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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
BETWEEN:
JAPHET MUNAI, JANET MUNAI ,HUGO VULAPADA, JOHN NESO
AND MARTIN PUHI
Claimants
AND:
ISABEL TIMBER COMPANY
1st Defendant
MUHIBAH SI LIMITED
2nd Defendant
MILTON GEDLY
3rd Defendant
Date of Hearing: 1 November 2016
Date of Judgment: 10 November 2016
Mr. M. Tagini for defendants
Mr. A. Hou for claimant
Application to strike out claim
Brown J:
On the 1 July 2016, the applicants sought injunctive orders restraining the defendants from logging Bagaho customary land described
as Lot 3, [in particular from Zengero to Lupigopa]. The applicants claim to be trustees in a Form 1 application submitted by new
Venture Limited seeking to log LR 697/3 known as Bagaho.
By Orders given on the 25 July 2016, this Court ordered the Isabel Provincial Executive postpone the timber rights hearing scheduled
for Tuesday 26 July 2016 until further order of this Court, since the defendants claim this land sought to be included in the application
to log before the Executive for consideration, was land already affected by a grant of timbers rights following a determination of
the Kia/Katova Area Council, on the 1 May 1991. At that time the 1st defendant, the Isabel Timber Company was the applicant for the right to log following it would seem, an agreement with the Kia/Katova
Area Council whereby the company would grant to the Resource owners 30% equity (shareholding) in the company and 30% of the profits
from the operations of the company. While the Certificate addressed to the Commissioner of Forests stated:
“And further it has determined on the 1st day of May 1991 that the following persons are there who are validly able to grant timber rights as required under S.5(c)(4)(b) of
the Forest Resources and Timber Utilization Act (Cap 90),” no persons names were listed.
Leaving aside for the time being the issues concerning the extent of Bagaho land (which is asserted by the defendants to include land from Zengero to Lupigopa) and addressing the actual licence to log relied upon by the 1st defendant, it can be seen the licence TIM 2/32 dated 29/10/91 expires on 29/10/21 and covers Hograno, Havilei/Kokota and Kia/Katova. These are customary names but in terms of Section 40 of the Forest Resources and Timber Utilization Act, no licence shall convey any right to log on land without the authority of the owner.
So this authority, or consent to log LR 697/3 is disputed, for the applicants say this Land Register block was never included in any authority, consent or agreement with these defendants, and consequently these defendants have no right to access the land for logging purposes.
The evidence on which they rely is that to be found in the statements of Janet Munai filed 1 July and 23 August 2016 and that of Nelson
Bako of the 23 August.
More particularly, Mr. Tagini for the original claimants [now the respondents to the application to strike out the proceedings], points
to the annexure to the statement of Janet Munai of the 23 August, “JM 2” where Timber Rights Agreement signed by “Landowner, Areas Committee or Representatives of the landowners or Trustees of the Landowners” and the company, Isabel Timber Company Ltd
and the Kia/Katova, Area Council, named the land Register Blocks affected, with the names of the speakers for the blocks, adjacent.
LR 697/1 has Selwyn Gamuatu and William Gini while LR 697/2 has Christian Nagiro, Andrew Gedi and Clement Felo.
Mr. Tagini also points to the statement filed for the defendants by Moffat Hiropuhi [the director of the 1st defendant] (filed 22 July 2016) who annexes that Timber Rights Agreement “MHO1” showing the same list of Land Register blocks, but this time has “/3” (adjacent to 697/2) written in by pen. No Speakers for block “/3” are added. Clearly there is demarcation between blocks 697/1 and 697/2 and I accept the inference ( in the absence of proof) which
the claimants rely on, that “ 697/3” is a separate block or parcel of land and was not named in the original logging agreement. This inference is supported by the claimants’
witness, Nelson Bako who signed the agreement for the customary land named Fufuana, LR 674. His land was included in the original
licence. But, he say;
“no–one signed for LR 697/3 at that time”
This is an issue for trial since the defendants rely upon the inclusion of LR 697/3 if it be so separate, in the Bagaho land originally awarded by the Area Council.
Since the time of the application, Mr. Hou, counsel [for the applicants to strike out] has filed as application to strike out principally
based on the evidence of Moffat Hiropuhi, a director of Isabel Timber Co. Ltd.
At paragraph 5 of his statement he says: “Bagaho land is not owned by the Applicants’ Thokama tribe. It is rather owned by the Rogesi tribe by virtue of the decision
of the Katova House of Chiefs made on 18th July, 2012. In that case, the Respondent David Bako, the first cousin brother of the second named Applicant Janet Munai represented
their tribe. The said decision had never been referred to the relevant Local Court having jurisdiction and/or overturned and remain
standing to date”.
Of course this evidence relates to the customary ownership, an issue which has been subsumed, it would appear, in the resolutions
of the Kia/Katova Area Council made on the 1st May 1991 in accordance with the requirements of the Forest Resources and Timber Utilization Act. For while the apparent minutes of
the Council meeting refers to but is silent on the names of the persons who may grant timber rights in respect of the application
by the company, and annexes a document, or Certificate addressed to the Commissioner of Forests, reiterating settlement with the
Isabel Timber Company by the Kia/Katova Area Council and reciting that it was determined on the 1 May 1991
“ that the following persons are there who are validly able to grant timber rights as required under section 5 (c)(4)(b) of
the Forest Resources and Timber Utilization Act (Cap 90),” no persons names were listed.
Lists of names appear on the annexures to the statements to which I have referred. The statement of Janet Munai (for the original claimants) filed 28 August at paragraph 5, refers to her annexure “JM2”.
In paragraph 5, Janet Munai says “JM2” shows land determined within Kia/Katova concession area, and says “this page was part of the exhibit in the sworn statement of Moffat Hiropuhi” (for the Isabel Timber Company, for these pages in the exhibited annexures show the pen addition in Moffat Hiropuhi’s annexure, of LR 697/3).
Yet the annexures to these two statements appear to differ in material respects. That annexure of Janet Munai “JM2” appears to commence part way through a larger document, for the annexed document page is headed “Termination” while dated at Honiara 2 August 1991 and follows with a list of “Landowners, Area Committee, or Representatives of the Landowners or Trustees of the Landowners” with signatures adjacent to names and also the page of names of the Landowners Representatives of Landowners or Trustees of Landowners identified within the area of the Kia/Katova Area Council (where LR 697/1 and LR 697/2 do not have the pen alteration), while the annexure “ MHO1” is a supplementary agreement-Timber Right Agreement made on the 21 July 1991 (although executed at Honiara on 2 August 1991) between “ “The Company” and the landowners referred to in Appendix 1 of the Logging agreement (herein after referred to as the Landowners”), representatives of the lawful landowners or Trustees of the lawful landowners in the licenced area of Isabel Timber Company in the Kia/Katova Area Council,” and while having the same list of LR numbers and names, does have the altered reference to “ LR 697/2/3”.
Nowhere in the material filed is there a document, “Appendix 1 of the Logging agreement,” While the question whether the land in dispute was part of Bagaho land when originally given over for logging, this question would appear to have been answered. For by annexure “JM2” to the initiating statement of Janet Munai, it seems Japhet Munai, one of the claimants, has confirmed consent of the 1st and 2nd defendants to log. I reproduce the letter.
“Molforu Village
Bagaho Area
Katova District
Isabel Province
Attention: Director
Muhibah (SI) Limited
Honiara
Date: 27/03/2016
Dear Sir,
RE: CONSENT LETTER
Following a special Meeting Held today 27th March 2016. Now come to understand on what’s going on with my land (Sabotona from the west and Lupighopa from the east –
Bagaho land) as an old man of 91 ages and lives in this land, I would like to express my happyness and your boldness to respect and
seek me.
With due respect as the owner of this land (Isabotona from the west and Lupighopa from the east-Bagaho land).
I am whole heartedly gives and consented you company, Muhibah (SI) Limited and Licenses Tim no 2/32 to carry out Logging operations
in the land.
I do not like GlenGrow Company to enter my land anymore, no any other Company but Muhibah (SI) Limited.
As alluded to earlier, once signed is irreversible.
By copy of this letter, the Commissioner of Forest is duly informed.
In witness whereof
I am hereto executed my signature as of the date written above
Japhet Munai
Cc: Commissioner of Forestry
For the licence TIM no 2/32 is that licence of Isabel Timber Company (“The Company”)
Yet by “application for approval for negotiation to acquire timber rights” by New Venture Limited (Form 1), Japhet Munai is named as one of these persons with whom preliminary discussions about logging has
been made and impliedly supports the application.
Clearly if Japhet Munai is to be believed, reading his letter, the application by New Venture Limited is misconceived where it names Japhet Munai, and his inclusion in the named claimants rather undermines the claimants’ case, for he, by his letter, supports the 1st and 2nd defendants yet he is named as one of the original claimants.
Yet again by Minutes of Meeting dated 13 April 2016 held at Moluforu Village signed by those who attended (including Chief Japhet
Munai,] this Resolution was made.
“In addition to the meeting Chief, Japhet Munai was fully declared that he want Muhiba (SI) Limited to land their machinery
to the land that he owned(LR 691/3, West Sabotona to East Lupighopa) Bagaho Customary land and to carry out logging activities immediately.
While the reps, of the three (3) Community Furona, Moluforu and Jejevo village, were fully support the plan that Chief, Japhet Munai
is proposed to do. Moreover they declared their thoughts that Muhiba (SI) Limited must be welcome as soon as they arrived to this
portion on land.”
Amongst the six Chiefs who signed the minutes was Martin Puhi of Moluforu Village, another of the claimants.
Again, this Resolution is difficult to reconcile with the Claim for interim injunctive orders.
Mr. Hou, Counsel for the defendants in favour of the application to strike out, relied upon the statement of Moffat Hiropuhi especially
paragraph’s 3,4,5 and 6:
“1. I am a Director of the First Respondent in this proceeding.
David Bako, said to be the first cousin brother of the 2nd named applicant, Janet Munai did not attend the chief’s hearing which recounted, by its judgment given on the 18 July 2012
that despite the non-attendance of David Bako (“for the people of Furona and Jejevo due to unforeseen circumstances”)
it was satisfied the Rogisi Clan was the primary landowners of the Bagaho Customary land in the Katova District, Isabel Province.
Clement Felo was awarded the secondary Right over Bagaho Customary land in the Katova District.
Japhet Munai, Ben Nago, Ellison Puhi and Robert Keoro were given land portions as token given them by the original landowners (Rogisi Clan) through proper land transaction in the past.
The named claimants have not appealed this Chief’s decision. Mr. Hou did, however, hand up a decision given by the Isabel Local Court in Land Case 04/2013 dated the 21 October 2016, which I accepted as relevant and mark as Exhibit 1.
The appellant was one David Bako, while the defendant was named David Rahukolo.
The Ruling by the Local Court does not name the Chief’s decision appealed from but, on Mr. Hou’s submission, I accept
that it relates to that ruling given 18 July 2012.
Again David Bako did not appear before the local Court to argue his appeal and it was struck out. While David Rahukolo’s representative
rights were not mentioned by the Local Court in its Ruling, since I accept the Ruling related to the Chief’s decision of the
July 2012, and that ruling was in favour of the Rogisi Clan, I am satisfied David Rahukolo was representative of that Clan.
I am satisfied, then that Japhet Munai had standing to speak for land within Bagaho and that the inclusion of his name in the originating Claim [and that of Martin Puhi] in apparent direct contradiction to the above Resolution and the letter, undermines the right of Janet Munai and these people to speak for the land. Neither Hugo Vulapada nor John Neso, the other claimants have made statements in support. I accept the evidence of direct ownership of the land in question and any evidence by the Primary Landowner Clan, the Rogisi supporting these claimants’ rights to redress of this nature is entirely absent.
Whilst the argument, as I have shown, has been made over the inclusion of LR 697/3 in the Timber Rights Technology it is plain LR 697/3 is within Bagaho land, where Rogisi Clan have primary rights.
The refutation by Japhet Munai of any claim to log by others rather disposes of any right in Janet Munai to pursue these proceedings contrary to Japhet Munai’s established right to speak for his interest in the land.
The proceedings are dismissed generally pursuant to R. 9.75(b) on the application of the defendant for no reasonable cause of action is shown by the claimants.
I further order that the timber rights hearing on the application of new Venture Limited (to log part of Bagaho land) by the Isabel Provincial Executive be permanently stayed.
I order that the claimants pay the defendants costs on the ordinary basis.
__________________
BROWN J
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