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Ngalihesi v Intergrated Agro-Forest Development [2012] SBHC 116; HCSI-CC 239 of 2010 (5 October 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 239 of 2010

BETWEEN:

FR. PATTERSON DORA NGALIHESI, JOHN AKOASI,
MOSES DORA, TIMOTHY AUPAI, REUBEN RARADA,
SILAS HOUOUOU AND JOHN STILL DORA
Claimants

AND:

INTERGRATED AGRO-FOREST DEVELOPMENT
First Defendant

AND:

SAMLIMSAN (SI) LIMITED
Second Defendant

AND:

LEONARD LAE, PETER ILALA, AND JACOB
PARUMANE
Third Defendant

AND:

SAMSON MAESITE'E AND PHILIP OLIPUEROPO
Fourth Defendant

AND:

BARTHOLOMEW OSI
Fifth Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forests)
Sixth Defendant

Date of Ruling : 5th October 2012

Mr. Marahare for Claimants
Mr. Balea for First to Fifth Defendants
Mr. Firigeni for Sixth Defendant

PRELIMINARY RULING

Mwanesalua J:

[1] This Amended claim was filed on 14 March 2011. The Claimants seek as against the First to the Fifth Defendants either jointly or separately:

1. A declaration that the First Defendant does not hold a valid licence to fell and remove trees from the customary lands of Asirara, Huirara, Pungu and Sesu situated in Ward 23 on South Malaita, Malaita Province, and that any purported licence held in respect of these lands is in all respects null and void;
   
2. Consequence upon order I hereof, a declaration that the First to Fifth Defendants' entry onto the customary lands of Asirara, Huirara, Pungu and Sesu situated in Ward 23, South Malaita, Malaita Province, was illegal and amounted to trespass.
   
3. A permanent order restraining the First to Fifth Defendants, by themselves, their agents and/or servants from entering and/or felling any trees and logs from the concession areas of Asirara, Huirara, Pungu and Sesu situated in Ward 23 on South Malaita, Malaita Province.
   
4. An order directing the First to Fifth Defendants to account for royalties paid to them including all the marketable trees felled on and removed from the customary lands of Asirara, Huirara, Pungu and Sesu situated in Ward 23 on South Malaita, Malaita Province, since the commencement of their operation within 14 days from the date of judgment;
   
5. Damages to be assessed for conversation of marketable trees;
   
6. Damages for trespass to land environment degradation to be assessed;
   
7. Interest at 5% per annum until payment;
   
8. Costs of and incidental to this action;
   
9. Any other order that the court deems fit to make.
   

As against the Sixth Defendant:

1. A declaration that the Felling Licence A10730 issued to the First Defendant was null and void in so far as it relates to the concession areas of Asirara, Huirara, Pungu and Sesu situated in Ward 23 on South Malaita, Malaita Province, for the reason that the First and Second Defendants failed to comply with the provisions relating to the timber rights acquisition process provided for under the Forests and Timber Utilisation Act (Cap. 40) as amended.
   
2. Any other order that the court deems fit to make.
   

[2] The First Defendant filed its Defence to the Amended claim on 6th May 2011. And the Sixth Defendant filed his Defence to the Amended claim on 13th April 2011. The Second, Third, Fourth and the Fifth Defendants have not filed any defence to the Amended claim. The court noted from the First Defendant's Defence, that there are still boundary and ownership disputes over the customary lands referred to in this case, between the Claimants and the First Defendant. The court does not have jurisdiction to determine those issues. They fall within jurisdictions of the Chiefs and the local court.

[3] The task of this court at this stage of the proceeding is to determine a preliminary question. By paragraph 1 of the Directions Order of 24th November 2011 it was directed that the court will determination the following preliminary question after further materials and written submissions are filed by the parties. Written submissions were received on behalf of the First to the Fifth Defendants. They were filed on 9th May 2012. It would seem that no written submissions were filed on behalf of the Claimants.

[4] The said question can be broken down into two parts as follows for clarity as had been done by the Defendants:

(a) Whether or not the felling licence No. A10730 granted or issued to the First Defendant by the Sixth Defendant on 10th July 2009 should be declared a nullity in view of the letter of retraction dated 3rd October from Mr. Adrian Aihari of the Magistrate's Court in Auki; and

(b) If so, who should be held liable for the claims arising from the operation on the various concession areas the subject of licence A10730, more particularly, the customary lands of Asirara, Huirara, Pungu and Sesu situated in Ward 23 on South Malaita, Malaita Province.

[5] The First and Sixth Defendants have filed their respective defences to the Amended claim. Written submissions on behalf of the First to the Fifth Defendants have been made and filed on 9th May 2012. The Claimants and the Sixth Defendants have not made any written submissions despite the fact that they also agree that these preliminary issues be determined by the court.

[6] In actual fact, the issues are not preliminary at all. They are themselves the vital issues to be determined in the Amended claim at trial. Material evidence to determine the two issues is yet to be gathered and filed in court. They include the standard logging agreement, the harvesting coupe plan, and the decision of the appeal by Mr. Akoasi to the Malaita Customary Land Appeal Court.

[7] In the circumstance, this matter is adjourned to 18th October 2012 at 9:30am for mention.

THE COURT