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Kalena Timber Company Ltd v Kalikoqu Development Company [2011] SBHC 13; HCSI-CC 230 of 2007 (29 March 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 230 of 2007

BETWEEN

KALENA TIMBER COMPANY LTD
First Claimant

And

CHIEF NATHAN KERA, RONALD KITU, NELSON HUTI, NEPIA OKA and JAMES RIAKEVU (Representing Saikile Chieftaincy)
Second Claimant

And

KALIKOQU DEVELOPMENT COMPANY
First Defendant

And

INTERGRATED FOREST INDUSTRIES SI LTD
Second Defendant

Mr Fakari for the First and Second Claimants
Mr Tegavota for the First and Second Defendants

Date of Hearing: 22nd March 2011
Date of Judgment: 29th March 2011

Judgment

1. This matter started life in June 2007 with the filing of a Writ of Summons. The Statement of Claim [1] (which was annexed to the Writ but which is no longer on file ) states, in brief, the Second Claimants were the persons entitled to grant timber rights over Togosage Land and they entered into an agreement with the First Claimants. A timber licence (issued under section 5 [2]) was granted to the First Claimant by the Commissioner of Forests on 24th April 2002 (A10129 [3]). Just under a year later another licence (also issued under section 5) was allotted to the First Defendant (A10214 [4]). The former licence was in respect of Togosage Land. The latter, although it is not said as such in the Statement of Claim, covered Kalikoqu Land. The defendants are said to have entered Togosage Land owned by the Second Claimant in custom and harvested logs for sale. It is claimed the defendants removed 585 trees amounting to just over 3,376 cubic metres of timber. It is also alleged the logging operations conducted by the Second Defendant have caused environmental damage.

2. A Defence and Counterclaim was filed on 19th September 2007[5]. It admitted the identities of the claimants but denied the Second Claimants controlled Togosage (called by the defendants Togasage). It admitted the existence of licence A10129 but denied its legality. The defence claims the Timber Rights Hearing which eventually led to the grant of the licence was unlawful because it ignored earlier cases (and there is a list them) and earlier hearings. The defendants, it is said, have a licence covering Togosage and in any event blocks 3, 4 and 5 were the subject of a separate agreement between the claimants and a Machiver Hiele.

3. That is the distilled essence of this case. It has been going on for nearly four years. It has probably cost the parties thousands of dollars in legal fees. When you look at the resources devoted to this case by the court it has certainly cost the judiciary thousands of dollars. All of these costs, at the very least a great deal of these costs, could have been avoided if only the Commissioner of Forests and his supporting Ministry kept proper records. Surely it is not beyond the resources of the Ministry to keep a master plan. On that master plan concession areas under different licences could be marked. That could easily be accomplished using GIS (geographical information systems) software. A simple Google search will reveal how to obtain open source GIS software which is free. At the very least a register of licences could be kept showing those granted and listed by Province and customary land name.

4. These simple measures would prevent what has happened here, two licences being issued which overlap. This is not the only case I have dealt with where there is this problem. Nor is this the only case I have dealt with where a licence have been issued without maps or plans attached. I am not asked to decide on the legality of any licence in this case but in my view every licence issued by the Commissioner of Forest since 2005 without a map to 1:50,000 or larger scale attached is a worthless piece of paper.

5. As I have said, I am not being asked to decide the legality of any licence in this case. There is no need to. Section 40 of the Act is clear. No licence or permit issued under the Act shall convey or be construed to convey any right which the Government does not have. The section goes on to say in particular no licence shall be authority or grant any right to enter private land. As I understand it, licences issued prior to 2005 carried a clear warning about section 40. I do not know if the post 2005 licences carry a similar warning. The right for the licensee to enter private land is contained in any agreement between the licensee and the landowners. The defendants have not been able to produce a copy of any undisputed agreement between themselves and the landowners of Togosage land.

6. There appears, at first sight, to be conflicting evidence about the ownership of Togosage land. However one thing is agreed, there was a Roviana Local Court case in 1975. The certified handwritten ruling in that case is in the court book at page 275 with a typed copy at page 184. There are some discrepancies between the handwritten copy and the typed copy. Where there are, the copy certified by the Western Magistrates Court would of course be preferred. The defendants say, in so many words, it is a bogus case. The case was referred to in a Timber Rights Hearing held between 14th and 18th September 1992. One Esau Uvelamana appeared at that hearing[6]. This is the same Esau Uvelamana who swears an affidavit in 2007 [7] saying, "the said Roviana Local Court Decision was unknown to Kalikoqu Chieftaincy and Kalikoqu Tribe for sometimes until only recently". Whilst I accept the reference in the 1992 hearing was to a Gizo/Kolombangara court case, Mr Uvelamana was aware that there was a case numbered 4/75 which the claimants were saying awarded land between Bulelavata and Koguru to the Chief of Saikile. His "evidence" to the Timber Rights Hearing in 1992 was not to the effect the case was bogus but that Chief Nathan Kera should, "disqualify himself to be the true holder of those court decisions".

7. There is no evidence before me of any appeal against the decision in the Local Court. I must assume the finding of the court is still good. It is conclusive as to the ownership of Togosage land. The cases referred to at paragraphs 5(a) (i) to (iii) of the Defence and counterclaim led to the Roviana Local Court Case. That much is clear from the Bodily CJ's decision at page 277 of the court book. He says [8], "The most the magistrate could do was to hear evidence concerning ownership and heredity and form an opinion as to who prima facie had a customary interest in the land". His Lordship went on, "He did not purport to decide, and had no jurisdiction to decide, who those beneficiaries might be. That is a matter for the Local Courts to decide....". It is important to note that His Lordships view expressed above was with regard to the law at the time. More recent decisions in this jurisdiction have of course emphasised the nature of an appropriate local authority's determination in similar situations today. In the case above Bodily CJ did not believe there had been a binding decision about ownership and as a result the Second Claimants went to the Local Court. The later cases at paragraphs 5 (a) (iv) to (vi) are post the local court case and do not change what was decided in 4/75 and which is still conclusive today.

8. There is no evidence to the contrary and so I have no reason to doubt the copy of the decision set out at pages 275 and 276 is authentic and sets out the present position as to ownership of Togosage land. Indeed, it is certified as a true copy. It refers to Tagosage Land and says Nathan Kera and his line look after the area from Bulelavata to Koqu Ruga. The decision also says Holy Mama, John Roni and Jacob Lingi look after the area from Bulelavata to Hura. If the Defendants have logged land which is on the eastern side of the river or west of Koqu Ruga then they have trespassed. It matters little whether they have a licence or not. It matters little whether they think they have the permission of the landowners or not. What matters is whether they did have the actual or ostensible permission, authority or other agreement of the true landowners. If they have trespassed on Togosage land "owned" by the Second Claimants and have felled and removed trees from that land they have converted those trees to their own use. They are liable to the Second Claimants.

9. In the court book there are also notes of a Timber Rights Hearing and subsequent determination (set out from page 300 of the court book). The notes are not dated but as they are together I presume the notes relate to the determination which is dated 24th May 1993. This is barely 8 months after the hearing which took place between 14th and 18th September 1992 [9] (see also paragraph 6 above). Nine of the Roviana Area Council Members at the 1993 hearing were also present at the earlier one. Five members who took part in the 1992 decision took part in the 1993 decision. Three of those members who took part in the 1993 decision declared an interest in the 1992 matter and were excluded from taking part in that earlier determination. In the 1993 hearing Isaw Hiele says there are no disputes in Togosage. He corrects himself later and says there was a little dispute before, but it had been solved. Chief John Roni says about Togosage, "we have ended up in the High Court about that land and as a result I have won it". Despite hearing about Togosage land only 8 months earlier the Area Council Members accept these misrepresentations as to fact. Fortunately the determination handed down in 1993 was in respect of an application by Golden Spring and is of no assistance in this case. In any event the Area Council Members could not and did not somehow change the Roviana Local Court decision no 4 of 1975. Anything they determined did not affect the ownership of Togosage Land as set out by the local court in 1975.

10. That should be an end to this case. It is not. The problem of mapping crops up again. There are plenty of maps and plans in the court book. None of them are much use. They are either not coloured as per the originals or they are so indistinct, faded or downright bad they might as well be a map of the moon. As I read the Roviana Local Court decision, it says the boundary between the Second Claimants' land and Kalikoqu land is the Bulelavata river. It is impossible to say from any of the plans or maps exactly where the river is let alone any boundary. It also makes it impossible to say whether, despite all I have said above in paragraph 9, the determination by Roviana Area Council may have some validity after all. In other words the Area Council were making a determination about some other land called Togosage.

11. We then have the problem of the "Hiele" land. At pages 206 and 318 of the court book there is a memorandum. It is between Maciver (sometimes called Machiver) Hiele and Esau Uvelamana. Mr Hiele says he had been given a mandate by Saikile Chieftaincy and Kalena Timber Company "to log and manage alone" certain areas. Mr Hiele quotes two letters. One is from Kalena Timber Company Ltd [10] and the other is from Saikile Chieftaincy [11]. Mr Hiele clearly misrepresents the effect of the two letters. It is a gross exaggeration for him to say they mandate his logging of blocks 3, 4, 5 and 6. They do absolutely nothing of the sort. The letter from Kalena Timber Company Ltd says they will not log the catchment area but as the land owners insist on operating within the catchment area they release the area to the landowners. The next sentence is very telling, it says that any damage claim or compensation due as a result of the logging within the catchment area will have to be met by the landowners. The letter from the Saikile Chiefs refers only to "salvage logging" below the water catchment area for Bulelavata/Beulah school.

12. If any logs were taken from an area outside of that described above by the defendants or if anything other than salvage logging took place that too would have involved conversion of the Second Claimant's logs. Whether the defendants would have a right to seek re-imbursement from Mr Hiele is another matter. If, as is set out in the memorandum, he produced copies of the letters for the defendants to peruse before they signed, it is difficult to see how they can now say they had ostensible authority to log everywhere they did. They would have seen for themselves exactly how exaggerated Mr Hiele's "interpretation" of the letters was and how limited in extent the permission given.

13. I have no doubt the defendants have trespassed on land which is owned in custom by the Second Claimant. I have no doubt they have harvested logs which are owned by the Second Claimant and in which the First Claimants have an interest by reason of their agreement with the landowners. I am not sure as to the extent of the trespass or the number of logs "taken" by the defendants. I have no doubt the logging operations undertaken by the Second Defendant have caused environmental damage. Whilst I can be sure as to the nature of the damage, because it is set out in the report by the Environment and Conservation Division, Ministry of Forests, Environment and Conservation [12], I cannot be certain as to the extent of the damage.

14. The claimants are entitled to enter judgment with damages to be assessed. The claimants are entitled to costs and I order the defendants to pay those costs and that those costs be taxed on a standard basis if not agreed. The assessment of damages will be adjourned. The claimants shall file sworn statements to support assessment and those sworn statements must contain or have annexed clear legible plans and maps showing the area of land over which the defendants trespassed. Those maps or plans should show the area from which logs were taken and the statement(s) must show, to the necessary standard of proof, the number of logs converted by the defendants. The extent and exact nature of the environmental damage must also be set out. The defendants will, of course, have the opportunity to file sworn statements in reply.

Chetwynd J

^[1] See page 4 of the court book
^[2] Forest Resource and Timber Utilisation Act [Cap. 40]
^[3] See page 62 ibid
^[4] See page 91 ibid
^[5] See page 23 ibid
^[6] See page 291 ibid.
^[7] See page 177 ibid
^[8] See page 280 ibid
^[9] See pages 282 – 299 ibid
^[10] See page 203 ibid
^[11] See page 204 ibid
^[12] See pages 241 to 249 inclusive ibid