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Rima Ltd v Balesi [2010] SBHC 50; HCSI-CC 489 of 2009 (3 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

RIMA LIMITED
First Claimant

AND:

CHOE INTEGRATED DEVELOPMENT
COMPANY LIMITED
Second Claimant

AND:

LETIPIKO BALESI, ABRAHAM HITU,
JOSEPH BATES, CHILLION MAEPIO,
SIMON CHACHABULE, IVAN MINDU,
JONATHAN KEKEVU, JARIUS SALATO
AND ABRAHAM NGATU
Defendants

Date of Hearing: 21 May 2010
Date of Decision: 3 August 2010

Mr. Rano for first claimant
Mr. Ashley for Second Claimant
Mr. Tegavota for defendants

DECISION ON APPLICATION TO
STRIKE OUT COUNTERCLAIM

Cameron PJ:

1 The first claimant is a logging company and the second defendant ("Choe") is the holder of a felling licence A10735 over Choe customary land.

2 They initiated this case against the defendants, who claim to be owners of Nono land which they say was wrongly included in the concession area covered by licence A10735. Thus the defendants were demanding compensation from the claimants for trespassing onto their land. Accordingly, the claimants commenced this claim seek restraining orders against the defendants, but no orders have been made as yet.

3 The defendants filed a defence and a counterclaim to the claim. The counterclaim challenges the whole basis upon which licence A10735 was issued. They assert that at the outset the Form I application of the claimants wrongly included Nono land. They assert that there was inadequate notification of the timber rights hearing, resulting they say in them not attending that hearing. The result of that hearing was a determination issued by the Western Provincial Executive on 30 March 2005, in which it would appear that representatives of the Choe tribe but excluding any of the defendants were identified as entitled to grant timber rights.

4 That decision was appealed by a Samuel Lasi, along with one of the defendants Chillion Maepio (he not having been present at the timber rights hearing). Skinner Rence was also an appellant. The Western Customary Land Appeal Court in a decision dated 14 November 2006 set aside the earlier determination of 30 March 2005, and determined afresh that 6 identified persons were entitled to grant timber rights over Choe customary land. The defendant Chillion Maepio, who had argued that he was the right person to grant timber rights over Guva land, was unsuccessful and was not identified as a person entitled to grant timber rights. Skinner Rence was one of the persons so identified.

5 There has been no challenge to the decision of the Western Customary Land Appeal Court by way of judicial review.

6 Subsequently there was a registration of Choe customary land into the names of trustees, followed by a deregistration and a reversion of those lands into customary ownership. Then followed a timber rights agreement in favour of Choe, which was signed by all those identified by the WCLAC as entitled to grant timber rights except Skinner Rence. Thereafter felling licence A10735 was issued to Choe.

7 As well as the challenge by the defendants to the timber rights hearing process and subsequent determination, their counterclaim also challenges the decision of the WCLAC. They allege that as with the timber rights determination, the WCLAC were presented with and relied on various documentation as to ownership 'which were false documents of ownership constituting fraudulent documents as already ruled by the court' (para 16(a) counterclaim). The reference to the court ruling is a decision of this court dated 16 April 2008 in another case in which the court ordered the quashing of the registration of the Choe land (as referred to earlier) on the basis of "mistakes, if not fraud, shown on these papers".

8 On this basis the defendants assert the timber rights agreement and the subsequent issue of the licence was null and void. Additional grounds are an allegation that the licence ought not to have been issued as Nono land was already covered under an earlier licence A10102 issued to JP Enterprises, and that Skinner Rence did not sign the timber right agreement despite being identified as a rightful grantor of timber rights by the WCLAC.

9 Fundamental to the defendants' position is the argument that the ownership documents relied on by both the Western Provincial Executive and the WCLAC were flawed and ought not to have been relied on. In other words, the defendants contend that they are the true owners of Nono land and therefore ought to have been the persons identified as being entitled to grant timber rights over the land.

10 The claimants' argument is that the only way the defendants can properly attack the basis of the decision of the WCLAC is by bringing an application for a judicial review seeking a quashing order. Under that process, there is course a time limit of 6 months from the date of the decision for bringing such an application, with a power conferred on the court to enlarge that period if substantial justice so requires - Rules 15.3.8 and 15.3.9 Solomon Islands Courts (Civil Procedure) Rules 2007.

11 I agree with the claimants' submission. At the heart of the counterclaim is a challenge to the whole basis of the decision of the WCLAC. In effect, the counterclaim seeks that such decision be set aside or quashed, and the proper process for that is an application for a judicial review.

12 I note from the WCLAC decision that Skinner Rence as an appellant sought to 'be determined as right person to grant timber right on Talumu, Aboro, Siovae, Vuloko, Gaoso and Vasavasara Land'. Thus it may be that he never claimed to be entitled to grant timber rights over Choe customary land, and I do not accept that the defendants have the standing to challenge the timber rights agreement on his behalf when he is not in fact a party to this case. Nor am I satisfied that the defendants have the standing to challenge the issuing of licence A10735 to Choe by alleging licence A10102 issued to JP Enterprises precluded that. The effect of the WLAC decision was that the defendants had no rights in relation to the land subsequently the subject of licence A10735.

13 In the result I dismiss the defendants' counterclaim. I also consider that to allow the claim to remain would be an abuse of the process of the court. The claim seeks a restraining order that has not been prosecuted. With the striking out of the counterclaim no real issue remains to be resolved as between the parties in relation to this proceeding.

14 I therefore also dismiss the claim in its entirety. I made no order as to costs either in relation to the counterclaim or the claim itself.

BY THE COURT

__________________________
Justice IDR Cameron
Puisne Judge