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Tahu v Choe Integrated Development Ltd [2010] SBHC 47; HCSI-CC 34 of 2010 (3 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

ATABAN TAHU
(representing the Kuripetu Chale, Choki
and Guva Landowners of Marovo Lagoon)
Claimant

AND:

CHOE INTEGRATED DEVELOPMENT LTD
First Defendant

AND:

RIMA LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
(representing the Commissioner of Forest Resources)
Third Defendant

Dates of Hearing: 4 and 27 May 2010
Date of Decision: 3 August 2010

Ms. Bird for claimant
Mr. Ashley for first defendant
Mr. Rano for second defendant
Mr. Firigeni for third defendant

DECISION ON APPLICATION TO STRIKE OUT CLAIM

Cameron PJ:

1 The second defendant applies to strike out this claim on the basis that it discloses no reasonable cause of action and is an abuse of process.

2 The first defendant Choe Integrated Development Company Ltd ("Choe Ltd") holds a timber felling licence and the second defendant Rima Ltd is its contractor. Logging pursuant to the licence is being carried out in Chale, Choki and Guva customary lands in Marovo Lagoon, Western Province.

3 The claimant asserts that he and members of his tribe (he does not identify which tribe this is in his sworn statements) are the customary owners of those lands, that they have not given their express permission for the defendants to log their lands, and that accordingly restraining orders halting the logging ought to be made along with an accounting for the sale of the logs.

4 The defendants say that the timber felling licence was validly granted and that in any event the claimant has no standing to mount this challenge.

5 From the material before the Court it is apparent that the Form I application by Choe Ltd for approval to negotiate to acquire timber rights was approved the Commissioner of Forests on 7 November 2004. This sought approval for lands including the Choe, Choki and Guva customary lands the subject of this case.

6 A timber rights hearing was then held by the Western Provincial Executive on 9 February 2005, and despite some objection, there followed a determination identifying 5 persons as the rightful grantors of timber rights in respect of the land. The land the subject of the hearing was referred to in that determination as Choe customary land, which included the disputed lands Choe, Choki and Guva.

7 At that timber rights hearing the claimant, who was a director of Choe Ltd at the time, represented Choe Ltd. That is, he appeared for the company and argued in favour of approval being given to Choe Ltd to acquire, through identified timber rights grantors, a licence over Choe customary land including the disputed lands.

8 The claimant was not one of the persons identified by the Executive as being entitled to grant rights over the land. Notwithstanding this, he did not appeal the determination. However, it would appear that two of the objectors at the timber rights hearing and one other did appeal the determination to the Western Customary Land Appeal Court (WCLAC). In a decision dated 14 November 2006, the WCLAC set aside the determination and itself identified afresh the rightful grantors of timber rights. Those identified were the 5 already identified in the earlier determination, together with an additional person by the name of Skinner Rence. It is clear from the decision that the land in question, known as Choe Customary land, included the disputed lands. At page 6 of the decision the Court states:

"... it is clear from the evidence presented by the appellants and respondents to this court that Choki, Chale, Guva, Choe Ulu, Choe Kokorapa and Choe Peka were part and parcel of land within Choe customary land".

9 Then followed a standard logging agreement dated 19 March 2007 in respect of Choe customary land (including the disputed lands). Choe Ltd then applied for the issue of a licence for Choe customary land (including the disputed lands). On 26 August 2009, a 5 year licence No. A10735 was granted to Choe Ltd by the Commissioner of Forests. The description of the land on the face of the licence and to which the licence applied was:

"Choe Peka, Choe Ulu and Choe Kokorapa Customary Lands, New Georgia Island, Western Province".

10 Significantly, the description of the lands in the licence made no reference to the disputed lands Chale, Choki and Guva. The reason for this is apparent from a letter dated 23 May 2007 from the Commissioner of Forests to Mr. Nilton Chite (he having applied for the licence on behalf of Choe Ltd) - exhibit AT 11, claimant's sworn statement 30 April 2009. That letter states:

Please do note that since Chale, Choki and Quva customary lands are under JP Enterprise Licence No. A10633 valid until 01.12.2008, meantime can you just state the other customary lands in respond to question on description of land. Be reminded that until these three lands (Choki, Chale & Quva) are legally cleared, you shall still maintain other licence lands as your operational areas."

Thus it is quite clear that Chale, Choki and Guva land (the disputed lands) were excluded from the ambit of Choe Ltd's licence until such time as the licence by JP Enterprises Ltd (a rival company) over those lands expired.

11 In a decision dated 23 November 2009 in CC 316/2007, the High Court declared JP Enterprises Ltd's licence A10633 to be null and void because of flaws in the timber rights process. The decision makes it quite clear that the licence is declared to be void ab initio (i.e. since its inception).

12 Based on this declaration, Choe Ltd applied to the Commissioner of Forests to extend its 28 August 2009 licence so as to include Chale, Choki and Guva customary lands. The Commissioner of Forests acceded to this request and has amended the 28 August 2009 licence so as to include those lands. The description of the land covered by the licence (i.e. the concession area) is now described on the face of the licence as:

"Choe Peka, Choe Ulu, Choe Kokorapa, Guva, Choki and Chale customary lands, South New Georgia, Western Province".

13 Choe Ltd, pursuant to this licence, is now logging in Chale, Choki and Guva customary lands through its contractor the second defendant.

14 The claimant asserts that any logging in the disputed areas prior to the declaration on 23 November 2009 as to the invalidity of JP Enterprises Ltd's licence was illegal, as those lands were not originally covered under Choe Ltd's licence. Against this, the defendants argue that JP Enterprises Ltd's licence has been held to be void ab initio, and therefore in fact its own licence can be treated as extending from the outset to those additional areas of land. The defendants point out that the logging agreement which preceded the licence authorises logging of all the lands including the disputed areas.

15 The difficulty the claimant has is in establishing any basis for this claim. He asserts that he is a member of a tribe (not identified by him) which has customary ownership of the lands and has not granted permission for the defendants to log. That overlooks that a timber rights process has been undergone which identified those entitled to grant timber rights. The claimant, who was present at the hearing, was not identified as such a person, and did not appeal from that finding following the timber rights determination. Further, the WLAC identified 5 persons as entitled to grant timber rights over the land, and once again the claimant was not one of those identified. An assertion by the claimant now that neither he nor his tribe gave permission to Choe Ltd to log the land does not withstand scrutiny in that those entitled to grant timber rights over those lands were identified first by a timber rights determination, and then by the WLAC. The logging agreement which was subsequently signed, granting timber felling rights to the first defendant, was in itself the permission required by Choe Ltd from those identified as being entitled to grant timber rights. As stated, that agreement gave permission for logging of all the land, including the disputed land. Therefore the claimant cannot now maintain an action based on a lack of permission.

16 I have not overlooked that in a letter dated 17 May 2006, some of those identified as timber rights grantors entrusted the claimant to "Provide leadership to any court cases or dispute relating to these land-areas" see AT1, claimant's sworn statement dated 17 December 2009. This does not overcome the lack of valid grounds to challenge the process relating to the grant of the licence, for the reasons I have already provided.

17 Nor have I overlooked the fact that the claimant appeared for Choe Ltd at the timber rights hearing, and now complains about the very success of that application in achieving for Choe Ltd a grant over all the lands (including Chale, Choke and Guva). That does not reflect well on the bona fides of the claimant in bringing this claim.

18 The claimant in a sworn statement filed on the last day of the hearing stated that one of those identified as a grantor of timber rights, Mr. Simeon Pui, was deceased at the time the standard logging agreement was signed on 19 March 2007. In the execution portion of that document, the name "SIMEON PUI" appears in capital letters, followed under the signature column by the words (not in capitals) "S. Pui (Deceased)".

19 The claimant asserts that he is the nephew and successor of the deceased Simeon Pui, and that as such he should have been the person asked to sign the standard logging agreement in place of the deceased. I am unaware of the basis on which the claimant says that he is the rightful successor to the deceased. In addition, following the death of a person identified as a grantor of timber rights, no doubt the Commissioner of Forests would have to be satisfied that there was a proper basis on which any other person could grant those rights in the place of the deceased person. There is no material at all as to this on the Court file, and I therefore consider that the claimant is unable in this case to challenge the licence on this basis.

20 For these reasons I consider that the claim discloses no reasonable causes of action. The claim is accordingly dismissed. The first, second and third defendants are entitled to costs against the claimant on a standard basis. Costs are to be agreed or taxed, and in any event are to be paid within 28 days of the date of this order.

BY THE COURT

__________________________
Justice IDR Cameron
Puisne Judge