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Hall v Westwood Co [2024] SBHC 170; HCSI-CC 84 of 2017 (31 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 84 of 2017

BETWEEN:

MELDEN KEVUJAMA HALL
(Representing his pezoporo tribe, South Vela La Vella)
Claimant

AND

WESTWOOD COMPANY
First Defendant

AND:

XIANG LIN TIMBERS LTD.
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Third Defendant

Date of Hearing: 27 August 2024
Date of Ruling: 31 October 2024

For the Claimants: Duddley J
For the First and Second Defendant: Marahare D
For the Third Defendant: Damilea D

JUDGMENT

Kouhota J

The Claimant on 9^th June 2017 filed a category (A) claim against the Defendants seeking inta-alia the following reliefs;

1. Judgment against the First and Second Defendants jointly and severally for damages for trespass into Pezoporo Customary Lands for conversion of trees and all proceeds of sale of all merchantable trees felled within the Land.
2. A permanent restraining order against the First and Second Defendants their agents or any other person acting under their purported authority from entering the Land for the purposes of felling of trees or any other related activities.
3. Damages for trespass limited to SBD $5, 000,000.00.
4. Damages for conversion of merchantable logs felled within the Pezoporo Customary Land and its logging concession areas.

Facts

1. The Claimant avers that Maxland Limited is the Company purported to have the Timber Rights Approval over Bava and Pezoporo Customary land under which the Claimant is the legal trustee and purported the grantor during its timber right hearing.
2. The Claimant assert that the transfer of logging licence N0. A101567 (“the licence”) from Maxland limited to West Wood Company was made without prior approval of the Claimants. The Claimants tribe have also in no way have given their consent to transfer the felling licence rights on their land to the First Respondent.

(a) On February 17^th 2016, Form ll was determined by the Western Provincial Executive with the application of Maxland Ltd.
(b) Whistle the Claimant was determined as the persons to grant timber rights in Form l1, trustees of Pezoporo, the Claimant refused to proceed to Form lll and IV that gave Maxland the licence to operate on Pezoporo land.
(c) The original trustees determined in Form ll were deleted from Form ll produced by the First and Second Defendants and only Liligazu and Philip Dumo appeared as the persons produced in Form ll of the First and Second Defendants.
(d) The Claimant including the original trustees of C Qorapitu, D Pugeto, H Sito, H Padakevu were deleted from the original Form ll without their consent.
(e) The Claimant and the original trustees who signed the original Form ll refused to continue with the completion of the timber rights but found out later who are the persons that grant timber rights in their name as they are the only trustees to grant timber rights.
(f) The Claimant further identified that his name and other original trustees initial were marked on Form ll and Form IV that grants the licence to the First and Second Defendants were not them as they have refused to proceed to granting of timber rights.

3. The Claimant’s aver that the First Respondents felling licence No.A101567 was transferred and obtained illegally pursuant to the Forest and Timber Utilisation Act without consent of the Claimant and his tribe renders the entire operation of the First and Second Defendants on the entire operation of the First and Second Defendants on the Claimant’s land illegal and trespass.
4. That the Claimant avers that he as trustee and representative of his Pezoporo tribe have also never consent to transfer logging licence rights to the First Defendants nor did he or his tribe approved or consented to the Defendants logging operation on Pezoporo Customary land.
5. The Claimant also avers that the transfer of felling licence to the Respondent is illegal.
6. That the Claimant avers that the logging operation on Pezoporo Customary land is illegal and amounts to trespass by the First and Second Defendants.

The agreed issues for determination are;

• (i) Whether the logging operation of the First and Second Defendants at Pezoporo land is illegal and amounted to trespass?
• (ii) Whether or not the Deed of Assignment executed between the First Defendant and Maxland is enforceable?
• (iii) Whether or not the First Defendant have timber rights agreement with the Claimant to operate on or within Pezoporo land?
• (iv) Whether the Claimant is entitled to damages sought?

The answer to these questions really depends on whether there was a valid timber right hearing conducted over Pezoporo land and whether the signing of the TMA is legal.

I will start with the validity of the timber right hearing. None of the parties disputed the validity of the timber right hearing hence since there was no appeal against Provincial Executive determination of timber rights therefore it is considered there was a valid timber right process.

The only question that arises is that the Claimant who is one of the trustees identify in the timber right hearing did not signed standard logging Agreement which means not every person identified as person entitled to grant timber rights over Pezoporo land had signed the agreement. On that issue, counsel for the Claimant, in his submission referred to the case of Vozoto v Rupukana SBHC 34, HCSI 162 of 2007, in which the court of Appeal held that “the agreement shall be signed by all parties specified in paragraph 3 of Form 2 of the schedule to the prescribed forms Regulations and that any failure with the requirement is a failure to comply with the requirements of the form and regulation and must result in the invalidity of the timber right agreement”

On the question whether all persons identified as persons to grant timber rights must signed the agreement. The Court of Appeal in the case of Vozoto V Rupukana referred to above had clarified the issue in its judgment referred to above. The Court of Appeal’s decision is a precedent that bind this Court. In view of this, the assignment of Maxland licence to West wood was invalid; since all persons who should signed the agreement did not signed it.

The Commissioner of Forest said under oath said that his office had made a mistake to facilitate and issue the Licence 101567 to the First defendant. The Commissioner of Forest also told the Court, that according to law, a logging felling licence is not transferable. That in effect means the deed of assignment between the First Defendant and Second Defendant is without legal basis and illegal thus Maxland cannot transfer its licence to Westwood Company. Consequently, the Defendant operation on Pezoporo Customary land is illegal and amount to trespass.

I had considered the submission of counsels and I found the submission of counsel for the Third Defendant clearly address the issues to be determined which greatly assist the Court. Having considered the submissions of counsel and the evidence before the Court and for the reasons discussed above, the Court is satisfied the Claimant had proven its case on the standard of probabilities. The Court therefore give judgment for the Claimant with cost to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge