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Boseto v Pacific Everest Lumber Ltd [2024] SBHC 87; HCSI-CC 545 of 2021 (23 August 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 545 of 2021

BETWEEN

LESLIE BOSETO, MOCKSON JEPE, MILA DEDI AND PAUL ZERE
(PRESENTING THEMSELVES IN THEIR REPRESENTIVE CAPACITY AS TRUSTEES, REPRESENTATIVES AND BENEFICIARIES OF IRUREQO TRIBES)
Claimants

AND:

PACIFIC EVEREST LUMBER LIMITED
First Defendant

AND:

ELLIOT GESO RAGOMO, JAMES EBOKOLO, JOHN BROWN METEA, HAYLISH ALICK AND MATHIAS DALLY
(Representing themselves as custodians of purported felling license no. A 101718 on Irureqo concession, Rendova Islands, WP)
Second Defendant

AND:

COMMISSIONER OF FOREST
(Represented by Attorney General)
Third Defendant

Date of Hearing: 5 September 2023
Date of Decision: 23 August 2024

Mr Brodwin Zama for the Claimant
Mrs Angeline Nuatali Tugarutu for the First and Second Defendant

RULING

Bird PJ:

1. This is a dispute over benefit sharing of a logging operation on Irureqo customary land, Rendova, Western Province. The case is between trustees/beneficiaries and the license holders over the land. Messrs Leslie Boseto, Mockson Jepe, Mila Dedi and Paul Zere filed this claim on behalf of the trustees/beneficiaries. They seek damages for conversion of merchantable logs, an order for specific performance, for restraining orders and costs. Pacific Everest Lumber Limited (contractor) and Messrs Geso Ragomo, James Ebokolo, John Brown Metea, Haylish Alick and Mathias Dally (the purported license holders) deny the claim.
2. Pacific Everest Lumber Limited and Messrs Ragomo, Ebokolo, Metea, Alick and Dally filed their defence to the claim. The Attorney General also filed theirs. By amended application, Mr Boseto and others have excluded the Attorney General from their application for summary judgment. I have noted that there was no application filed by Mr Boseto and others to discontinue their claim against the Attorney General. In effect, the Attorney General is still a party in this case.

The issue

3. The issue for me to determine in the hearing is, ‘Should I enter summary judgment against Pacific Everest Lumber Limited and Messrs Ragomo, Ebokolo, Metea, Alick and Dally?’

Position of Messrs Boseto and others

4. The basis of the application for summary judgment by Messrs Boseto and others is that the entity that was granted a felling license over the subject land (Irureqo Resources Development Company Limited) has been de-registered by the Registrar of Companies for its failure to file annual returns from 1 November 2020 to 2 March 2022. They say that being de-registered, they are not entitled to carry out any logging activity therein. It is not a registered entity. Its rights under law are extinguished by virtue of the de-registration. Consequently, their logging operations on Irureqo customary land was illegal. The value of logs extracted by them from the subject land within the period of time of the de-registration must be paid to them.
5. They further say that the re-registration of the entity does not rectify their position. In their amended application, they rely upon section 139 and section 150 (2) (i) of the Companies Act 2009. They also rely upon section 39 (1) of the Forest Resources and Timber Utilisation Act (cap 40).

Position of Pacific Everest Lumber Limited and Messrs Ragomo & others

6. Pacific Everest Lumber Limited and Messrs Ragomo, Ebokolo, Metea, Alick and Dally say that the orders sought in the amended application for summary judgment must be dismissed with cost. They say that the de-registration of the license holder does not nullify the felling license. They are still entitled to conduct logging activity on the subject land.
7. They further say that by operation of the law, the re-registration of the entity (Irureqo Resources Development Company Limited) has rectified the situation in retrospect. They rely on section 150 (1) of the Companies Act 2009. The amended application for summary judgment by Messrs Boseto and others must be dismissed with cost.

The requirement of rules 9.57, 9.58 and 9.59 of the Solomon Islands Courts (Civil Procedure) Rules 2007

8. The amended application of Messrs Boseto and others is premised under the above rules. The summary of the rules is that a party to a proceeding before this court has the right to make an application for summary judgment. The catch words are that the claimant or defendant must believe that there is no real prospect in defending the claim or that there is no real prospect of any part of the claim succeeding. Rule 9.59 further provides that a claimant’s application for summary judgment must have with it a sworn statement that;
   1. verifies the facts stated in the claim,
   2. states that the claimant believes there is no defence to the claim,
   3. state the specific orders that are sought by the claimant.
9. Having checked the initial application for summary judgment filed on 25 April 2022, I found so sworn statement filed with that application. I have also perused the amended application filed on 18 August 2023. There is also sworn statement filed with that application that complies with rule 9.59 of the CPR.
10. I am of the view that rule 9.59 is a mandatory provision that must be satisfied by an applicant to validate an application for summary judgment. The use of the word ‘must’ connotes a mandatory act on the part of an applicant party. How could I enter summary judgment when there is no evidence before me to verify the facts stated in the claim. There is also no evidence that Messrs Boseto and others believe that there is no defence to their claim.
11. There are nine (9) orders sought by Messrs Boseto and others in their claim. In their amended application for summary judgment, only four (4) orders are sought. I am also not satisfied that they have state the specific orders that they are seeking in their claim.
12. I have thoroughly perused the amended application for summary judgment and the respective submissions filed in support and against it. I am of the considered view that the ground relied upon by Messrs Boseto and others for this court to enter summary judgment in their favour is not a proper application under the above rules. A proper application could have been made under rules 12.11 and 12.12 of the CPR. The issues raised are issues on the interpretation of sections 139, 150 and 151 of the Companies Act 2009. By express provision of section 151 (2) of the Companies Act 2009, a company that is restored to the Solomon Island register is deemed to have continued in existence as if it had not been removed from the register. The re-registration of Irureqo Resources Development Company Limited by the Registrar of Companies has restored the entity in retrospect.

Conclusion

13. Upon my discussion above, the mandatory rules under which the amended application for summary judgment is filed have not been complied with by Messrs Boseto and others. The application is misconceived and is an abuse of the process of the court. It is hereby dismissed with cost.

THE COURT
Justice Maelyn Bird
Puisne Judge