Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Glengrow (SI) Company Ltd v Mega Enterprises Ltd [2008] SBHC 36; HCSI-CC 89 of 2008 (15 April 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 89 of 2008

GLENGROW (SI) COMPANY LTD
(FIRST CLAIMANT)

AND

PREMIER OF ISABEL PROVINCE
(SECOND CLAIMANT)

-V-

MEGA ENTERPRISES LIMITED
(FIRST DEFENDANT)

AND

RURUMA DEVELOPMENT COMPANY
(SECOND DEFENDANT)

Civil Case Number 89 of 2008

Date of Hearing: 14th April 2008
Date of Ruling: 15th April 2008

Primo Afeau Legal Services for the Applicants/First and Second Defendants
ANT Legal Services for the Respondents/First and Second Claimants

Palmer CJ.:

This is an application by Mega Enterprises Limited (“Mega”) and Ruruma Development Company (“Ruruma”), the first and second defendants, to vary interim orders issued by this court on 2nd April 2008. The variation sought was to have (i) 25% of the proceeds to be released as export duty to the Government; (ii) 60% to be released to the first defendant for its contractual expenses; (iii) 2.5 % to be released to the second defendant; and (iv) 12.5 % t be paid into a trust account.

The interim orders of this court included the restraining of all log proceeds exported on board the vessel MV Fu Wang V. 0804 and required that they be deposited into a bank trust account to be held jointly in the names of all the parties in these proceedings. The second part of those orders restrained the first and second defendants from further felling, harvesting and exporting of logs from Lot 17 within parcel number 071-001-17.

The claim of Glengrow (SI) Company Ltd (“Glengrow”) and the Premier of Isabel Province (“Premier”), the first and second claimants can be summarised as follows. They say that the perpetual estate in parcel number 071-001-17 (“parcel 17”) being land situated in Kia District, Isabel Province, is provincial government land held in the name of the Premier for and on behalf of Isabel Provincial Assembly. They say the defendants had encroached into parcel 17 and thereby trespassed and removed logs without permission. They claim damages for trespass and conversion of trees and related costs.

The defendants on the other hand say that they are the holders of a valid timber license in respect of the concession areas in the following perpetual estates in parcel numbers 071-001-16 (“parcel 16”), 071-001-8 (“parcel 8”), and 071-001-4 (“parcel 4”). They say the area runs from Toroko River to Ruruma River then to Kagelua inland to Maliumu then to Toroko.

There is no dispute to the validity of their timber license, number A10247. Following approval of their Harvest Plan and Coupe Plan in January 2008 by the Commissioner of Forests (“the Commissioner”) they commenced logging operations in February 2008.

On or about 26 March 2008, they were told to cease all logging operations by the Commissioner on the grounds that they had encroached into parcel 17. Thereafter Mega ceased logging operations and arranged to have all the logs felled to be skidded, hauled and exported.

That there are triable issues is not in dispute. The claim of the claimants is fairly straightforward. They say that encroachment on parcel 17 has occurred. They say they have carried out an inspection on the site which confirms this. They say that about 505 pieces of logs totaling 2087.725 m³ and other logs still in the bush had been felled and removed from parcel 17. This will be a matter for trial unless conceded by the defendants.

The defendants on the other hand have a license to fell in parcel 16, parcel 8 and parcel 4. I have read the sworn statement of Marvin Baekisapa filed 9^th April 2008 in which he denies any logging activity outside of their concession area. The issue whether any encroachments have been committed will be a matter for trial at the appropriate time.

The issue before me is whether any variation should be made on an urgent basis before the inter partes hearing scheduled for the 16^th April 2008 at 9.30 a.m. should be heard. I have carefully considered the application and come to the conclusion that the only urgency which warrants intervention at this point of time is the immediate release of the proceeds of the logs exported from the Fila Camp^[1] and Faurara Camp^[2] in Malaita. These were logs exported from Malaita and therefore should not be affected by the interim orders of this court. Unfortunately they became tied up in the orders of this court through being processed together under the same letter of credit and also through the generality of paragraph 1(i) of the orders of the court dated 2^nd April 2008. Those orders did not reflect what was sought before the court at the ex parte hearing. The proceeds sought to be restrained were in respect of the logs felled from parcel 17. Paragraph 1(i) therefore should have been specific to that land and not so generally worded. I rule that the requirements of rule 7.7 of the Solomon Islands Courts (Civil Procedure) Rules 2008 (“the Rules”) shall not apply to the application for variation in so far as it relates to this specific matter and grant orders for the immediate release of proceeds in respect of the logs harvested and exported from Malaita.

It is important to take note of the requirements of rules 7.6 and 7.7 of the Rules for interlocutory applications. Rule 7.7 requires a minimum of three days before the time should be fixed for hearing unless the court otherwise orders. This application therefore should not have been listed by the Registrar of High Court as rule 7.7 had not been complied with and no application for abridgement of time has been sought as well.

In the circumstances, apart from the order for the immediate release of proceeds in respect of logs felled and removed from Malaita, this court does not have jurisdiction to deal with the other matters raised in the application of the applicants any earlier than the date actually fixed for the inter partes hearing tomorrow Wednesday 16^th April 2008 at 9.30 a.m. Accordingly those matters are formally adjourned to Wednesday 16^th April 2008 at 9.30 a.m.

Orders of the Court:

1. Allow abridgement of time for hearing of the application of the defendants returnable for hearing on 14^th April 2008 at 1.30 pm in the afternoon.
   
2. Vary paragraph 1(i) of the orders of this court dated 2^nd April 2008 by excluding the proceeds of logs felled and exported from the log ponds at Fila Camp and Faurara Camp in Malaita and order their release forthwith.
   
3. Adjourn all other matters for the inter partes hearing to 16^th April 2008 at 9.30 a.m.
   
4. Costs in the cause.
   

The Court.

^[1] Market Certificate #MG 08/06, with 773 pieces of logs totaling 2,522.068 m³
^[2] Market Certificate # MG 08.05 with 350 pieces of logs totaling 1,460.733 m³