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Kisinia v Delta Timber Company Ltd [2010] SBHC 11; HCSI-CC 17 of 2009 (19 March 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 17 of 2009

BETWEEN:

JOSEPH KISINIA
Claimant

AND

DELTA TIMBER COMPANY Ltd
Defendant/Applicant

Mr Tegavota for Claimant
Ms Tongarutu for Defendant

Date of Hearing: 10th March 2010
Date of Judgment: 19th March 2010

Judgment

1. This is an application by the Defendant under the provisions of Rule 9.75 of the Civil Procedure Rules 2007 seeking the dismissal of the claim on the grounds that no reasonable cause of action is disclosed and that the proceedings are frivolous and vexatious. The application was filed on 22nd October 2009.

2. The claim to which this application relates is set out in an amended statement of case filed on 5th March 2009. The claim is for the money value of timber and other loses and expenses. The claim, says Mr Joseph Kisinia the claimant, has arisen in the following circumstances.

3. Mr Kisinia is a member of the Kindu tribe. The Kindu tribe is a sub tribe within the Kazakuru tribe. Mr Kinisia claims ownership of areas of land which are within a larger area which is called Kazakuru Left hand Land (and commonly known as KLHL). Some of the exact detail about the matters related above is possibly disputed by the Defendant but not much may turn on that because the Claimant makes it quite clear that he accepts his areas of land (he calls them Taketi/Hakohako land) are within KLHL[1].

4. That "admission" is important because of the undisputed fact that the Defendant company has a felling licence over KLHL and has entered into a standard logging agreement with the timber rights grantors of KLHL. There is no suggestion by the Claimant that the Defendant’s licence is invalid or in some way defective or that the agreement is not binding on all those Customary Land owners within KLHL.

5. The Claimant acquired a Milling Licence which permits him to install and operate mills within Taketi and Hako Hako Land[2]. The Claimant did this following discussions and the completion of a verbal agreement with another company, Glengrow Company Ltd (Glengrow). The Claimant says that Glengrow agreed to purchase timber from him at an agreed rate and to clear Hahakohako and Taketi land to free up those areas for "sustainable agro forestry development".

6. Mr Kinisia says that when the Defendant learnt of his activities on Hakohako and Taketi Land it caused Glengrow to break the verbal agreement reached. That is the basis of his claim. The losses he suffered and for which he now claims, he says, arose from the Defendant’s actions.

7. The Defendant, in its defence and in support of the application now before the court, points to the undisputed licence and logging agreement it has and which has been referred to earlier[3]. It says that the Claimant should not have been given the milling licence or started operations within the area covered by that licence. If the Claimant wished to start his own operations within KLHL then he needed the consent of the Defendant and that of the Timber Rights Grantors. That assertion is in part supported by evidence adduced by the Claimant himself. He has produced two letters from the Principal Forestry Officer at Munda, a Mr Robert Tura, written to the Defendant on the Claimant’s behalf[4].

8. The Claimant’s answer to these points is twofold. First, he says that the milling operations were carried out within the Defendant’s concession area but outside of its "operable area". As a result, the Claimant says the need for the Defendant’s consent did not arise. The difficulty with that argument is that there is no certain evidence before the court, at the moment, as to what is meant by an "operable area". The Defendant does not explicitly deny the existence of operable areas and indeed refers to reserve areas. In a letter by the Defendant to The Principal Forestry Officer at Munda[5] there is also reference to proposed operational areas and previously excluded areas. The term "operable area" does not appear to be alien to both sides but exactly what they both understand the term to mean is unclear. If both sides agree that there is something which can be recognized as an operable area and agree as to what is meant by that, they may still differ as to the consequences of so "designating" the area.

9. Secondly the Claimant also says that he only milled vitex or vasa and that the Defendant was precluded from logging that species. He refers to the logging agreement (and the supplementary agreement) and to s44 of the Forest, Resources and Timber Utilisation Act. The Defendant in its defence filed 14th April 2009 carries a straightforward denial. However that denial is qualified by the letter referred to in paragraph 8 above. The question remains then, was the timber used in the Claimants operation excluded timber as he claims? Even if it was does that mean he could utilise it and if so on what basis?

10. Turning to the application before the court, the test as to whether a claim discloses a cause of action or whether a claim is vexatious and frivolous is not a particularly strenuous one. If the Claimant can establish that there is some question for the court to decide that is an end to it. Not every question raised will necessarily merit a case going to trial but as a general rule if there is a substantial question to be answered, that question goes to trial. Is there a question here? In my view the statement of claim in this case does contain sufficient and weighty issues which require a decision of the court. The Claimant’s case cannot be said to be a strong one but that is not the point. The point is that he has a case.

11. The evidential task before him is quite substantial. In addition to the matters raised earlier, in order to establish his claim he has to explain the timing of his actions. It is obvious from the documents filed so far that he started his milling operation in May 2006. His milling licence was not granted until 22nd June. Meetings involving the trustees of KLHL and the Kindu Kazukuru Management Company to resolve problems were not held until after the milling had started (the meetings in Honiara and Munda on 6th and 15th June). In other words, was he premature in commencing his operations when he did following his verbal arrangement with Glengrow? If so, is he the author of his own misfortune?

12. He also has to establish his "bona fides" as someone who has ownership rights over the land in question. He must also explain the contradictions apparent in his claims about the land and his milling operations. For example, he says in paragraphs 2 and 3 of his statement (sworn 16/3/09) that he is a member of the Kindu Tribe which is a sub tribe of the Kazakuru Tribe and that Taketi and Hakohako land is within KLHL. Later at paragraph 11 he says he felled vasa in land solely owned by his family, "and not land belonging to the Kazakuru Tribe".

13. He also has to establish the exact basis for saying that the Defendant is bound by the actions of Glengrow, if that is how he says the Defendant’s consent was forthcoming. Similarly he has to say exactly how the Defendant is responsible for Glengrow’s actions or on what other basis he is entitled to seek damages from the Defendant for Glengrow’s breach.

14. Finally, he has to explain the reason for the delay from June 2006, when he claims the Defendant caused him financial harm, to January 2009 when he filed his case.

15. He may well be able to deal with these up hill tasks but that is something for the court to decide at a later date. I accept that the Claimant has a case and whilst it may not be the strongest case before the courts it cannot be said to be a vexatious or frivolous one. His claim does disclose a cause of action and in all the circumstances I decline to make the orders sought in the Defendant’s application.

Chetwynd J

^[1] See paragraph 3 of the sworn statement of the Claimant sworn 16/3/2009
^[2] See exhibit JK2 to the sworn statement of the Claimant sworn 16/3/2009
^[3] Paragraph 4 above
^[4] See exhibits JK5 and JK6 to the sworn statement of the Claimant sworn 16/3/2009
^[5] See exhibit TH1 to the sworn statement of Thomas Hii sworn 20/10/2009