HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 275 OF 2000

ADO CORPORATION SOLOMONS LTD

–V-

LAGWAEANO SAWMILLING AND LOGGING COMPANY LIMITED AND OTHERS

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

HEARING: 11TH OCTOBER 2001
JUDGEMENT: 12TH OCTOBER 2001

Crystal Lawyers for the Applicant
A & H Lawyers for the Plaintiff
A & A Legal Services for the 1st to 3rd Defendants
Sol-Law for the 4th Defendants

PALMER ACJ: The Applicant, Mathias Kutai seeks to be joined as the Fifth Defendant under Order 17 Rules 4 and 11 of the High Court (Civil Procedure) Rules, 1964 (“the Rules”). He is a member of and representative of the Loforae Tribe, which claims ownership over Loforae customary land (“Loforae Land”). In his affidavit filed in support of his application on 6th September 2001, he states inter alia, that the First and Fourth Defendants had unlawfully entered Loforae Land and felled a total volume of 2,269 cubic metres of logs. He claims that 1,597 cubic metres of logs were included in the shipment of 1,806.999 cubic metres, by the Defendants on 9th March 2001. He has filed as Annexure “MK1” attached to his affidavit, a copy of a letter addressed to the First Defendant in which he registers his complaint of the intrusion into his customary land. In Annexure “MK2”, he files a copy of a statement to the effect that the First Defendant had unlawfully entered into his customary land and thereby committed trespass. Further he states that the First Defendant had unlawfully removed logs from his land. At the bottom of that same document, is a statement from Chaniel Anita, nominated Chairman of the landowners over Lagwaeano Land, to the effect acknowledging the correctness of the Applicant’s statement and conceding that the proceeds from any logs illegally felled and removed from Loforae Land should be paid to the Applicant for and on behalf of his tribe. Page 2 of the same document contains an agreement between the First Defendant and the Applicant conceding the same. Annexure “MK3” is a copy of the minutes of a meeting between the Applicant and the Lagwaeano landowners. This also confirms or supports the claims of the Applicant concerning logs felled and removed from Loforae Land. 

Annexure “MK4” is the copy of the letter from the Comptroller of Customs and Excise granting 100% duty remissions to the Applicant for up to 2000 cubic metres of logs. Annexure “MK5” is an important document as it shows that the Applicant had been paid all the duty remissions due to him as alleged in paragraph 5 of his affidavit filed 6 September 2001. It showed that a total of 1,727.138 cubic meters of logs worth the value of $148,585.68 in duty remissions had been paid to the Applicant.

The Applicant claims however that there are other dues from the 1,727.138 cubic metres of logs felled and sold, and I understand this to mean over and above the duty remissions already paid to his tribe, which is yet to be paid. At paragraph 16 of his affidavit the Applicant states:

“My tribe and I are not interested in the issues pertaining to the above matter except that we are only interested in the proceeds of our 1,597 cubic meters of logs that were illegally felled from our land and were sold by the Defendants.”

The Applicant’s claim in essence therefore is a claim based on trespass and conversion. In reality the so-called dues claimed by the Applicant over and above the payments already received would appear to be a claim for damages for trespass and conversion. The Plaintiff’s claim on the other hand is based on an agreement it entered into with the First Defendant for purposes of carrying out logging on Lawaeano land. Whilst those claims might appear to be different, there is a common thread. They tie in with the proceeds of sale of the 1,806.999 cubic metres of logs currently under restraining orders of this Court. The Plaintiff claims it is entitled to inter alia 50% of the sale proceeds from the logs felled on Lagwaeano land, which had been financed by it. The problem with the Plaintiff’s claim however, as against the Applicant’s claim is that there is material before me which shows that the bulk of the logs felled and removed by the First Defendant were not from Lagwaeano land but from Loforae Land. The Applicant therefore would appear to have a prima facie defence against the claim of the Plaintiff as to the proceeds of the logs conceded to have been felled from Loforae land. If the Plaintiff fails in its claim and the Applicant succeeds in its defence for instance, it may be entitled, to be paid the dues from the logs felled from its land. To that extent I am satisfied it would be necessary in the interest of justice and to enable the Court “effectually and completely to adjudicate upon and settle all the question involved in the cause or matter” (Rule 11 of Order 17 of the Rules), that the Applicant be joined as the Fifth Defendant. 

This would entail further directions to take the joinder of the Applicant into account. Accordingly I make further directions as follows:

1.	That the Writ and Statement of Claim in this action be amended and served on the Applicant within 7 days.

2.	A Statement of Defence to be filed within 7 days.

3.	Discovery and inspection within 7 days thereafter.

4.	The matter to be listed for trial thereafter.

On the question of discontinuance of the third and fourth Defendants, it being not objected to by them save on the question of costs, I grant the order for discontinuance of action against the third and fourth defendants and order that their costs be paid by the Plaintiff to be taxed if not agreed.

ORDERS OF THE COURT:

1.	Grant order for the joinder of the Applicant as the Fifth Defendant for and on behalf of the Loforae Tribe.

2.	Direct that the Writ and Statement of Claim be amended and served on the Applicant within 7 days.

3.	The Applicant files statement of defence within 7 days.

4.	Discovery and inspection within 7 days thereafter.

5.	The matter to be listed for hearing by the plaintiff thereafter.

6.	The action against the third and fourth defendants is discontinued forthwith with costs to be taxed if not agreed.

7.	Costs in the cause.

THE COURT.