HIGH COURT OF SOLOMON ISLANDS

Case name: 	Success Company Ltd v Huangpu Forest International Investment PTY Ltd	
		
Citation:		
		
Date of decision: 	15 June 2018	
		
Parties: 	Success Company Limited v Huangpu Forest International Investment PTY Limited, Mas Pacific International Ltd	
		
Date of hearing: 	6 June 2015	
		
Court file number(s): 	269 of 2017	
		
Jurisdiction: 	Civil	
		
Place of delivery: 		
		
Judge(s): 	Brown J	
		
On appeal from:		
		
Order:	The claim must fail and is dismissed.
There shall be Judgment for the defendant on the claim.
The defendants counter-claim, shall be a declaratory order that felling licence Tim 2/38 in respect of paru and those other named customary lands is null and void ab initio.
The claimant shall be permanently restrained in terms of the application.
The defendants shall have their costs of the proceedings on the usual scale.
For abundance of caution were interlocutory injunctive orders made adversely affecting these defendants over this land, such orders are discharged.

		
Representation: 	M. Tagini for the Claimant 
M. Bird for the Defendant	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Russkoe v Stirk	

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 269 of 2017

SUCCESS COMPANY LIMITED
Claimant

HUANGPU FOREST INTERNATIONAL INVESTMENT PTY LTD, MAS PACIFIC INTERNATIONAL LTD
1st 2nd Defendant

Date of Hearing: 6 June 2018
Date of Decision: 15 June 2018

M. Tagini for the claimant
M. Bird for the defendants.
Claim for damages for trespass into logging “concession” of the claimant.
Brown J:
1. 	This proceeding was originally an urgent application for ex parte orders to restrain the first and second defendants from entering and constructing access roads through Paru customary land on Guadalcanal. The ex parte nature of the application was refused and the application stood over to be heard on an interparty hearing basis after service on both defendants, apparently companies which may easily be served in accordance with our rules. As a consequence of further argument in August 2017 this court directed the claimant to maintain its urgent application by way of claim. On 1 September 2017 the category “A” claim was instituted, seeking a permanent injunction preventing the defendants from accessing Paru customary land, an order that proceeds of blocks from Paru land be paid the claimants, and damages for trespass.
2. 	By statement of case the claimant says it has felling licence number T I M 2 /38 which includes Paru customary land as its logging concession area. The first defendant is conceded to have a logging licence covering Laokoho and Mataruka customary land situated in land adjacent to Paru customary land. The second defendant is a company with a licence to log. A Technology Agreement over Laokoho and Mataruka land was executed between these two defendants on 27 April.
3. 	In about June 2017 machineries of both the defendants was landed at Paru customary land, the claimed concession area of the claimant and road works were carried out through Paru land without the consent of the claimant, Success. The company consequently claims trespass into its concession area.
4. 	By defence filed 30 October 2017 the defendants deny that the claimant is entitled to any of the relief sought. By paragraph 20 of the defence document the defendants say;
	“as to paragraph 5, the first and second defendants state that they have landed their machineries in that Paru customary land but with the express authority of the landowners as stipulated above. The first and second defendants do not need the consent of the claimant to enter Paru land. The claimant is a private company and it does not own nor is it capable of owning Paru customary land.”
There is a denial of the fact of trespass for “the claimant is a private company and does not own nor is it capable of owning Paru customary land.”
	“A trespass to land is an entry upon or any direct and immediate act of interference with the possession of land: Bullen and Leake-Pleadings 3 Edit. P. 415.
5. 	The tort of trespass encompasses the entry upon land in possession of the claimant, remaining and dealing with such land by placing or projecting any material on it, without lawful justification.
6. 	The very fact of possession is absent, the claim of Success-the plea of right by way of concession to log cannot amount to possession of the land as commonly understood in custom or in law.
7. 	A possible cause of action by way of act of conversion may appear from the case, for that property in the merchantable timber along the access road or log pond perhaps, may be that of the claimant under the concession and such trees or the benefit of such trees have been lost to the claimant by act of these defendants. Such concession rather concerns title or ownership of the timber resource and in this case the defendants denied title to the timber in the claimant.
8. 	Conversion is not a claim of Success however, rather it relies on the act of trespass which must fail.
9. 	By counterclaim the defendants by Paras 30-35 say-
	“30. The landowners have now engaged the first and second defendants to conduct logging in their Mataruka customary land and had allowed the same the use Paru customary land as an access area and for the construction of a log pond. The claimant has no right to interfere with the actions of the landowners and the first and second defendants on Paru customary land.
	31. There has been no subsequent timber rights process conducted by the claimant since 1993 to this date. The landowners no longer wish to allow the claimant to conduct any form of logging activity on their Paru customary land.
	32. The issuance of felling licence number T I M2/38 by the Commissioner of forests to the claimant was done contrary to sections 7, eight, nine, 10, 11 and 12 of the forest resources and timber utilisation act. It is therefore alleged by the first and second defendants that the claimant’s felling licence number T I M 2/38 is a bare licence that does not confer any right of the said claimant to lay claim on Paru customary land as part of its logging concession area.
	33. In that regard the first and second defendants seek a declaratory order that felling licence number T I M2/38 is null and void ab initio.
	34. It is further the first and second defendants contention that the claimant should therefore be permanently restrain from interfering with the lawful logging operation of the first and second defendants over Laokoho and Mataruka customary land. The claimant should also be restrained from interfering with the first and second defendants’ right of access and subsequent use of Paru customary land.”
10. 	In support sworn statements of AndrewTadavalu, John Rave and Sebastine Kurabana were read by Ms. Bird counsel for the defendants. All profess to be land trustees of Lakuili tribe of Guadalcanal, the tribe which owns both Paru and Mataruka customary land.
11. 	It is material to the counterclaim to set out its basis, for the defendant companies rely on the land agreement for access with the land trustees of Paru customary land. The material relevant is in that statement of Andrew Tadavalu:
1)	“I have one of the land trustees of the Lakuili tribe of Guadalcanal. I am the nephew of John Rave. The Lakuili tribe owns Paru customary land. Our tribe also owns Mataruka customary land.
2)	I have had the opportunity to be informed of the contents of the sworn statement of John Parsad filed on the13/10/17 and I wish to assess certain matters mentioned in that sworn statement.
3)	I have seen the document marked “JP-1” and I can confirm that Paru customary land is not included in the list of lands that the claimant company had wished to conduct logging on.
4)	In the document marked “JP-2” the people that had the right to sign timber rights over Paru customary land were Pio Tadavala and myself.
5)	The document marked “JP-4” was the logging agreement in respect of Paru customary land that document was signed by Pio Tadavalu and myself.
6)	The document titled “Notice of Entitlement to grant timber rights” was signed by John Rave and myself on 14th of October 1994. That document was not signed by Pio Tadavalu because by that time he was already deceased.
7)	I wish to further state that paragraph 2 of the logging agreement expressly stated that the company shall commenced logging operations on the land within 12 months from the execution of the agreement.
8)	I hereby confirm that the claimant company had not conducted any logging operation on Paru customary land from 5 September 1993 to this date. It is now more than 24 years since we have signed the logging agreement with the claimant company and the said company had not conducted any logging operation on the said land.
9)	
10)	I also wish to stay that the purported hearing alluded to by the claimant was not even conducted by the Area Council. What I could that had transpired was the late Pio Tadavalu and myself were transported from our village to Tanaro village to sign the documents. Tanaro is Roslyn Dettke’s village and at the material time, Mr. B. Dettke was also residing at that village. There was no timber rights hearing conduct at all. On various occasions, I could recall being transported to Tanaro village to sign the documents that are attached to the sworn statement of John Prasad.”
12. 	Now that statement presumes to address an earlier statement of John Prasad, the general manager of the claimant company, said to have been filed on 13 October 2007 be. No such date matches any sworn statement by John Prasad although reference to the annexures in such statement leaves the court in no doubt Andrew Todavalu was addressing the statement in support by John Prasad actually filed on 11 October 2017.
13. 	Andrew Tadavalu’s statement denied inclusion of Paru land “in the list of lands that the claimant company had wished to conduct logging on.”
14. 	“JP-1” to that statement of John Prasad was copy felling licence T I M 2/38 by the Commissioner of Forests to take effect on 27 January 2016 for three years and in the description of lands affected, is “Paru”. The licensee was named as Success. By “JP-2” a Form 4 agreement for timber rights affecting Paru land was the annexed. The document was expressed to be signed by trustees determined by Gheana Area Council on 2 August 1993.
15. 	Those named were; 1. Pio Tadavalu [deceased] 2. Andrew Tadavalu [signature] and on behalf of the Lakuili tribe, 3. John Rave [signature] 4. Veni Teteo [signature] 5 Basil Biro [signature] 6. Ezekiel Tsida [signature] 7. Victot Adiseni [signature] 8. Mateo Matai [signature] witnessed by someone under stamp of Guadalcanal province.  As can be seen from the inclusion of parts of Andrew’s statement, paragraph 4, he admits that people with the right to sign timber rights over Paru land [apart from the deceased] included himself. The Form 4 [annexed “JP-2”] was dated 13 November 2012. There is no “JP-4” referred to in the statement of Andrew dealing with the notice of entitlement to grant timber rights. The court presumes the statement by Prasad to which Andrew had addressed his responses was but a draft, for the filed sworn statement had no annexes beyond “JP-2”.
16. 	The admitted land trustee able to deal with Paru land was Andrew Tadavalu. Also a signatory to that Form 4 dated 13 November 2012 was John Rave. His sworn statement read in support, said at paragraphs 9-13:
9)	“Furthermore since I was one of the persons entitled to grant timber rights by virtue of the document dated 14 November 1994 I should also be one of the persons to execute the logging agreement with the claimant company. That was also not done at the material time and the logging agreement should not be valid in that respect.
10)	I wish to further state that since the signing of the logging agreement between the Claimant Company and Pio Tadavalu and Andrew Tadavalu on 5 September 1993, the claimant company has not conducted any logging activities on Paru customary land to this very day.
11)	Our lawyer has explained to me that according to paragraph 2 of the logging agreement, the claimant company should have commenced logging operations on Paru customary land not later than 12 months from the execution of the agreement. I can confirm that the claimant company had been in breach of that condition and they had no right to now claims that Paru customary land is part of their concession area.
12)	I can confirm that since the purported timber rights process in 1993 and 1994 the claimant company has not conducted any further negotiation or timber rights hearing in respect of Paru customary land with us, being the landowners. They are merely assuming that they can still claim logging rights over Paru customary land.
13)	We have waited for the claimant company to fulfil its obligations pursuant to the logging agreement dated 5 September 1993 for more than 24 years but it has filed us miserably the claimant company is not entitled to come back after 24 years claiming to have any logging interests over the said land.”
17. 	17. Neither of these deponents has sought to address the fact of the Form 4 which both signed in November 2012 granting timber rights to Success. It is the basis of the defendant counsels legal argument that such agreement signed in November 2012 may be said to be void and of no force or effect, based as it was on a false premise. Repudiation may be assumed by the court when it sees the more recent dealings by these land trustees with the first defendant to allow access through the trustees’ customary land, Paru, acts in direct contradiction of the purported grant of logging rights to Success in November 2012.
18. 	The repudiation has been evidenced as conceded, by the more recent acts of the land trustees, although the legal basis relied upon by Ms. Bird, the ratio in those cases quoted by her in support, are distinguishable on the facts of this case. The agreement for logging, Form 4, was not with a new entity not previously involved but rather with Success, which admittedly was the applicant to log back in 1993. Whether the Form 4 agreement of November is void as asserted however, does not necessarily follow from the bare fact of these defendants’ repudiation.
19. 	The claimants rely on the argument of Mr. Tagini counsel for the claimant company, where he says;
	“4.5 the court is further words to look at the annexure “JP-4” in the sworn statement filed on 13 October 2017. At the first agreement grants of timber rights signed on 5 September 1993 by Pio and Andrew. The agreement for grant of timber rights was renewed on 13 November 2012 was only signed by one of the grantor Andrew Tadavalu as Pio was deceased. That John Rave is listed as one of the persons entitled to grant timber rights, see annexure “JP-2”. In the sworn statement of John Parsad filed on 11/10/2017.
	4.6 Although John Rave is not one of the determined trustees of Paru customary land by Ward 1 and 2 Area Council to sign the agreement dated 2 August 1993, he is accepted by the members of the tribe; that is why his name is listed as one of the entitled trustees after his late nephew,  Pio passed away. He is recognized and accepted by the tribe to become a trustee. Therefore the is and entitled trustee to a room of the logging agreement signed between the claimant and Andrew and John Rave on 5 September 1993 that is why he also signed the grants to timber rights on 14 October 1994 and the renewed agreement for timber rights of 13 November 2012.
	4.7 these trustees are bound to stand by this agreement and know that they are the ones giving their rights to the claimant to operate within Paru land. At it not for their how would licence number T I M 2/38 be issue to the claimant.
20. 	As said previously, this court does not have annexures to John Prasad’s statement beyond “JP-2” but accepts the fact of the agreement for timber rights- Form 4 dated November 2012 was signed by both John Rave and Andrew Tadavalu, both with authority.
21. 	What is apparent and which these two deponents have alluded to, is the disappearance of the foundation of the contract. The November Form 4 specifically relies upon a determination by Gheana Area Council on 2 August 1993. Even allowing for a reasonable time after the issue of any logging licence by the Commissioner of Forests reliant on a landowners agreement (here called “notice of entitlement to grant timber rights” dated the 14 October 1994) for Success to commence logging, nothing had eventuated to date, apart from an original licence to log issued to Success after the latter Form 4 agreement of November 2012.
22. 	The FR & TU Act is silent over such expectation to log period reasonable in particular circumstances following a timber rights hearing but such period in the usual agreement by landowners with a successful applicant normally provides for commencement within 12 months of that agreement. An aggrieved party to any such agreement may rely on the document for action, which may not exceed that general limitation period of six years in the Limitation Act from the date on which a cause of action accrued, the date of the Form 4 or agreement with the “representatives”.
23. 	In this case, a cause of action reliant on the agreement [notwithstanding the argument over its standing], of 14 October 1994 with the cause, breach or specific performance for instance, needed to have been instituted by October 2000. Again reliance on any purported rights stemming from the Area Council determination of 2 August 1993 in favour of this applicant cannot be said to be a right to bind, by subsequent Form 4 after such passage of time.
24. 	The court finds that the land trustees have refuted, by acts of denial, the Form 4 agreement of 2012. That breach of an essential condition to the performance of the earlier contract, entering upon such logging by Success [within at least that 12 month period provided for by the earlier agreement], has given reason to these land trustees to now deny the claim by Success to the right to the fresh logging agreement of November 2012, reliant on the defunct Area Council determination.
	“There are many positive rules of law imposed upon contracting parties which government the whole creation, performance, and dissolution of a contract which are quite independent of the intention of the parties. For my part I see no reason why, in a certain set of circumstances which the court finds must have been contemplated by both parties as being of the essence of the contract and the continuation of which must have been deemed to have been essential to the performance of the contract, the court should not say that when that set of circumstances ceases to exist, that the contract ceases to operate.”
25. 	The essence of the contract following the original timber rights hearing presumed action by the applicant to pursue its application to log by agreement with the authorized “representatives” of the landowners and usually, once approval is obtained from those determined representatives of the land to be affected, a fixed term is part of `any agreement for logging to commence. There can be no presumption the original approval, if given by the “representatives” would extend ad infinitum in the face of the limitation period in the earlier agreement, nor that the Council determination then in favour of Success, not being in the nature of an estoppel by record, may be expected to bind future acts of the customary landowners.
26. 	It is this flawed basis or presumption on which Success now seeks to rely; by expecting the more recent document of November 2012 by these particular landowners to bind the group, tribe or clan. The earlier agreement has expired by effluxion of time in accordance with its provision. The Council determination may then be seen to have expired with the logging agreement, for they are intrinsically linked. There may be said to have been the disappearance of the foundation for any fresh contract on the fact of the earlier Council determination. The set of circumstances allowing Success to pursue logging after the Council determination had passed. The landowners were again free to manage their own resources.
27. 	The difference in contractual understanding between this company, conversant with logging, documentation, terms of an agreement etc contrasts favourably with the understanding to be expected of customary landowners residing on the land without perhaps extensive education or understanding of adopted concepts of contract law and places such latter group at great disadvantage to the company. Some parts of the FR & TU Act reflect this disparity of bargaining power by expecting independent legal advice for the disadvantaged group before any agreement may be accepted.
28. 	In this case in the absence of proper process under the Act, leading to a Form 4 in November 2012, that agreement has no validity in terms of the Act, sufficient for the Commissioner of Forests to issue logging licence no. TIM 2/38. The agreement the court finds, is void and of no effect by reason of the disappearance of any foundation for the contract, said to be the earlier determination by the Area Council. The tribunal determination cannot be treated as a determination of a court of record.  The group or clan in such circumstance, cannot be bound by the tribunal’s determination in 1993. The group clan or tribe is free to entertain other applications in accordance with the Act.
29. 	It would appear the signatures to the November 2012 agreement were obtained by mistake. No Form 4 may stand to bind the custom landowners unless strict compliance with the FR & TU Act can be shown. Custom landowners shall also fall to be bound by the process of the Act. In this case, the court has no doubt no timber rights hearing preceded the agreement of the 13 November 2012.
30. 	For these reasons, the Claim must fail and is dismissed. There shall be judgment for the defendants on the Claim.
31. 	On the defendants counter-claim, there shall be a declaratory order that felling licence TIM 2/38 in respect of Paru and those other named custom lands is null and void ab initio. The claimant shall be permanently restrained in terms of the application. The defendants shall have their costs of the proceedings on the usual scale. For abundance of caution were interlocutory injunctive orders made adversely affecting these defendants over this land, such orders are discharged.
_______________________
ROWN J