In the meantime, the Plaintiffs
were able to obtain restra orders against the Defendant on 26th
Sept September 2000 pending the resolution of the Plaintiffs� claim against the
Defendant. On
3rd
>October
2000, the Defendant filed a Notice of Motion seeking orders against the
Plaintiffs. The Defendant�s Notice of
Motion came e me on 13th
>
December 2000. The Plaintiffs nor their Solicitor Mrs. Samuel, were present
in Court.
Cl for the Defendant , Mr.
Suri, however told me that Mrs. Samuel was down with nbsp;malard so was
un unable to come
to court. On the basis that Counsel for the Defendant, Mr.
Suri, was not sure of Mrs. Samuel�s attitude on the restrainrders
against the Defendant, he applied for the stay stay of the restraining orders
pending the hearing of the Defendant�s
Notice of Motion. I granted the
staying Order on 16th October 2000. By Notice of Motion filed on
20th December 2000, the Plaintiffs sought the relisting of the
Defendant�s Notice of Motion or in the alternative, the Defendant�s
Notice
of Motion be treated as the inter
partes hearing of the dispute. The
Defendant�s Notice of Motion came before me on 24th January 2001.
I adjourned the hearing to a date to be fixed by the Registrar of the High
Court. Further hearing took
place on 12th and 13th of
February, 2001 and 21st, 22nd and 27th June
2001.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The DefendaNotice of Motion
In its Notice of Motion, the
Defendant seeks to set aside the ex
parte orders made by the Court on 26th
September 2000. The grounds supporting the application are in paragraph 1-6
set out in that Notice of Motion. Further
orders are sought in paragraphs
7-10 of that Motion. The Plaintiffs� Notice of Motion filed on 20th
December 2000 has not been st down for hearing. It would appear that by
relisting the Defendant�s Notice of Motion for
hearing commencing on 12th
February 2001, the Plaintiffs� Notice Motion would no longer serve any
useful purpose and so it simply lies in the file.
It has not been withdrawn.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Facts
On 10th January 1990,
a Timber Rights Agreemas signed between the Defendant and the Trustees
for for the Haforai, Irureqo, Ozileqo,
Qai, Tive, Teborana, Hiriro and Oreasi
Tribes on Rendova Island in the Western Province. As a result of this
Agreemehe
Commissioner for for Forest Resources on behalf of the
Government, issued a felling Licence in the name of the Defendant.
This
pan style="font-size:12.0pt">Licence was to cover all the areas of land set out in the Timber Rights
Agreement. The Licence was issued on 17th December 1991 and
numbered TIM2/25 expiring on 7th December 2001 in accordance with
the terms of the Timber Rights Agreement. The Plaintiffs were not at the
Timber Rights
Hearing conducted by the Rendova Area Council on 11th,
12th ,13th and 14th April, 1989 to
determine who were the persons lawfully entitled to grant timber rights to
the Defendant. The Plaintiffs
later discovered that Harero Land which they
claim to be theirs had been included in the Timber Rights Agreement without
their authority.
The Plaintiffs Case
The Plaintiffs� are the descendant�s of a woman called Ide, the daughter of Ziqe a woman from Hiriro
Tribe. ibe. The husband
of Ziqe was Qazo frrero Tirbe. Qazo died fied first.
Ziqe committed suicide by hanging herself in her state of sorrow for
the
death of usband, Qaso. The manner in which Ziqe met her death caused
Harero land to be given tven to Hiriro Tribe
through Ziqe. The Plaintiffs claim
ownership of Harero Land through Ziqe whose line was given Harero land for
her death.
The fact that Harero Land was not included in Form 1 made it
unnecessary for the Plaintiffs; to attend the Timber Rights Hearing
conducted by the Rendova Area Council in April, 1989. The fact that Harero
Land was included under the Timber Rights
Agreement under Teborana was a
mistake. The Defendant is therefore trespassing upon Harero Land and
unlawfully felling
trees thereon.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Defendant�s Case
The trustees for Teborana Land
are Henry Seda, Mathew Alepio, Nathan Alepitu, Jabele, Bension James
and Kerepi Soza.
The trustee who signed the Timbers Rights Agreement on
behalf of the Teborana Tribe was Henry Seda. The effect of the evidence
adduced on behalf of the Defendant is that Harero Land is in fact Teborana
Land. The Teborana Tribe comprised six clans
one of which is Harero Clan to
which the Plaintiffs belong. For them, their representatives at the Timber
Rights Hearing
in April 1989, were the trustees identified for the Teborana
Land. For the Harero Clan, Mathew Alepitu was their representative
at the
Timber Rights Hearing above.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Evidence
The starting point is form 1
(see page 40 of the Laws of Solomon Islands, Revised Edition 1996, volume
11). No copy of
the Form 1 with the necessary information filled in was
produced in Court. However, the Minutes of the Rendova Area Council
Hearing
seemed to show that the Defendant�s Application was for the whole of Rendova
excluding Ughele and Razo. The list
of persons entitled to grant timber
rights and the land areas they represented did not include the Plaintiffs
nor Harero
as one of the land areas to be considered by the Rendova Area
Council. Mathew Alepio gave sworn evidence at the Area Council
Hearing to
show he was a member of the Teborana Tribe. All the trustees for Teborana
Tribe did likewise. None of them
said anything about the Plaintiffs nor
mentioned the Harero Tribe.
There is no evidence to show
at Mathew Alepio had informed the Plaintiffs that he had represented them
at the Rend Rendova
Area Council Hearing. There appeared to be a reason for this
silence. Wilson reason for this silence. Wilson Kera, the son
of Mathew
Alepio, in his affidavit filed on 6th November denied that the
Plaintiffs were members of the Harero Tribe. He said this was so because
Qazo, the husband of
Ziqe, was a man form the Qai Tribe and not the Harero
Tribe. He said he was the Chief of both Hiriro and Harero Tribes. Leban
Sasa
of the Ozileqo Tribe in his affidavit filed on 11th October 2000
denied that the Plaintiffs were of the Harero Clan but were members of the
Hiriro Tribe. Mark Qaqa of the
Qai Tribe in his affidavit filed on 9th
October 2000 said that the Qai Tribe shared common boundaries with the
Harero Tribe. In re �examination by Counsel for
the Plaintiffs, Mrs, Samuel,
Mark Qaqa said Teborana Tribe and Harero Tribe were separate Tribes. He also
said that Qazo
was a man from the Qai Tribe as well as from the Harero
Tribe. There is therefore conflict in the evidence.
The Issue
<
Despite the vast amount of
evidence produced by way of affidavits ral evidence by the deponenponents of
the affidavits,
the issue in this application is simple. The issue is
whether or not the ex
parte order made on 26th September 2000
should be discharged upon the grounds set out in the Defendant�s Notice of
Motion. However, the amount
of evidence adduced in this Court went as far as
covering also the triable issues disclosed by the Writ of Summons, the
Statement of Claim and the affidavit evidence presented at the ex
parte
hearing on 22nd September 2000. In other words, the hearing of
the Defendant�s Notice of Motion almost assumed the character of inter
partes
hearing of the Plaintiff�s action. However, it was not the hearing of the
Plaintiffs� action. However, paragraph 1 of
the Defendant�s Notice of Motion
does raise the issue of the validity of the Timber Rights Agreement and the
Licence
issued upon the basis of that Agreement. Paragraph 2 raises the
issue of whether or not the Plaintiff�s are the owners of Harero
land.
Paragraph 3-6 whave have been arguments advanced against the granting of an
ex
parte order had the Defendaen given notice and attendetended the ex
parte
hearing on 22nd September 2000. Despite the rather wide scope of
paragraphs 1-6 in the Defendant�s Notice of Motion, I must restrict my
attention to the over-riding intention of that Motion being the setting
aside of the ex
parte order dated 26th September 2000. I believe I
am correct in holding this view because Counsel for the Defendant, Mr. Suri,
in his written
submission filed on 3rd July 2001, took that same
position in his introductory remarks in his submission. Counsel for the
Plaintiffs Mrs. Samuel,
in her written submission, filed that same day as
that by Mr. Suri also confirmed that same position.
Determination of the issue
The ex parte order mder made on 26th
September 2000 was for the purpose of keeping the status quo pending the
resolution of the dispute between the parties.
This ex
parte order was stayed
by default of appearance in Court by the Plaintiff on 13th
October 2000. The staying order was dated 16th October 2000. The
effect of the staying order is that the Defendant was free to fell and
remove timber from Harero land
for the last eight or so months, quite
contrary, I take it, to the wish of the Plaintiffs. In the meantime, the
matter
dragged on and the staying order remained effective against the
interest of the Plaintiffs. The whole purpose of the ex
parte order made on
26th September 2000 was being defeated by the staying order which
had remained unchallenged by the Plaintiffs. It is now ten months
since the
Plaintiffs filed their Writ of Summons and Statement of Claim and the
parties are still fighting over the interim
ex
parte order made on 26th
September 2000. This state of affairs, in my view, is undesirable to say the
least. The Plaintiffs� action seemed to
have forgotten by their Solicitor.
The Defendant filed its defence on 22nd January 2001 though out
of time and without first entering an appearance. Nevertheless the
Plaintiffs� have not filed
a reply and by now I would assume they do not
wish to do so. The Plaintiffs should have taken out a Summons for directions
long ago but again they have not done so. The Plaintiffs� action is
therefore delayed. Now they would like the ex
parte order made on 26th
September 2000 to continue whilst doing very little or nothing at all in the
progress of their action. The Defendant,
on the other hand, had not
attempted to strike out the Plaintiffs� action for these procedural
defaults. Perhaps, for
economic reasons, the staying order was a better
option and prolonging it would not matter much to the Defendant. In fact,
the Defendant wants it out of the way as soon as possible. This Motion is to
achieve that end.
In the first place, none of
grounds 1-6 in the Notice of Motion alleges lack of disclosure of evidence
against thst the Plaintiffs
at the ex
parte hearing so that the ex
parte order
would have had no factual basis for its making. The order was made on the
basis of the Writ of Summons, the
Statement of Claim and the affidavit of
Agnes Votaia filed on 18th September 2000. Exhibits �AV1�, �AV2�,
and �AV3� were attached to Agnes Votaia�s affidavit. Exhibit �AV1� clearly
shows
that Harero Land does not appear in Form 11. Exhibit �AV2� shows the
area of land named Harero as known by the Plaintiffs.
�AV3� shows Harero
land is a separate area of land from Teborana. The Plaintiffs� Statement of
Claim raises three triable issues. First, is whether or not the Defendant�s
Licence was valid in so
far as it covers Harero Land. Second, is whether or
not Harero is a separate land from Teberona. Third, is whether or not
Plaintiffs are the owners of Harero land in custom. These are triable issues
based on the cause of action that the Plaintiff�s
are the owners of Harero
land and have not consented to the Defendant felling and removing timber
from Harero land. The
reasons for granting the ex
parte orders are set out in
my ruling on 25th September 2000. If the Defendant was not in
agreement with that ruling it should have appealed with leave of the Court
to the Court of Appeal. The Defendant has not adduced any evidence to show
any defect or omission in the evidence before
me at the hearing of the
Plaintiffs� ex
parte Summons on 22nd September 2000. There is no
ground upon which I can discharge the ex
parte order I made on 26th
September 2000. It was an interim order only and its fate would have been
decided at the end of the hearing of the Plaintiffs�
action if that action
had come to trial earlier. As it is now, the trial date is yet to come
depending upon how the Plaintiffs�
Solicitor takes the matter from here. My
ruling is that the Defendant�s application is dismissed and the ex
parte
order should continue until trial of the Plaintiffs� action. The quicker the
trial date is fixed for the Plaintiffs�
action, the better it is for the
parties. Costs are to be in the cause.
F. O. Kabui
Judge
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