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Sevona Development Co Ltd v Zirunangonango Land Owning Group Co Ltd [2024] SBHC 142; HCSI-CC 392 of 2021 (12 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 392 of 2021

BETWEEN:

SEVONA DEVELOPMENT COMPANY LIMITED
First Claimant

AND:

GREEN TREE (SI) COMPANY LIMITED
Second Claimant

AND:

CHIEF HARRY TRUEMAN BOE
Third Claimant
(Representing members of his Maqatamalo clan of Tasolomo tribe)

AND:

CHIEF ELIJAH PITAKERE
Fourth Claimant
(Representing members of his Tasolomo tribe)

AND:

ZIRUNANGONANGO LAND OWNING GROUP COMPANY LIMITED
First Defendant

AND:

SUPREME RESOURCES LIMITED
Second Defendant

AND:

EZRA POLOSO
Third Defendant
(Representing all timber rights Trustees of Zirunangonango Customary Land)

CIVIL CASE NO. 276 OF 2022

BETWEEN:

GREEN TREE (SI) COMPANY LIMITED
First Claimant

AND:
SEVONA DEVELOPMENT COMPANY LIMITED
Second Claimant

AND:

LEDILY BOSELALU
Third Claimant
(Representing Tasolomo Land Trustees of Choiseul)

AND:

ZIRUNANGONANGO LAND OWNING GROUP LIMITED
First Defendant

AND:

SUPREME RESOURCES LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant
(Commissioner of Forest)

Date of Hearing: 14 October 2024
Date of Decision: 12 November 2024

Counsel
Ms N Tongarutu for the First, Second and Third Claimants in CCN 276 of 2022 and for the First, Second, Third and Fourth Claimants in CCN 392 of 2021.
Mr J Kaboke for the Third Claimant in 392 of 2021.
Mr D Marahare for the First, Second and Third Defendants in CCN 392 and for the First and Second Defendants in CCN 276 of 2022.

Lawry; PJ

RULING ON DETERMINATION OF A PRELIMINARY ISSUE

1. On 14 July 2021 the Claimants brought a claim in CCN 392 of 2021 against Zirunangonango Land Owning Group Company Ltd [‘Z LOG’], Supreme Resources Limited [‘SRL’] and Ezra Poloso, who represented all the timber rights trustees of Zirunangonango customary land. That claim sought the following orders:
   • “1. Declaratory orders that:
   • (a) The common customary boundaries of Zirunangonango, Tasolomo and Lepokasi customary lands had been settled in CLAC(w) cases 1,2 and 3 of 2003 and is binding upon the Zirunangonango and Tasolomo tribes and Maqatamalo clan;
   • (b) Timber rights over Lepokasi and Tasolomo customary land have been duly transferred to the First Claimant by the Third and Fourth Claimants thereafter all timber rights processes are complied with and are covered by felling licence No A101902;
   • (c) The First, Second and Third Defendants have no rights in law to enter and conduct logging activities within Lepokasi and Tasolomo customary lands, Choiseul, Choiseul Province;
   • (d) The First and Second Defendants have no rights in law to carry out any logging operations in Choiseul Province;
   • (e) The First and Second Defendants full scale logging operations within Lebokana and Qunbiku Customary lands are unlawful;
   • (f) The First and Second Defendants have trespassed into Lepokasi and Tasolomo customary land owned by the Third and Fourth Claimants and covered by the First Claimant’s Felling Licence No A101902 and conducted logging operations therein unlawfully.
   2. A permanent restraining order against the First, Second and Third Defendants, their Servants, Agents and or persons acting under their authorities not to enter and conduct all forms of logging activities within Lepokasi and Tasolomo customary land;
   3. An order that all proceeds of all round logs harvested and exported from Lepokasi and Tasolomo customary lands shall be paid out to the Trustees of Lepokasi and Tasolomo customary lands respectively;
   4. An order directing the Commissioner of Forests to cancel the First Defendant’s Felling licence No A101766;
   5. Environmental damages to be assessed;
   6. Aggravated and Exemplary damages;
   7. And further or other orders that the Court deems just; and
   8. Costs indemnity”
2. A second set of proceedings was commenced on 19 July 2022 being 276 of 2022. Those proceedings listed the First Claimant as Green Tree (SI) Company Limited [‘Green Tree’], Sevona Development Company Limited [‘Sevona’] as the Second Claimant and Ledily Boselalu (representing Tasolomo Land trustees of Choiseul Province) as the Third Claimant. Those proceedings were brought against Z LOG and SRL and the Commissioner of Forests.
3. The Claimants have brought an application seeking an order that the issue of the location of the customary land boundary between Zirunangonango, Lepokasi and Tasolomo customary lands is ‘res judicata’. They also seek a variation of an order perfected on 15 September 2022 to allow the Commissioner of Forests to resolve the overlapping of concession boundaries for felling licences A101902 and A101766.
4. The application is made in reliance on rule 12.11 which permits the Court to hear argument on preliminary issues. The rule provides:
   • “The Court may hear legal argument on preliminary issues of fact or law between the parties if it appears likely that, if the issues are resolved, the proceeding or part of the proceeding will be resolved without a trial, or the costs of the proceedings or the issues in dispute are likely to be substantially reduced”
5. In a ruling made on 2 September 2022 the Court consolidated the proceedings in CCN 276 of 2022 with those in CCN 392 of 2021. There are competing felling licences and the concession areas for them overlap. On 15 September 2022 the Court made an order for the parties to resolve the overlapping in the appropriate forum. The Claimants contend that the appropriate forum is the Commissioner of Forests while the Defendants contend that the chiefs should determine the issue and have made a referral to the Kirugela House of Chiefs.
6. Proceedings on the issue of the boundary and encroachment was dealt with by the Varisi House of Chiefs following a referral in CCN 392 of 2021. That ruling is awaiting the hearing of an appeal to the Lauru Local Court. At the time of the House of Chiefs decision the two High Court cases had yet to be consolidated.
7. The Claimants submit that the boundary between the three customary lands has been established since 1945 and was adopted in the Western Customary Land Appeal Court in civil cases CLAC 1, 2 and 3 of 2001.
8. The litigation between the parties arises from two felling licences. The Defendants rely on felling licence A101766 which authorised logging operations of Zirunangonango customary land. The Claimant are also involved in the logging industry and rely on felling licence A101902.
9. Each felling licence has its own concession areas. A felling licence is an authorisation for the holder of that felling licence and those claim through such a person or business, to conduct a logging operation. That is quite separate from the issue of trespass. A licence does not over-ride a timber rights agreement with the owners of the land where the timber is located. The concession areas of each licence appear to overlap. This arises from a disagreement on the location of the boundary between lands adjoining each other.
10. The parties agree that there was a decision on the boundaries between their respective customary land from as long ago as 1945. On 19 August 2003 the Western Customary Land Appeal Court [‘WCLAC’] gave a ruling between those from the Claimants’ line and those from the Defendants’ line.
11. The WCLAC was concerned with an appeal from the Provincial Executive’s finding at a timber rights hearing. In the course of the decision the WCLAC referred to submissions made by each of the parties and at page 9 the Court set out its findings and at page 10 its determination. At paragraph 3 of the determination the WCLAC recorded the following:
    • “The boundaries of Lepokasi, Tasolomo and Zirunangonango as concerning each other be maintained as established since 1945.”
12. Unfortunately the 1945 ruling has not been produced. The Claimants invite me to conclude that the boundary is as set out by the WCLAC, when they had set out the evidence relied on in the appeal. It may well be that the boundaries are as set out in the WCLAC decision under the heading Zirunangonango on page 9. However, this is not necessarily consistent with other material filed. Located in the further sworn statement of Berry Poquesopa filed in civil case 276 of 2022 on 17 August 2022 at appendix 4 is what is said to be a translation of the description of the boundary from the 1945 decision. Mr Marahare of counsel for the Defendants relied on this document as setting out the true boundary and that view received support from Mr Kaboke of counsel for the Third Claimants in 276 of 2022.
13. Mr Marahare does not dispute that the WCLAC decision is binding on the Defendants but submits that the real issue is ‘identifying what the true boundary was as a result of the 1945 decision’. Mr Ofanakwai has filed submissions on behalf of the Commissioner for Forests and says at paragraph 7 “The Third Respondent [‘ie the Commissioner of Forests’] says that the boundary adopted in WCLAC Civil Case 1, 2, 3 of 2001 needs proper demarcation on the ground before concession boundaries of the disputed parties can be finally adjusted.”
14. Returning then to the application before the Court. All parties agree that the principle of res judicata applies to each of them in respect of the WCLAC ruling delivered on 19 August 2003 in Civil Cases CLAC 1, 2 and 3 of 2001. The Claimants, although they have not placed the 1945 decision before the Court have relied on what has been recorded in that 2003 WCLAC decision. Without the 1945 decision to assist the Commissioner of Forests, it is not appropriate to leave the issue of the overlapping concession areas for him to resolve. That would require agreement between the parties or a determination by the chiefs as to the proper demarcation of the boundaries.
15. The application was not one that was likely to resolve issues without the need for a trial, nor are the costs likely to be reduced substantially. There was not a disagreement on the effect of the 2003 WCLAC decision.

Orders

1. The issues of the boundary between the three customary lands may well be res judicata but there is insufficient material before the Court to determine what those boundaries are.
2. The application for the order perfected on 15 September 2022 to allow the Commissioner of Forests to resolve the overlapping concession areas for felling licences A101902 and A101766 is refused.
3. The Claimants in CCN 276 of 2022 are to pay the costs of the Defendants in civil case 276 of 2022.
4. The Third Claimant in CCN 392 of 2021 will bear his own costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge