HIGH COURT OF SOLOMON ISLANDS

Civil Case No.18 of 2005

KALENA TIMBER COMPANY LIMITED
AND DONALD ODIKANA LEZUTUNI

-v-

EDDIE MAENA KIDOE,
MARVIN LEZUTUNI AND GWEN ABANA
AND COMMISSIONER OF FORESTS,
RERESARE DEVELOPMENT COMPANY LIMITED,
AND JACK LAGOBE, DALCY TOZAKA, TEDDY
PAVO, EDDIE KIRIA, ALLAN GILAI
AND MAKIVA OKAVAKI

Hearing: 18 November 2005
Ruling: 15 March 2007

G Suri for the Plaintiffs
A N Tongarutu for the First Defendants
M Ipo for the Second Defendants
J Katahanas for the Third and Fourth Defendants

RULING

Mwanesalua, J: 

1.	This is an application by the First Defendants to strike out the Plaintiffs’ writ of summons and statement of claim filed on 19 January 2005 and the Amended statement of claim filed on 1 July 2005 against the Defendants. The application is by way of summons filed on 8 February 2005, as amended on 1 March, 4 March and 30 August 2005 respectively.

2.	Amended summons of 30 August 2005. 

The First Defendants seek the following orders in their summons of 30 August 2005:

"1.	That the Plaintiffs’ writ of summons and statement of claim in this matter filed against the Defendants on 19 January 2005 and the Amended statement of claim filed on 1 July 2005 do not disclose any reasonable cause of action against the Defendants and/or is frivolous and vexatious and should be struck out or dismissed.

2.	The Second Plaintiff has no locus standi and his statement of claim should be struck out or in the alternative he is barred from taking any legal suit against the Defendants.
3.	The Plaintiffs to refrain from paying monies in connection with this matter to members of the Late Silas Lezutuni’s clan, their agents, associates spokespersons and in particular to David Gina.

4.	That the Plaintiffs, their servants, agents or associates be restrained from disturbing the logging activities and operation of the First Defendants jointly with Delta Company Limited on Veala Reresare Land and also to be restrained from causing disturbances in whatever form and manner to the exportation of round logs extracted from Veala Reresare Land.

5.	Costs incidental to this application to be paid by the Plaintiffs.

6.	Any other orders the Court deems fit to make."

Background

3.	The First Plaintiff operates a logging business in the Western Province. The Second Plaintiff is a member of the Veala Reresare Tribe (the Tribe) of Vella La Vella Island in the Western Province. The First Defendants are also members of this Tribe who carry on business in 2004 under the business name "Reresare (Veala) Development" which later changed its name to "Veala Reresare Development Association" on 18 January 2005. This Tribe claims customary ownership of Veala Reresare Land (Veala land) on Vella La Vella Island. In April 2004 the Tribe authorized the First Plaintiff to apply for a logging licence over Veala Land.

4.	Acting on this authority, the First Plaintiff, lodged a Form I application on 6 April to the Second Defendant for approval to negotiate for the acquisition of timber rights on Veala Land. The Second Defendant approved the application and sent it to the Provincial Secretary of Western Province (the Secretary) for purposes of sections 7 and 8 of the Forest Resources and Timber Utilisation Act (the FRTU Act). The Western Provincial Executive (WPE) convened on 17 July 2004 to consider the application and made its determination on 18 July 2004. The WPE determined that the persons lawfully entitled to grant timber rights on Veala land were Eddie Maena Kidoe, Marvin Lezutuni, Frank Ninamo, David Kute, Lewin Luluku, Donald Odikana Lezutuni and Gwen J. Abana. The First Plaintiff executed a Timber Rights Agreement (the First Agreement) with fifteen members of the Tribe on 17 November 2004 on the advise of the Second Defendant. Four of the signatories were persons lawfully able and entitled to grant timber rights over Veala land. They were David Kute, Frank Ninamo, Harry Luluku and Donald Odikana Lezutuni.

5.	On 16 November 2004, Eddie Maena Kidoe, Chairman of Veala Reresare Development Company, wrote a letter to the Second Defendant. He enclosed a Form I application and a Form II Determination. He also informed the Second Defendant that the Tribe was no longer interested in signing any Timber Agreement with the First Plaintiff as the Logging Licence would be issued to their own company, Veala Reresare Development Company. The Tribe executed a Timber Rights Agreement (the Second Agreement) with Reresare (Veala) Development Company on 14 December 2004 and the Second Defendant issued logging licence No. A10236 to Veala Reresare Development Association on 21 December 2004.

Case for the First Defendants

6.	The case for the First Defendants is that the Plaintiffs’ writ of summons and statement of claim filed on 19 January 2005 and the Amended statement of claim filed on 1 July 2005 do not disclose any reasonable cause of action; that the action was frivolous and vexatious; that the Second Plaintiffs has no locus standi to sue the Defendants and that the Second Plaintiff is barred from taking any legal action against the Defendants. The First Defendants thus urges the court to exercise its discretion to strike out the Plaintiffs’ writ of summons, statement of claim and Amended statement of claim summarily under order 27, rule 4 of the High Court (Civil Procedure) Rules, 1964 (the High Court Rules).

Case for the Plaintiffs

7.	The Plaintiffs contend that they have locus standi to sue the First and the Second Defendants. Further, they contend that their writ of summons, statement of claim and Amended statement of claim disclose reasonable cause of action; the First Plaintiff has equitable interest over Veala land and the trees on it and that the Second Plaintiff has rights and interests over the same land.

Issues for consideration in this application

8.	The issues for consideration in this application are: whether the Statement of Claim filed on 19 January 2005 and the Amended statement of claim filed on 1 July 2005 against the Defendants disclose no reasonable cause of action; whether such a cause of action if any is frivolous and vexatious; whether the Second Plaintiff does not have locus standi to sue the First and the Second Defendants; whether the First Plaintiff has equitable interest over Veala land and the trees thereon and whether the Second Plaintiff has proprietary rights on that land.

9.	It is acceptable in this jurisdiction that, where an application to strike out is based on the grounds of no reasonable cause of action and/or the action is frivolous, vexatious or an abuse of the process, the court can look at the pleadings, the particulars and affidavits to reach its decision.

	Statement of claim and Amended statement of claim

10.	For purposes of this application, the court would only consider the writ of summons and the statement of claim filed on 19 January 2005, and not the Amended statement of claim filed on 1 July 2005. This is because no leave was granted by the court to amend the statement of claim and thereby to file the Amended Statement of Claim. 

Statement of Claim and its particulars filed on 19 January 2005

11.	The statement of claim and its particulars show that the First Plaintiff carries on logging business in the Western Province. On 2 April 2004, the Tribe, including the Second Plaintiff and the First Defendants, agreed to engage the First Plaintiff as a Logging Contractor. On 3 April 2004, the Tribe, including the Second Plaintiff and majority of the Tribe approved the First Plaintiff is to hold the logging licence. On 4 April 2004, the appointed Trustees of Veala Land Holdings, including the Second Plaintiff and the First Defendants authorized the First Plaintiff to apply for a logging licence over Veala Land. By virtue of the said decisions and authorization by Tribe and its Trustees, the First Plaintiff applied for a logging licence in the prescribed Form I, which application was lodged at the office of the Second Defendant on 7 April 2004. On 7 April 2004, the Chief Forestry Officer forwarded the First Plaintiff’s application to the Secretary for further processing pursuant to Sections 8 and 9 of the Act (FRTU Act). On 17 June 2004, the WPE convened to consider the First Plaintiff’s application. On 18 June 2004, the WPE determined that Veala Landowners, which included the second Plaintiff and the First Defendants were the lawful persons for the disposal of timber rights over Veala Land. The WPE also determined that the First Plaintiff was mandated by the Veala Reresare Landowners to apply for a Logging Licence. On 20 July 2004, the WPE produced and published the determination of the WPE in the prescribed Form II. On 10 September 2004, the First Plaintiff paid the sum of SB$30,194-00 to the Western Provincial Government, being the fees charged for the timber rights hearing. By copy of a letter dated 15 November 2004, the Chief Forest Officer Operation advised the First Plaintiff to proceed with the execution of First Agreement. On or about 17 November 2004, the First Plaintiff executed the First Agreement with the Trustees and other Resource Owners of the Tribe. The Second Defendant granted Timber Licence No. A10236 to Veala Reresare Association covering Veala Land on 21 December 2004. The First Plaintiff claims that the grant of the Licence to the First Defendants who trade as Reresare/Veala Development, Veala Reresare Development Association and Reresare (Veala) Development Company denied it of its equitable interests in the same land and the trees thereon. On 2 and 3 January 2005, the Tribe met to discuss the tribe’s commitment to logging. It was resolved by the majority of the members of the tribe that the First Plaintiff should apply for the Logging Licence.

12.	The Second Plaintiff’s statement of claim shows that he was aggrieved by the conducts of the Second Defendant. He claims that the granting of the Logging Licence to Veala Reresare Development Association violated the authority, guarantee, and contract which the majority of the Tribe made with the First Plaintiff. Further, he claims that: the Second Defendant did not approve the First Defendants’ Form I application; there was no timber rights hearing on the Form I application by Reresare (Veala) Development Company; the Form II relied upon by the First Defendants was a result of the determination of the First Plaintiff’s Form I application; the Second Plaintiff himself as a person determined by the WPE and named in Form II did not execute the First Defendant’s Second Agreement; the First Defendants’ Second Agreement was invalid; and the procedure which the Second Defendant followed to grant Timber Licence No. A10236 to Veala Reresare Development Association was irregular or contrary to the provisions of the FRTU Act;

	Arguments and Considerations

13.	Locus standi of the Plaintiffs

The First Plaintiff relies upon the execution of the First Agreement with David Kute, Frank Ninamo, Harry Luluku and Donald Odikana Lezutuni who were persons lawfully enable and entitled to grant timber rights plus eleven other Customary Owners of Veala land on 17 November 2004. Further, the First Plaintiff was assured by the Tribe that it would be the logging contractor and the holder of the logging Licence. These assurances were then followed by the approval of First Plaintiff’s Form 1 application by Second Defendant; the determination and acceptance of the application by the WPE; the payment of $30,194.00 to the Western Provincial Government to cover the Timber Rights hearing expenses and the grant of timber rights to the First Plaintiff. Paragraph 8 of the pleadings shows circumstances pertaining to equitable interest. In the view of the court, these matters are sufficient to confer locus standi on the First Plaintiff to sue the First and Second Defendants. The question on whether its action would succeed is best left to the trial judge to decide. On the other hand, the Second Plaintiff has proprietary rights and interests over Veala land. Further, the Second Plaintiff is a partner in Reresare (Veala) Development. He pleads that the First Defendants did not obtain his lawful authority to apply for the logging licence. He is entitled to protect his interests in this action. Paragraph 3(a) of the statement of claim pleads that the Second Plaintiff is a registered proprietor of Reresare (Veala) Development.

Cause of Action

14.	The Plaintiffs contend that the First and the Second Defendants did not comply with the procedure for obtaining and granting a logging licence under the FRTU Act. The Plaintiffs plead in paragraph 9 of the Statement of Claim that the obtaining or the granting of the licence was irregular or contrary to the provisions of the FRTU Act. The First Defendants’ Form I application was lodged to the Second Defendant on 16 November 2004. This application was finally approved by the Second Defendant on 14 December 2004. This occurred on the same day when the Tribe and Reresare (Veala) Development Company signed the Second Agreement over Veala Land. The First Plaintiff acted to its detriment upon reliance on the conducts of the First Defendants and the Tribe. Such conducts induced the First Plaintiff to apply for the logging licence over Veala Land; pay the trimber rights hearing expenses to the Western Provincial Government and signing the First Agreement with the Tribe. In addition, there are claims of irregularities in Form II and Form 3. First, the Form II seem to reflect that the Tribe and the First Plaintiff were the joint Applicants. There is evidence that the WPE only heard and determined the First Plaintiff’s application. Second, Form 3 declares that the Second Plaintiff was one of the persons giving timber rights over Veala land to Reresare (Veala) Development Company. This did not reflect the actual position because there is evidence to show that the Second Plaintiff did not sign the Second Agreement (Form 4). Also, there are questions on alleged irregularities in relation to First Defendants’ Form I application; the issue of the Logging Licence by the Second Defendant; the claim of the First Plaintiff of it equitable rights over Veala land and the trees on it and the validity of the First Agreement. Many of these points have not been considered in the case of Stephen Veno and Gordon Young (Unreported High Court Case No. 152 of 2003). There is cause of action, or questions fit to be decided by the trial judge in this action.

Second Plaintiff barred from taking suing the First Defendants

15.	The First Defendants allege that the Second Plaintiff is barred from suing the First Defendants. They point to a Statutory Declaration in support of their contention. This statutory declaration was signed by Eddie Maena Kidoe, Marvin Lezutuni and Donald Odikana Lezutuni at Honiara on 6 February 2004. The contents of this document as compared with the conducts of the Tribe with the First Plaintiff is strange and inconsistent. Whilst its paragraph 2 and 3 say that on 27 January 2004 the Tribe approved a logging joint venture between Reresare Veala Development Company and Delta Timber Limited (DTL), and that on 4 February 2004, the Trustees approved DTL’s application to acquire timber rights over the Veala Land, the Tribe acted otherwise on 2, 3 and 4 April 2004. That is to say, on 2 April the Tribe decided that the First Plaintiff would be the Contractor. Then on 3 April, the Tribe decided that the Logging Licence would be held by the First Plaintiff and then appointed the Trustees on the same day, which included Eddie Maena Kidoe, Marvin Lezutuni, Frank Ninamo, David Kute, Lewin Kidoe, Harry Luluku, Donald Odikana Lezutuni and Murray Meso. And then on 4 April, the Tribe authorized the First Plainitff to apply for the Logging Licence. This evidence seem to cast doubt on the veracity of the Statutory Declaration. There seem to be conflict of evidence regarding this document. Its veracity should be tested, assessed and weighed by the judge during the trial. Whether the statutory declaration would bar the Second Plaintiff from suing the First Defendants is to be fully considered at the trial.

Conclusion

16.	The finding of the court is that the Plaintiffs have reasonable cause of action; that cause of action is not frivolous and vexatious; that the Plaintiffs have locus standi to sue the First and Second Defendants. And that the Second Plaintiff is not barred at this time from taking legal action against the First and Second Defendants. That there are questions fit to be considered by the Judge at the full trial of this action. The First Defendants’ application is refused. It is accordingly dismissed. The First Defendants are to pay the Plaintiffs costs of this application. I order accordingly.

Francis Mwanesalua
Puisne Judge