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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 65 of 1997
EARTHMOVERS (SOLOMONS) LTD<(trading as Pacific Timbers)
v
SAMUEL THAO, EDWIN TINO,
MOSES GHAVA AND COLLIN JOEL
(trading as Aola Timber Export Agency)
AND SAMSON MANEKA
AND MICHAEL SULEA<
Before: Lungole-Awich, J
yle="n-top:-top: 1; margin-rgin-bottom: 1">Hearing: 24th March 1997
Judgment: 27th March 1997
>p style="marginargin-top: 1; margin-bottom: 1">Counsel: T Kama for the Plaintiff
C Ashley for the Defendants
p align="centerenter" style="margin-top: 1; margin-bottom: 1">JUDGMENT
yle="marginargin-top: top: 1; margin-bottom: 1">LUNGOLE-AWICH J: The plaintiff, Earthmovers Solomon Islands Limited, trading as Pacific Timbers, has commenced proceeding, by writ of summons dated 12.3.1997, filed on 13.3.1997. The defendants are Samuel Thao and others trading as Aola Timber Export Agency, cited as the first defendants, and Samson Maneka and Michael Sulea cited as the second defendants. The plaintiff said that it has acquired licence No. TIM 2/30 issued on 28.2.1989 to harvest timber logs in Ward 17 on Guadalcanal Island in lands specifically referred to as Sasaka, Betikiki and Tenagao. The first two lands are said to be part of Ngalivavatu and the last, near Ngalivavatu, itself within Ward 17. The plaintiff has constructed road, but has not commenced logging. It alleges that the first defendants have now entered part of the lands, through the road and are logging thereon. The second defendants who are the owners of Ngalivavatu are said to have authorised the first defendants to log on Ngalivavatu parts that cover parts of the areas of Sasaka and Betikiki. The second defendants are said to have already granted timber right for those two areas to the plaintiff earlier than when they authorised the first defendants. The plaintiff seeks damages for breach of contract, injunction to stop, logging, removal of logs already felled on Sasaka and from log pond. It also claims damages for damage to the road it constructed. It has applied for interim order based on the claim.
The defendants have opposed the interim application, although they have not entered earance, and filed defence. They have filed affidavits in support of their opposition. In the affidavits it is stated that the first defendants have licence No. TIM2/45 issued on 24.7.1995 to do timber logging business on Tanakagho, Ata, Ao'o Tavatogha, Potta Gaobata, Tabarusu, Daghoa, Sobolonga and Aliali. The defendants gain access to those lands by going through Ngalivavatu. The second defendants, the owner of timber right in Ngalivavatu gave the right of access to the first defendants. Those parts in which the first defendants are to be logging are within Ward 17, but do not cover Sasaka, Betikiki and Tenagao for which the plaintiff has licence.
This is of course not the time to evaluate the evidence so as to determine the issues and the rigf the parties conclusively.vely. The court only evaluates affidavit evidence so as to see whether the plaintiff's case has raised good enough triable issues, with prospects for success. See the often cited case, American Cyanamid Company-v- Ethicon Ltd. [1975] UKHL 1; [1975] A.C. 396 and Fellowes and Son -v-Fisher [1976] Q. B. 122.
In my view serious issues have been raised. The first one is the question of use of the road said to have been constructed by the plaintiff and and damage alleged to have been caused to the road. The defence will have to include averment that defendants have not used the road or, have done so with the permission of the plaintiffs or have not caused damage or that the road is not owned by the plaintiff or some defence along that line. The second issue is a question of the boundary of Sasaka, Betikiki and Tenagao, a question which I cannot summarily dismiss. There is therefore ground for interlocutory order, subject of course, to whether the damages alleged can be adequately compensated for by pecuniary compensation. It seems that damage to the road can be compensated for by payment of money. The plaintiff has not raised as an issue, the capacity of the defendants to compensate so I shall not deal with that. The logs to be cut and removed pose tricky question. There would have to be proper record of the number, species and prices of the logs extracted. I think that allowing logging to continue will extend the area of disagreement and complicate the main case. It is appropriate to avoid that by a temporary injunction.
p style="marginargin-top: 1; margin-bottom: 1">The defendants have licence for lands neighbouringe over which the plaintiff has licence. The defendants have already embarked on anon an expensive venture. Should the plaintiff lose its case, the defendants might well have suffered huge loss as the result of injunction. The plaintiff is a big company, not a customary landowner with no means in respect of whom the court has often waived requirement of security for damages for the reason given by Muria C.J. in the case of Hitukera v Hyundai Lumber Company Limited and Maepeza, civil case No. 132 of 1992. See also the case of Islands Construction Management Limited -v- Mbaeroko Timber Limited Civil Case No. 244 of 1996 in which I accepted and applied the reason given by the Chief Justice. The plaintiff must provide security for damages or undertaking as to damages.
The application of the plaintiff succeeds and the following orders are made:
1. The first defendant, their agents or representatives are restrained from using the road constructed by the plaintiff without consent of the plaintiffs.
2. The second defendants and representatives are restrained using for logging business, the road constructed by the plaintiff.
3. The first and second defendants are restrained from carrying on the business of logging on Sasaka, Betikiki and Tenagao lands said to be part of Ngalivavatu.
4. The defendants may remove logs already felled and are to records showing among other details, the number, species and value, and may sell them. Plaintiff's representatives are to be invited to observe the removal.
5. The proceeds of the logs already sold in the latest shipment referred to in supporting affidavit and for the logs in paragraph 4 are to be paid into joint interest bearing bank account of the solicitors for defendants and solicitors for the plaintiffs.
6. Business expenses and taxes are to be paid out of the account. In the event that pa do not agree on what may be regarded as business expenses they may apply to court.
7. Up to 50% of the revenue, excluding business expenses and tax is to be released from the joint account to the firsendants.
p style="marg"margin-top: 1; margin-bottom: 1">8. The injunction orders are to last for 90 (ninety) days, and in the event that t plaintiff shall consider it necessary to continue thue them, it may apply to court for continuation.
9. The plaintiff is to provide security for damages by depositing $80,000 in the joint account of olicitors or by providing aing a bank guarantee or insurance indemnity to the extent of $120,000. The security is to be provided within 14 days of today; failure will render the orders herein to expire. In the meantime the orders are effective.
10. Costs reserved.
Dated this 27th day of March 1997
At the High Court Honiara
Sam Lungole-Awich,
Judge
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