IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

CIVIL CASE NO. 590 OF 2015

BETWEEN:

SAMUEL ROVE KIKO, JOHN WESLEY
ZAMA, DANNY SASA and SENA TERRY
(Representing themselves and the Haforai Tribe
of Rendova Island, Western Province)
Claimants

AND:

TAMANA ASERI and SIKUA ASERI
(Representing themselves and the Sabere,
Vuvure and Bokere Tribes of Rendova Island,
Western Province)
First Defendants

AND:

RIMA LIMITED
Second Defendant

AND:

BULACAN INTERGRATED WOOD INDUSTRIES (SI) LIMITED
Third Defendant

Date of Hearing: 4th January 2016
Date of ruling: 4th January 2016

Mr D. Nimepo for the Claimants
Mr w. Rano for the Defendants (1) (2) and (3)

RULING ON APPLICATION FOR VARIATION OF ORDERS

Faukona, PJ: A regime of restraining ex-parte orders were obtained by the Claimants on 27th November, 2015. It was later varied on 24th December 2015, in particular order 4.

2.	This application is purposely to vary order 6 of original orders of 27th November 2015. That instead of permitting the Claimants to export all the restrained logs being extracted, felled, hauled and derived from Haforai customary land under Kolena Timber Company Limited licence, that be diverted authorizing the Second Defendant to export all such logs. 

3.	The reason for such diverted authority is because it was the Defendants who carried out logging on Sabere, Vuvure, Bokere and also part of Haforai customary land. The concern is about felled and extracted logs from Haforai customary land. Meantime the issue of boundary between Vuvure and Haforai customary lands is yet to be finalised.

4.	The Counsel for the Defendants contends that there has been established precedent (practice) in this jurisdiction that a person who felled logs and expended funds to prepare, fell and extract has the right to sell the logs and proceeds be deposited in a joint trust account in the names of the Counsels representing the parties. 

5.	The Counsel refers to a number of case authorities to support his contention. In the case of Middle Islands Pty Ltd and Others V Kalena Timber Company Limited and others in which the Court of Appeal held that the first, second and third Appellants shall be entitled to export the logs felled by them within the disputed area. In this case, the Appellants were alleged to have been operated illegally. 

6.	The same sentiment was echoed previously in the case of Poa V AG wherein the Court stated on paragraph 18:

"In my judgment, the Respondent is entitled to export the logs. The reasons are it is the Respondents who had incurred the costs of felling the logs. Moreover the Minister had granted the Respondents an exemption and a special permit to fell logs within Moka land. These logs or at least some of them, have been felled as a result of that permit and exemption and it would be most unfair to the Respondents if the Minister were to be allowed to deny them the right to export the logs. The reason that some of the logs may have been illegally harvested by the Respondents is no reason for denying the Respondents the rights to export the logs"

7.	Another Court of Appeal decision which affirms the practice is Tropical Forest Ltd V Pou. On page 4 paragraph 2, the Court stated;

"Equally, a judge is not entitled to ignore the practice which has developed over a number of years in this jurisdiction"

8.	The practice as it now appears and intends to be is part and partial of the law of jurisprudence in this jurisdiction. The Court of Appeal had affirmed the practice and even taken further step to urge the judges not to ignore it. That is fundamentally important. Any interested legal writer who may be keen to start off by attempting to formulate a law of jurisprudence; perhaps this case precedent is one of which must be considered. 

9.	The Counsel advocate for the Claimant seems to lose sight of this fundamental principle and law. His point of contention attributed to his client's claim of trespass, and the fact that his clients had engaged Kalena Timber Company which possessed a valid felling licence to export the logs extracted from the disputed land. Material evidence has shown that application from specific authority to export has been processed. This was done immediately after the first ex-parte restraining orders of 27th November 2015.

10.	I have made it clear during submissions that this is not the time to giggle about the issue of trespass and land dispute. That has been taken care of by the reference case which had been lodged with the Rendova House of Chiefs. What is necessary now is to identify who is entitled in law to export the logs.

11.	The authorities had concluded on the law, that the person entitled to export the logs is the person who incurred costs of felling the logs, whether they are legally or illegally harvested. To deny the harvesters right from exporting is unfair and prejudicial to his operation which he had expended money to extract the logs.

12.	By operation of the law, the Claimants are denied, and have no right or being entitled to extract the felled logs. They have never expended any funds to extract and accumulate the logs though from the land being part of their concession.

Orders:

1.	Order 6 of the interim orders of 27th November 2015, is here by varied.

2.	That the Defendants are entitled to haul and export logs felled from the disputed land and any other log felled from the same which are currently stockpiled at its two log ponds at Rendova Island.

3.	Cost is reserved.

The Court.