CIVIL CASE NO: 056 OF 1999
ISABEL TIMBER COMPANY LIMITED
-V-
EASTERN DEVELOPMENT ENTERPRISES LIMITED
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HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CIVIL CASE NO: 056 OF 1999
HEARING: 19TH APRIL, 1999
RULING: 13TH MAY 1999
G. SURI FOR THE APPLICANT/DEFENDANT
P. TEGAVOTA FOR THE RESPONDENT/PLAINTIFF
PALMER J.: This is a application by amended summons filed 10th March 1999 for orders to strike
out the the Plaintiffs claim on the
grounds it lacks locus standi
to bring this action. Two reasons are given why the claim should be struck
out. First, the Defendant argues the Plaintiff
does not have any or valid
Timber Rights Agreement over Paehena Land described as LR 673 (from Varagia
to Pigi) and part
of LR 674 (from Pigi to West Bank of Fufuana River).
Secondly, or in the alternative it argues the licence of the Plaintiff
TIM
2/32 does not cover the said Paehena Land.
SUBMISSIONS OF THE APPLICANT - (1) VALID TIMBER RIGHTS
AGREEMENT.
The approach taken by the Applicant is to attac
validity of the timber rights agreement on a number of grounds. In brief,
thes these are as follows.
(i) &nbbsp;& bsp; that the Form I Application ison issued on or
about 31st December 1990 (see annexure &qT4 and DT5") did not
include the Etingi Clan, which it claims was the correct lact landowner
of Pahena
Land.
(ii) & Pahena was wr ngly describscribed and considered
as coming within the jurisdiction of the Kia/Katova Area Council
when in
reality it came within the Havulei/Kokota Area Council.
(iii) p; The Form I application did not comply with
section 7 of the Fore Forest Resources and Timber Utilisation Act [Cap. 40] in
that it did not state correctly and truthfully the particulars to be filled
in.
Forest Resources and Timber Utilisation Act and therefore its proceedings
were a nullity in respect of Pahena Land.
(v) &nbbsp;& Tsp; That that there was a delay in the commenc of
operations pursuaursuant to the timber rights agreement issued
on 21st July 1991,
which was fatal to the validity of Timbehts Aent, tht, that
at
logging operations be commenced wced
within six months of date of issue of
licence.
(vi) &nnbsp; That that the Timbeh Riggrs Agreement signed on or
about 21st July 1991 was invalid by virtue of the letters
of revocation
issued by persons entitled to grant timber rights over the said land; namely Johhoru and Elsie Koie Koitokeitoke.
(vii) That there were irregularities in the ct
of the timber rightrights hearings such that it rendered the issue of the
timber
rights agreement a nullity and subsequ the ce alnullispan>
(II)
The grounds relied on can be summarised as follows.
Firstly, that foot note (1) restricts logging operations to areas only where
there is no dispute. Mr Suri submits because there is dispute over Pahena
Land it is automatically excluded from the
licence.
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Secondly, if the timber rights agreement is found to be
invalid, the licence should also be invalidated.
Thirdly, it is argued there was evi which showed
that a licence had already been issued in respect of Pahena Land.
THE PLAINTIFFS ARGUMENTS
>
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Mr Tegavota for the Plaintiff argues the focus in this
application is locus standi; whether laintiff has any standing
ing
to take up this case. He points out there are many issues for this court to
address.
These include issues pertaining to the timber rights agreement,
such as whether the Plaintiff had complied with the procedures
set out in
the Forest Resources and Timber Utilisation Act, its validity and also
whether the licence issued is valid or not. Mr Tegavota submits the matters
referred to by Mr
Suri are the very matters which would be addressed by the
court in trial.
He also points out that them of the Plaintiff is
that they have exclusive right to log the said area by virtue otue of the licence
which they hold.
THE LAW.
The law on standing originates front the position that
remedies are availonly to those whose rights have been affected. In
oth other words, no rights no remedies. Its development has gained momentum in
issues pertaining to public law where
public interest and private rights
have been affected. The courts have developed guidelines in that regard to
ensure
hopeless or meddlesome applications are weeded out. The test adopted
initially was that of "persons aggrieved" that is, a person whose
legal right has been affected (see Sidebotham [1880] UKLawRpCh 148; [1880] 14 Ch. D.
458 and Buxton v. Minister of Housing [1960] 3 All E.R. 408
referred to by his Lordship Muria ACJ, as he then was, in Ronald Ziru v.
Attorney-General Civil Case No. 21 of 1993, judgment delivered on 1st
March 1993). The courts in the United Kingdom however have liberalised
this test of "sufficient interest". In Kenilorea v. Attorney-General
(1983) SILR 61, the term "sufficient interest" was thoroughly canvassed by
his Lordship Daly C.J. in relation
to rights of a person to bring action
under section 83 of the Constitution of Solomon Islands. I find his
references
to the case of R. v. I.R.C. Ex-parte Federation of Self
Employed (1980) 2 W.L.R. 579, in particular, the comments of Lord
Denning and Lord Ackner in the Court of Appeal, and Lord Diplock in the
House of
Lords (referred to at page 68 of the S.I. Law Reports (1983) to be
very helpful. The same was adopted and applied by his Lordship
Muria C.J. in
Ronald Ziru v. Attorney-General (ibid).
That would have also been the appropriate test to be
pplied in this case had that been relevant. Unfortunately. the application
to strike rike out on the grounds of locus standi is premature and
misdirected. It has not been done in conformity to the High Court (Civil
Procedure) Rules, 1964, which
apply to the conduct of this case and how it
is to be dealt with. It must be borne in mind this is an action that had
been commenced by Writ of Summons and Statement of Claim filed on 17th
February 1999. The appropriate provisions therefore
for striking out are to
be found in Order 27 Rule 4 in particular. Rule 4 provides:
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"The Court m>order
any pleading to be struck out, on the ground tund that it discloses no reasonable
cause of action or answer and
in any such case or in case of the action or
defence being shown by the pleadings to be frivolous or vexatious, the Court
may order the action to be stayed or dismissed or judgment to be entered as
may be just."
Note also Rule 4 of Order 21 which provides that:
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1">
"Pleading shall contain, and contain only a statemn
a summary form of the material facts on which the pthe party pleading
relies for
his claim of defence, as the case may be, but not the evidence by which they
are to be proved, �"
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Rules 2 and 3 of Order 27 in turn provide for the
situation which learned Counsel for the Defendn this action must have
e
contemplated when filing this summons, prematurely for striking out. The
rules provide:
"2. Any party shall titled to raise by his
pleading any point of law andw and any points so
raised shall be disposed of by the Court at or after the trial, provided
that by consent
of the parties or by Court on the application of either
party, the same may be set down for hearing and disposed of at any
time
before the trial.
3. If,n the opinion
of the Court the decision of such pointpoint of law substantially disposes of the
whole action, or any distinct
cause of action, ground of defence, set-off,
counterclaim, or reply therein, the Court may thereupon dismiss the action
or make such other order therein as may be just."
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Note the cause of action in this claim is that, inter
alia, of trespass. Rule 4 of Order 21 res that a pleading must
st
contain the material facts on which a party relies for his claim
to remedy
or relief. Matters of evidence or law are not to be included.
In paragraphs 3 and 4 of the Statement of Claim the
following material facts were pleaded:
"3. The plaintiff holds a current timber rights licence
over area of land situate on Isabel island in the Isabel Provinrovince
known
as L.R. 673("concession"- the licence ence number is r is TIM 2/32).
4. Without the consent or permission of the plaintiff the
defendant moved its logging equipment and machinery into and trespassed
onto
the said concession and has commenced logging operations."
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The above material facts on the face of it would appear
to be more than sufficient to enable the Dent to file a defence to theo
the
claims of inter alia, trespass of the Plaintiff. On the other hand,
if the Defendant considers this to be insufficient to enable it to file
defence, the Rules provide for this to be done under Rule 9 of Order 21. No
defence his been filed by the defendant. Instead
the defendant had sought to
have the claim of the Plaintiff struck out on the ground of locus standi
when such application
according to Rules of Court is irregular and
inappropriate and therefore should be dismissed. I am satisfied accordingly
the only proper order in the circumstances is to dismiss this summons with
costs and to direct that the Defendant file
defence within 14 days.
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ORDERS OF THE COURT:
nbsp;
1. DISMISS AMENDED SUMMONS FILED ON 10th FEBRUARY
1999.
2. THE PLAINTIFF TO HAVE HIS CIN THIS
APPLICATION.
THE COURT
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