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Sina v Allardyce Lumber Company Ltd [2001] SBHC 83; HC-CC 327 of 1994 (20 November 2001)

THE HIGH COURT OF T OF SOLOMON ISLANDS

Civil Case Number 327 of 1994

JOHN SINA AND OTHERS

v

ALLARDYCE LUME LUMBER COMPANY LIMITED,

JOHN MARK MATUPIKO

AND

ATTORNEY - GENERAL

Before: nk O. Kabui, J.

Civil Case Number 327 of 1994

Date o Hearing: 16^th November 2001

Date of Judgment: 20^th November 2001

Mr. ri for the Plaintiff

Mr. J. Sullivan for the Defendant

JUDGMENT

(Kabui, J:) The 1^st and 2^nd Defendants filed two applications in this case. The first application was by Summons filed on 11^th September 2001 seeking the following Orders -

1. &&nbsppan>hese injunctions in paragraph 1, 2 and 3 of the Interim Order made oon 21^st Fe February 1995 be discharged forthwith.

class="MsoNormal" sal" style="text-indent: -28.5pt; margin-left: 64.5pt; margin-right: 21.6pt; margin-top: 1; margin-bottom: 1"> 2.  p;&nbbsp;Susp;Such h further or other order the court may seem fit.

3. & p;&nbsp&nbsp Thep;The costs of acidentalental to this application be paid for by the First and Second Plaintiffstiffs.

The second application was by Notice of n filed on 24^th sup> September 2001, seeking the following orders -

1. &nbbsp; The action bmissed with cosh costs of the basis that the First and Second Plaintiffs have no standing.ding.

2. &nbp; &nnbsp;;&nbp; &nsp; Such furorer herotrder as t as to this Honourable court may seem meet.

>

3. &nbbsp; The costsnd inci incidentalental to his action be paid for the First and Second Plaintiffs.

The Summons above is an interlocutory application. The Notice of Motf Motion above is an application to strike out the action commenced by the 1^st and 2^nd Plaintiffs by Writ of Summons filed on 8^th December 1994.

The Plaintiffs' Statement of Claian>

The Plaintiffs claimed to be the Chiefs of tribes owning land between Kazo to Ongo and Timbala rivers. They claimed that the Vella La Vella Area Council in 1992 dealt with Form 1 which covered the customary land area situated between Bae Point and Kazo river in North Vella La Vella which area comprised different land areas owned by different tribes and individuals. They claimed that Form 2 did not include the area of land between Kazo and Timbala rivers. They claimed that Form 4 was signed by the 1^st and 2^nd Defendant under which timber rights in the area between Kazo to Timbala were granted to the 1st Defendant by the 2^nd Defendant. They therefore claimed that Form 4 and the licence based upon it were null and void. They sought declarations, injunctions and account of all the logs, species, volume and value thereof extracted from the land between Kazo to Timbala. They succeeded in obtaining court injunctions, amongst other things, in February 1995.

In their Defence filed on 13^th April 1995, the 1^st and 2^nd Defendants denied that the 1^st Plaintiff was a tribal Chief of Sauro tribe. They said the right Chief was Gomese Dululu as far as land between Kazo to Timbala was concerned. They however said, the land owned by Ulukue Susu Sauro tribe was only a gift, small in size, and situated on the Suilo Hill and Bolosigoe ridge. They said, apart from that, the 1^st Plaintiff owned nothing between Kazo to Timbala for the reasons set out in their Defence.

In the reply filed on 18^{th 1st Plaintiff said Chief Gomese Dululu had authority over land between Bae Point to Kazo river. He said Form 1 covered land between Bae Point to Kazo river and not beyond, otherwise the Plaintiffs would have been included in Form 2. They concluded by saying that the CLAC decision in 1980 did not bind them as they were not parties to that case.}

The Facts

The facts are that the Plaintiffs� Statement of Claim seeking declarations has yet to beto be decided by the High Court. The interlocutory injunctions etc obtained in February, 1995 are still in force. The land between Kazo to Timbala, in the meantime, has not been logged following the granting of the injunctions in favour of the Plaintiffs. These injunctions have now been in place for 6 years. The 1^st and 2^nd Defendants want them out because the 1^st Plaintiff had failed to determine his ownership claim to the land between Kazo to Timbala. The 1st Plaintiff had been slow since February, 1995 when he obtained the Court injunctions in his favour to take his dispute to the Local Court for a decision. Because of this, the 2^nd Defendant took the dispute up in the Vella La Vella Local Court in 1996. The 1^st Plaintiff did not attend the Vella La Vella Local Court hearing in 1996 though he was aware of that hearing some days later. The Vella La Vella Local Court decided the dispute against him in his absence. The 1^st Plaintiff appealed to the WCLAC and lost in the WCLAC decision made on 15^th February 2001. The 1^st Plaintiff was to be blamed for the delay in the first hearing of his appeal before the WCLAC on 24^th September 1997. He failed to attend the Court hearing at Gizo on that date. However, upon losing his appeal in the WCLAC on 15^th February 2001, he appealed to the High Court on that same date. The appeal is Civil Case No. 082/2001. He lost his appeal in the High Court in the judgment I delivered on 6^th September 2001. Some weeks later, he applied to the High Court for leave to apply for certiorari to quash the decision of the Vella La Vella Local Court made in his absence on 1^st August 1996. In my judgment delivered on 6^th November 2001, I refused leave and dismissed his application.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The effect of dgment on 6th November 2001 on the success of Civil Case No. 327/1994

Clear the decision of the Vella La Vella Local Court made on 1^st August 199 1996 against the 1st Plaintiff stands. He cannot now dispute the ownership of land between Kazo and Timbala because the Vella La Vella Local Court said in its decision that the 2^nd Defendant owned that land on behalf of the Kubongava tribe. There is no way in the world that he can remove that decision for any reason. Counsel for the 2^nd Defendant, Mr Sullivan, said that the 1^st Plaintiff had no standing in this case following the decision of the Court in Civil Case No. 082/2001. Counsel for the 1^st Plaintiff, Mr Suri, argued however that the boundaries of the land would need to be determined under the timber rights acquisition procedure under the provisions of the Forests and Timber Utilization Act (Cap. 40) and therefore the 1^st Plaintiff would have standing. I do not understand Mr Suri�s argument because land between Kazo to Timbala is owned by the 2^nd Defendant on behalf of the Kubongava tribe. It was on this basis that Form 4 was signed between the 1^st Defendant and the 2^nd Defendant. It is clear from the CLAC decision in 1980 that the 2^nd Defendant on behalf of the Kubongava tribe owned the land between Kazo to Timbala. Whilst it is true that the CLAC decision in 1980 does not bind the 1^st Plaintiff, the 2^nd Defendant again won the same land in 1996 in the Vella La Vella Local Court, a decision which the 1^st Plaintiff must now accept. It must be accepted that Kazo and Timbala are the boundaries of the land owned by the 2^nd Defendant on behalf of the Kubongava tribe. I reject Mr Suri�s argument. The 1^st Plaintiff clearly has no standing to question the ownership of the Kazo land. How can he claim standing when the Vella. La Vella Local Court had given ownership to the 2^nd Defendant on behalf of his tribe. The 1^st Plaintiff has no right to be heard on the issue of ownership. He has unfortunately lost that right. I would therefore grant order I sought in the 1^st and 2^nd Defendant�s Notice of Motion. It therefore follows that order I in the Summons be also granted. That is, paragraphs 1, 2 and 3 of the interim order made on 21^st February 1995 be discharged forthwith. Whilst I am aware that the Plaintiff has been losing his cases in this Court, I bear in mind also that he has lost mostly on technical grounds in respect of which he has not the slightest control or for which he must bear the blame. He has been just been unlucky in his efforts to fight in the Courts. I therefore feel that each party should bear his own costs in this case. The Order of this Court is that -

1. The action be dismissed; 2. Paragraphs 1, 2 and 3 of the interim order made on &nnbsp;;&nbssp; February pt"> 1995 be discharged;21^st

3. 1pt"> Each party bears his own costs.