high court of solomon islands

Civil Case Number 162 of 2007

Jacob Vozoto, Willie Pitakia, Nelson Kuti, 
Gibson Dereveke, Mark Pitakaji, Joshua Kalevalaka, 
Kelvin Lubara, Belden Vore and Hindi Leketo (Applicant)

-V-

Graham Rupakana and Others (First Respondent)

And

Delta Timber Limited (Second Respondent)

And

The Attorney-General (Representing the Commissioner of Forests) (Third Respondent)

HIGH COURT OF SOLOMON ISLANDS
(Palmer CJ.)

Civil Case Number 162 of 2007

Date of Hearing:	19th October 2007
Date of Judgment:  	4th March 2008

Suri’s Legal Practice for the Applicants
Watts and Associates for the First Respondent
P.T. Legal Services for the Second Respondent
No appearance by the Attorney-General

Palmer CJ.:

The issue in this case is whether the timber rights agreement executed between Graham Rupakana (“Rupakana”), Keqa Poloso (“Poloso”), Abel Qoravalaka, Ken Luaboe and Roniolo Tanakasu of the one part and Delta Timber Limited (“Delta”) of the other part, dated 8th February 2006, valid or not?  The applicants say that if it is invalid then the licence (number A10302) issued on 3rd March 2006 in favour of Delta in turn is invalid.

The applicants say that according to the determination of the Choiseul Provincial Executive (“CPE”) made on 7th May 2003 in respect of BOROVAI customary land (“Borovai land”), thirteen representatives were identified.  These included the nine applicants, Jacob Vozoto, Willie Pitakia, Nelson Kuti, Gibson Dereveke, Mark Pitakaji, Joshua Kalevalaka, Kelvin Lubara, Belden Vore and Hindi Leketo; and Rupakana, Poloso, Penrose Parepare and Galo Nono.  

The applicants say that when the standard logging agreement (timber rights agreement) was signed between Delta and the landowners of Borovai land, only Rupakana and Poloso signed the agreement together with three other landowners who were not included in the determination by the CPE.

The applicants argue that the timber rights agreement therefore is fatally defective and ought not to have been endorsed by the Commissioner of Forests.  The timber licence issued over Borovai land in turn is defective.

Mr. Toito’ona for Rupakana seems to raise two grounds in defence to the claims of the applicants; namely that the issues now raised had been dealt with in previous cases and that the execution of the timber rights agreement by Rupakana in any event was effective, the agreement good in law and should not be interfered with by this court.

Is there a requirement in law that all thirteen persons identified should sign the timber rights agreement?  

The Forest Resources and Timber Utilisation Act (“the Forest Act”) requires the CPE to discuss and determine with the customary landowners of Borovai land inter alia, the identity of the representatives of Borovai land who are lawfully entitled to grant timber rights over their land.  Once that process had been completed through to the next stage, including any hearings of the Customary Land Appeal Court of Choiseul in respect of the appeals of any persons that may have been aggrieved by the decision of the CPE, those persons identified may then proceed on to execute the timber rights agreement.  Without their authority, no timber rights agreement can be transferred, for they are the persons and represent all the persons, lawfully entitled to grant timber rights over Borovai land.  Their power to execute the timber rights agreement derives from their rights as the persons determined by the CPE who could grant timber rights over Borovai land.  The determination of the CPE therefore is critical to the ability of Delta to secure timber rights and in turn a licence to carry out logging in Borovai land.

In this case, it is clear none of the applicants had given their authority to grant timber rights over Borovai land to Delta.  The Form 3 in respect of Borovai land should never have been issued by the Provincial Secretary, Nixon Qurusu (“Qurusu”) when none of the applicants had signed the timber rights agreement.  Qurusu should have cross-checked the names in the determination (as set out in the Form 2) with the signatories to the timber rights agreement before endorsing the Form 3.  His failure to do so is tantamount to dereliction of duty.  In turn, the Commissioner of Forests should have done the same and satisfied himself that the right persons had signed the timber rights agreement before issuing the licence.  Had he exercised diligence, he would have picked up the irregularity in the signatories to the timber rights agreement.

The determination of the CPE is a valid determination, binding in law and capable of creating rights.  It ought not to have been brushed aside so lightly by the Provincial Secretary or the Commissioner of Forests.  They cannot by-pass or overlook decisions that have been arrived at by due process of law.

Further, it is important to appreciate that the timber rights agreement must necessarily conform to that Form of Agreement for Timber Rights in the Forest Resources and Timber (Prescribed Forms) Regulations (“Prescribed Forms Regulations”) under the Forest Act.  Clause (1) of Form 3 of the prescribed form requires that the agreement shall be signed by all parties specified in paragraph 3 of Form 2 of the Schedule to the Prescribed Forms Regulations.  Any failure therefore by any party named to sign the agreement is a failure to comply with the requirements of the Form and Regulation and must result in the invalidity of the timber agreement.

The timber rights agreement executed over Borovai land dated 8th February 2006 accordingly is fatally flawed and incapable of conferring timber rights to Delta.  

Timber rights, apart from land, are one of the most valuable commodities that any landowner in Solomon Islands possesses and therefore should never be treated with haste and lightness.  They must be given the attention they deserve by ensuring that all statutory requirements, formalities and processes are strictly adhered to and complied with.  

The issue of res judicata raised by Counsel for Rupakana does not apply in this case for the issue now raised in this case was never raised in the other cases, Willie Pitakia v. Rupakana & Others (HCSI-CC 91/03) and John Nige and Others v. Rupakana and Others (HCSI-352/06).  The parties also in those other cases were different and did not represent the parties and their interests in this case.  I dismiss that defence accordingly.

The second issue raised that the timber rights agreement is enforceable as against Rupakana and Poloso overlooks the glaring fact that they are but only two of the persons determined as the persons representing all the landowners who have right to grant timber rights over Borovai land.  

I answer the question raised in paragraph 1 of the Originating Summons filed 3rd May 2007 in the affirmative and grant subsequent declarations sought as follows:

Orders of Court:

1.	Grant declarations as follows:

(i)	that the timber rights agreement dated 8th February 2006 is invalid; and
(ii)	accordingly the licence issued to Delta is in turn invalid.

2.	That the costs of the applicants to be borne by all the Respondents in equal shares.

The Court.