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Success Company Ltd v Runikera [2011] SBHC 185; HCSI-CC 507 of 2010 (26 September 2011)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 507 of 2010

BETWEEN:

SUCCESS COMPANY LIMITED
First Applicant

AND:

XIANG LIN (SI) TIMBER LIMITED
Second Application

AND:

PATTESON RUNIKERA
(Representing Gapu Clan of Kolobangara)
Respondent

HEARING: 19 August 2011
RULING: 26 September 2011

RULING

1. This is an application by the Applicants, filed on 25 March 2011, to strike out the Respondent's claim on the grounds that: the Respondent has no locus standi; the claim is prevolous and vexations; the claim does not disclose any reasonable cause of action; and the Claimant pays the First and Second Applicants' costs.

2. The Claimant filed his claim on 16 December 2010. He seeks: damages jointly and severally against the First and Second Applicants for trespass in excess of $1,000 000.00 to be assessed; damages jointly and severally for conversion of trees in access of USD560, 000.00 to be assessed; permanent injunction against the First and Second Applicants, their servants, agents or otherwise from entering the Respondent's land and costs of this claim.

3. Mr. James Rizu deposes that he is a member of the Sungavanga Clan which owns Sungavanga Customary Land (the Land) on Kolobangara Island. He exhibited a diagram^[1] of his geneology, linking his clan to the ownership of the land. The southern portion of the land was registered in 1972. He is the current administrator of Lots 9 and 10 in that registered land. This registered portion is marked with diagonal lines and shaded in orange, while the northern part is still owned in custom and is marked with crosses and shaded in green.^[2]

4. The land has trees for timber on it. So on 21 June 1993, the Gizo/Kolobangara area counsel convened a hearing to determine the persons who were able and entitled to grant timber rights in blocks A B, C, D and E of the Land^[3]. Mr. James Rizu lodged an objection during the timber rights process because his clan had not been consulted before the hearing. As a consequence of that objection, although Steward Evopio, Dani Ita and James Rizu were identified as the persons who could grant timber rights on Blocks A, B and C, the timber rights on these blocks were not granted as pointed out in paragraph (g) of Form II. Only timber rights in respect of blocks D and E were granted because the persons who were able and entitled to grant timber rights in relation to those two blocks were Steward Evo and Dani Ita of the EO tribe. But, on or about 9 November 1993, a peace settlement was convened and attended by Mr. Steward Evopio, Mr. Dani Ita and Mr. James Rizu.

5. In that settlement, they agreed to end any disputes between them in relation to blocks"A", "B" and "C", and instead continue to develop them^[4]. The blocks end up at the sea and there was no need to obtain separate access. That led to the convening of an Extra Ordinary Meeting of the Gizo/Kolobangara Area Council on 22 August 1994, which further endorsed blocks "A", "B" and "C" to come under Kololeana Development Company Limited's logging licences^[5]. On or about 26 November 2010, Kololeana Development Company Ltd executed a logging management and Technology Agreement with Success Company to harvest logs for export in these concession areas^[6].

6. Mr. John Prasad is the General Manager of the First Applicant. He deposes that Kololeana Development Company Ltd holds a valid timber licence which will expire on 22 November 2012. That Mr. James Rizu is a Director of Kololeana Development Company Ltd. On 31 March 2011, the Director of Environment and Conservation granted the Development consent^[7] to the First Applicant to carry out logging operations in the Customary Lands below Lot 1, Lot 2, Lot 9 and Lot 10 on Kolobangara Island which cover the area which the Respondent is claiming. A copy of the said consent was exhibited to the court.

7. The Respondent's case is that he is the trustee, custodian and owner of Gaputu Land, as depicted in green in Schedule A on the Statement of his case. The history and the physical area of his land were raised, among other things, during a hearing before the Chiefs on 30 April 2003.

8. It would seem from the Chiefs' proceeding that a person by the name of Gaputu was a member of the Sungavanga Clan of the Kolobangara tribe. Gaputu was married twice in his life time. His first wife was Ruti, a woman from Lungga. She gave birth to Tura and other children. Then some time later, he got married to Tapo, a woman from Simbo who gave birth to Mark Etubule. The descendants of Gaputu as on the date of the Chiefs hearing were not maternal members of the Sungavanga Clan or the Kolobangara tribe. That means that they do not have maternal land rights over Sungavanga/Kolobangara Customary Lands on Kolobangara.

9. There is maternal from the Chiefs' proceeding that Chief Maekera of the Sungavanga clan demarcated pockets of the Sungavanga Customary Land to Gaputu's sons, Tura and Mark Etubule. The impression I have on perusal of the Chiefs' proceeding and decision, is that, the pockets of land demarcated by Chief Maekera, put together, would be smaller in area, than the area now claimed by the Respondent. This area of land has yet to be transferred to the Respondent in accordance with the Custom and practice on Kolobangara Island, in order for the descendants of Gaputu to secure their customary ownership of them. The view of this court is that, this is the land which the Respondent has called Gaputu Customary Land.

10. Rizu has locus standi in this case. Although he is not a party, he is one of the persons who is able and entitled to grant timber rights in blocks A, B & C which is part of Customary Land claimed by the Claimant. He is a director of the company which holds the Timber Licence which has acquired timbers over the blocks and is a member of the Sungavanga clan which owns Sungavanga land. He is a person who is affected by this case.

11. As the boundary and the physical area of this land demarcated to the Respondent are still uncertain. I will refuse to grant an order to strike out the claim at this point in time.

Order: (1) Customary Chiefs of Gizo/Kolobangara to survey the boundary of the land claimed by the Respondent.

(2) The Report of the boundary survey to be filed in court by the Claimant.

(3) Order to strike the claim is refused.

(4) Parties to pay their own costs.

THE COURT

^[1] 'See map exhibit 'JR2' annexed to Mr James Rizu's Sworn Statement filed on 25 March 2011.
^[2] ibid
^[3] See Form II and map of Blocks in Exhibit JR3 annexed to Mr. James Rizu's sworn statement filed on 25 March 2011.
^[4] See Exhibit "JR 10" annexed to Sworn Statement of Mr. James Rizu filed 2 August 2011.
^[5] lbid.
^[6] See Exhibit "JR12" annexed to the Sworn Statement of Mr. James Rizu filed on 2 August 2011.
^[7] See Exhibit "JP 1" annexed to the Sworn Statement Mr. John Prasad filed on 4 August 2011.