use of the log pond; the
Plaintiff or
the Saikile Council of Chiefs. By letter dated 14th
October 1997 (Exhibit �E� attached to the affidavit of Michael Lam riled
10th November 1998) Chief Nathan Kera assured the Company the
area of land claimed by the Plaintiff did not include the log pond. On 28th
March 1998, the Company entered into a lease agreement with the Saikile
Council of Chiefs for the use of the log pond
(see Exhibit �C� annexed to
the affidavit of Michael Lam riled 10th November 1998).
THE SHIP CLAIM OF THE
PLAINTIFF:
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The Plaintiff�s claim is
derived by customary inheritance from her ded mother Pegi Silion. She She
claims the land was
given to her mother by the Second Defendant (see
paragraphs 3 and 4 of the Amended Statement of Claim Filed
26th January 1999).
It appears she would also be relying on a written document signed by Chief
Nathan Kera (see Exhibit �D� in the affidavit of Michael Lam riled
10th
November 1998) in
support of her claim that Mare Point was owned by Pegi Silion (deceased).
That document however, has been
visly attacked by Chief Nathan Kera as incorrect in his affidaffidavit filed
27th November 1998 (see also affidavits of Harold Teu, Peter
Teu, and Haggai Keraeke filed on the same date). The significance of
that statement nevertheless, would seem to lie in the fact that she would be
arguing it manifests
a right or interest in the said Mare Point which is
arguable or triable.
This leads to the next question
whether this is sufficient to demate an interest in the said said land and
whether the
Plaintiff would have a potential claim against the Second
Defendant in custom for ownership rights over Mare Point? Going on
the
limited evidence before me, it does appear there may possibly be a claim.
However, it would be dependent on what
evidence there was in respect of the
rights acquired by Pegi Silion and the area of the land which was in fact
given
to her by Chief Nathan Kera or the Saikile Council of Chiefs. Note in
the period from 1984 to January of 1997 (some 13 years),
there appears to
have been no claim whatsoever for rent or royalty by Pegi Silion over Mare
Point. The claim for rent
appears to have been a recent one. Even when the
timber rights agreement came up for renewal in 1996, neither Pegi Silion nor
the Plaintiff raised any objections. At the same time she was neither
consulted by the Saikile Council of Chiefs over
the use of the log pond.
That could be construed as indicating something
contrary to what the Plaintiff
claims. If Pegi Silion was recognised as the exclusive owner of Mare Point,
she should
have been notified about it.
THE TIMBER RIGHTS AGREEMENT OF
1996:
It is pertinent to identify the
legal status of this agreement. Were the parties entitled to enter into a
new timber rights
agreement? What happened to the 1984 Timber Rights
Agreement after its expiry in 1994? Should the Company have been required
to
go through the same process it had undergone ten years earlier in acquiring
timber rights?
In my respectful view it would
be nonsensical to require the Company go through the same process again over
exactly the
same land areas it had acquired timber rights over in 1984. The
issue over identification of the landowners (persons) lawfully
entitled to
grant timber rights over the said area of land had already been determined
in 1984 by the Roviana Area Council.
(See and compare the descriptions of
the land areas referred to in both agreements). For instance, the headings
of both
agreements make reference to the same areas of land. I quote:
(1984 Agrt)
�Logging Agreement.
(1996 Agreement)
It is pertinent also to note
e 1996 Agreement made specific reference to the determinatiinations of the
Roviana Area Council
in 1984 in its preamble. I quote:
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�THIS AGREEMENT is made
this 22nd day of April 1996
BETWEEN KALENA TIMBER COMPANY
LIMITED of P O Box 201, Honiara (referred to in this agreement as the
�Company�) of the
one part
AND THE REPRESENTATIVES OR
TRUSTEES OF THDOWNERS of Kalena Land in L in Lots 9 and 12 of LR 529 and
land immediately west
of Lots 9 and 12 extending to Rorosi River in Saikile,
New Georgia who had been identified by the Roviana Area Council in 1984
as the persons entitled to grant timber rights in the said lands and
whose signatures are set out hereunder (referred to in this agreement as the
�Landowners�) of the other part.� [Emphasis
added]
The descriptions referred to
above show quite clearly the new agreement entered ired into in 1996 was in
respect of the
same land areas over which timber rights had been acquired in
1984. There is nothing in the Statement of Claim, or in any affidavit
evidence, or submissions of learned Counsel for the Plaintiff, to suggest
that the 1996 Agreement entered into was in
respect of any new areas of land
and thereby requiring the whole procedure set out in sections 7 and 8 of the
Forest Resources and Timber Utilisation Act 19 (Cap. 40) to be
re-activated. It is not an issue with the First Defendant that the procedure
in sections 7 and 8 were
not complied with. It was never needed. There never
was any need for any timber rights hearing apart from the one in 1984 to
be
held. The issue was not the identification of persons entitled to grant
timber rights, but whether there should be a renewal of the 1984
Agreement.
Indirectly, this disposes of
the argument of the Plainregarding breach of any stay statutory rights she
might have under
the Forest Resources and Timber Utilisation Act
(Cap. 40). There was never any need to comply with sections 7 and 8 of the
said Act as the determinations had already
been done by the Roviana Area
Council in 1984 in respect of the same areas of land.
INTEREST IN THE AGREEMEspan>
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The comments of the Court of
Appeal in the recent case of Gandly Simbe v. East Choiseul Area Council
and Others, CAC No. 8 of 1997judgment delivered on 9th
February 1999 are quite pertinent to this case. I quote at page 15:
�For that, he must begin by
showing an arguably sufficient interest to entitle him at trial to challenge
the validity of
the agreement. Speaking generally, the validity of a
contract may be impugned only by a person who is a party to it. A stranger
is not ordinarily entitled to intervene in or challenge the contractual
arrangements of others unless he or she is directly
affected by them: cf.
Amon v. Raphael Tuck & Sons [1956] 1 Q.B. 357. It is here that the problems
confronting the plaintiff make their presence felt. Possession of land in
the area might
well have amounted to a sufficient interest to invest him
with standing to challenge the validity of the agreement, but it
is conceded
that there is no evidence that he or those he claims to represent are in
possession of any of the land claimed
by him on behalf of the Dali Tribe.
Ownership of the land or an interest in it would probably be enough; but the
determination
of the Area Council was that, for the purpose of entering into
a timber rights agreement, the plaintiff and the Dali people
had no rights
of ownership or interest in the subject land.�
I facts available to this
court in this case, it is clear the Plaintiff did not have pave possession; it
couldn�t have
been if the log pond had been used and occupied by the First
Defendant. On the question of ownership or interest, the least
conceded by
the Second Defendant was that the area of land given to Pegi Silion lie well
outside of the Mare log pond
area.
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If I am to take into account
Exhibit �D� (see affidavit of Michael Lam) (which even in its
present stage is highly contested) the most that can be said is that
there is an arguable matter regarding ownership of Mare Point. That claim of
ownership
however in my respectful view arose well after the 1996 timber
rights agreement had been executed by the First and Second Defendants.
As
well the claim is confined only to Mare Point, not the whole area covered by
the timber rights agreement. As pointed
out also, there had been no
suggestion that Pegi Silion during her lifetime had ever sought to assert
any rights she
might have had over the log pond area. If anything therefore,
her claim should be directed solely against the Second Defendant.
This must
mean whatever interest she might have, though arguable, is not sufficient
for purposes of investing her with
standing to challenge the validity of the
agreement. The appropriate forum to address her grievances or claims would
be under the Local Courts Act (Cap. 19).
th January 1999 that her rights if anything, ultimately
originate from the Second Defendant. It would be relevant therefore for
the
appropriate body to address as well, the situation in custom where the
original title holder denies giving in the
first place the area the
Plaintiff alleges was given, and whether there may be reserve rights in
custom which the original
title holder may be able to exercise in such
circumstances to have the matter corrected.
The answer to the question
therefore whether the Plaintiff had standing to challenge the validity of
the 1996 Agreement
in my respectful view must be answered in the negative.
ORDERS OF THE COURT. span>
1. STRIKE OUT THE PLAINTIFF�S
CLAIM AS ST THE FIRST DEFENDANT.
