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Nivah v Delta Timber Company Ltd [2006] SBHC 84; HCSI-CC 173 of 2005 (5 May 2006)

HIGH COURT OF SOLOMON ISLANDS


Civil Case No: 173 of 2005


HEDISON NIVAH, NIBISASA NIVAH, JETTY NIVAH AND MILLERY NARU
(All representing the Owners of Sanalae Customary Land on Parara Island, Western Province)


-v-


DELTA TIMBER COMPANY LIMITED


(Mwanesalua, J.)


Hearing: 12th May 2005
Ruling: 5th May 2006


D. Tigulu for the Plaintiff
P. Tegavota for the Defendant


RULING


Mwanesalua, J: By summons filed on 5th April 2005, the Plaintiffs seek interim orders, inter alia, an order restraining the Defendant, its contractors, agents or servants from entering into Sanalae Customary Land (the Land) and from felling and removing any timber from therein or from carrying out any logging related activities in the said Land until trial or further orders of the court.


The Plaintiffs have come to court on behalf of themselves and other persons who claim ownership of the Land. The land is situated on Parara Island, Western Province. The Plaintiffs filed a writ of summons with a Statement of Claim on 5th April 2005, against the Defendant, claiming inter alia, damages for trespass upon the land and permanent injunction to restrain the Defendant, their contractors, agents and servants from entering the land and felling and removing timber from it. On the same date, the Plaintiffs also filed an inter partes summons for the interim orders sought in this proceeding.


The Plaintiffs claimed that they own the land. They argued that the court should grant the interim orders sought because: (1) the Defendant did not have a licence to conduct logging on the land and (2) that an interim injunction order be made against the Defendant as it was disturbing them by its operation while they were in the process of completing their timber rights acquisition procedure for Nivah Integrated Dev Company Limited (NIDCO) to carry out logging on the land.


The application by the Plaintiffs for interim orders was objected to by the Defendant. It argued that there was no serious issue or serious question to be tried by the High Court. Further, it also argued that the Plaintiffs cannot use the Western Provincial Executive(WPE) determination to support their ownership claim over the Land because an appeal is currently pending before the Western Customary Land Appeal Court against that determination.


The Plaintiffs are members of Late Chief Ikan Nivah’s family. They claimed ownership over the land. They registered NIDCO to carry out logging on the land. NIDCO applied to negotiate the acquisition of timber rights over the land. On 29th December 2004, the WPE convened a public meeting at Gizo to consider the application. The WPE determined that the persons lawfully able and entitled to grant timbers over the land were the Plaintiffs. On 18th January 2005, the WPE issued a Form 2 Certificate of its determination.


There was documentary evidence to show that an appeal was lodged by Hopeful Piosasa (representing Gemu Tribe) and Richard Boso (representing Gumi/Lamupeza Tribe) against the WPE’S determination. The appeal was lodged on 18th February 2005 and is pending before the Western Customary Land Appeal Court. The Appellants are not parties to this case. However, the appeal pending before the Western Customary Land Appeal should not be about ownership of land but about the identification of persons lawfully entitled to grant timber rights (See Aquila Talasasa, Jaco Zinghite and Nathan Maisasa Losa v.Rex Biku, John Kevisi and WCLAC, Civil Appeal No. 2 of 1987).


One of the Plaintiffs, Hedison Nivah and Wiliam Nivah, who supports the Defendant are brothers. They are sons of the Late Chief Ikan Nivah. Hedison Nivah gave affidavit evidence on behalf of the Plaintiff while William Nivah gave affidavit evidence on behalf of the Defendant.


The claim by Hedison Nivah that he was one of the owners of the Land was disputed by William Nivah. William Nivah said that their Late father, Ikan Nivah did not give ownership right over this land to Hedison Nivah due to reasons in custom. This court does not have jurisdiction to consider such custom reasons and to determine whether such reasons would deny Hedison Nivah of customary ownership of the land. If William Nivah was serious about these issues, he could have referred them to the Customary Land forums for determination.


According to the evidence of the Plaintiffs, the Defendant entered upon the land around 24th December 2004 without their consent. The extent of the Defendant’s intrusion and trespass into the land, was more than 1,500 metres. In the course of the alleged trespass on the land, the Defendant felled, hauled and skidded timber from the land in excess of 3,000m³ for export. The trespass and the logging carried out by the Defendant on the Land was verified by forestry officers who conducted ground inspection of the land on 26th February 2005.


The Defendant admitted through its advocate, Mr. Tegavota, that it constructed roads into the land to remove timber felled by certain members of the Nivah family within their respective parcels of land on the land. The felling of the trees and their removal was sanction by the Commissioner of Forest Resources by letter on 14th December 2004. The legal bases upon which the Commissioner gave his sanction is not known. However, one thing is beyond dispute. Any person who fells any tree or removes any timer from any land for sale without licence, commits an offence under section 4 of the Forest Resources and Timber Utilisation Act (Cap.40). The penalty for this offence is a fine of $3,000.00 or imprisonment for two years or both such fine and such imprisonment. There was evidence that the felling of trees and the removal timber from the land were done without any licence.


The Defendant did not dispute that Plaintiffs apart from Hedison Nivah were lawfully entitled to grant timber rights over the land. They still maintain this position at the present time. I consider that the Plaintiffs’ action against the Defendant is not frivolous and vexatious. They have sufficient interest on the land. I will allow their application. Their application for interim orders succeeds.


ORDERS OF THE COURT:


1. An interim injunction to restrain the Defendant, its constructors, agents or servants from entering into Sanalae Customary Land and from felling and removing any timber from therein or from carrying out any logging related activities in the said land until trial or further orders of the court.


2. The Plaintiff arrange for the hauling and sale of any timber already felled from the land and the proceeds of such sale be paid into an interest bearing joint trust account to be opened in the names of the Solicitors for the Plaintiffs and the Defendant and to remain there until trial or further orders of the court.


3. The Defendant is to pay the Plaintiffs’ costs of this application.


Francis Mwanesalua
Puisne Judge


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