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Papangu v Commissioner of Forest [2019] SBHC 39; HCSI-CC 30 of 2018 (17 April 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 30 of 2018

TIMOTHY FRANCIS PAPANGU
Claimant

V

COMMISSIONER OF FOREST
First Defendant

ATTORNEY GENERAL
Second Defendant

AUGUSTINE TARAHA, MICHAEL SARAPIDI, SIRIAKO USA AND LEONARD MARE (Trading as Tabilo Timber Sawmilling
Third Defendant

NEW OCEAN (SI) LIMITED
Fourth Defendant

Date of Hearing: 10 March 2019
Date of Judgment: 17 April 2019

Ms. L Ramo for Claimant
Mr. D Damilea for first and Second Defendant
Mr. W Rano for third and fourth Defendant

RULING

This is a claim for Judicial Review filed by the claimants on 9^th February 2018 seeking the following reliefs;

1. A declaration order declaring that Licence No. A10707 purportedly issued by the Commissioner of Forest to the 3^rd defendant covers Ravuneha land concession area already covered by Licence No.TIM 2/38. The Licence No.A10707 is null and void.
2. A Declaration Order declaring that since Success Company’s felling License No. TIM 2/38 was first in time, the inclusion of the land in dispute on the 3^rd Defendant’s license was invalid and void insofar as the 1^st Defendant has no statutory power under Forest Resources and Timber Utilization Act to grant two Felling Licenses to two separate Companies over the same timber rights over the same land areas.
3. A Declaration Order declaring the 1^st Defendant trespassed onto Ravuneha customary land and had converted trees or logs produced for its own use to the detriment of the Claimants.
4. A Quashing Order quashing the License No. A10707 issues by the Commissioner of Forest to the 3^rd Defendant.
5. A Quashing Order quashing any Harvesting Plan submitted by the 3^rd or 4^th Defendant and approved by the Commissioner of Forest.
6. A Mandatory Order directing the Commissioner of Forest, assisted by Police, to seize the machines, equipment, and tools used by the 3^rd and 4^th Defendants in constructing road and extracting logs from within the Ravuneha customary land.
7. A Prohibition Order prohibiting the Commissioner of Forest or his subordinates from approving endorsing or recommending any application by the 3^rd and 4^th Defendants to market or export or sale by the 3^rd or 4^th Defendants or their agents or persons they enter into contract with for any export or sale.
8. A Prohibition Order prohibiting the 3^rd and 4^th Defendants from continuing with any logging activities within the Ravuneha customary land or within the land areas under dispute, including the roads constructed by them.
9. An Order that the 3^rd Defendant pays to the Claimants full value of the logs felled, harvested, extracted and taken away for sale or abandoned to rot except export duty payable to the Government.
10. Further and others as the courts deem fit.
11. Costs against the 1^st, 3^rd and 4^th Defendants. The claim was served on the defendants and the First defendant and other defendants have filed defences. At this Conference Rule 15.3.17 required the court must consider the matters set out in Rule 15.3.18. The rule states, “The court will not hear the claim unless it is satisfied that:
    • (a) the claimant has an arguable case; and
    • (b) the claimant is directly affected by the subject matter of the claim; and
    • (c) there has been no undue delay in making the claim; and
    • (d) there is no other remedy that resolves the matter fully.

I had heard arguments from the parties and considered the materials filed in the proceeding particularly the sworn statements of the Commissioner of Forest, Mr Revees Moven and the late Siriako Usa as well as the joint sworn statement of Timothy Papangu and Jimmy Osaka. In so doing, I find that the claimants are not directly affected by the subject matter of the claim. I find that there is no longer in existence any valid licence held by Success Company over the Ravuneha customary land. I am satisfied that Licence No. TM 2/38 was bare a Licence and had since expired. On part of the defendants, I find that the 3^rd defendant had locally acquired timber rights over the parcels of land in which they were operating, within Ravuneha Customary Land.
With regard to the claimant's assertion of land ownership, the issue is still unsettled hence there is no clear proof of ownership although this court in an earlier matter concerning the same land ordered that the chief’s decision in favour of the claimant’s deceased maternal uncle remain in force. This is maybe a misnomer as the chief's decision was unaccepted hence ownership remained in dispute and unsettled. For these reasons, I find that the claimant had no arguable case to warrant the matter proceed to trial. The claim is struck out with cost against the claimants to be taxed if not agreed.
Informed right of appeal.

The Court
Justice E Kouhota
Puisne Judge