HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 244 of 2010

BETWEEN :

ROWSON LUKISI AND RICHARD
[Representing the Liukana [Sukuvai] Clan
of Choiseul Province]
Claimant

AND:

EAGON RESOURCES DEVELOPMENT
COMPANY LIMITED
Defendant

HEARING : 21 0CTOBER 2011
RULING: 21 NOVEMBER 2011

W Rano for Claimant
C Hapa for Defendant 

RULING

1.	This is an application by the claimant filed on 19 July 2011, seeking an order that judgment be entered against the Defendant in consequence of the stay order dated 5 May 2011. The claimant alleges that the order was made by the court after successive non compliances by the Defendant of the orders of the court inclusive of the more important two dated 31 March 2011 [perfected on 4 April 2011] and order dated 14 April 2011 [perfected on 20 April 2011]. 

2.	The claimant filed his amended claim on 24 February 2011. By this amended claim, the claimant seeks about SBD4,000,000.00 for trespass and environmental damage; about $28,000.000.00 for conversion of trees, unlawful extraction of $13,495.77 cubic metres of logs from Liukana and Zizima customary lands; determination on the validity of felling licences Nos. A 10550 and Tim 2114 which cover Volekana II customary land and permanent restraining orders against the Defendant, its servants and agents. 

3.	In its defence, the Defendant denies trespass to land and conversion of trees from customary lands named in paragraph 2 to above. It denies paragraphs 1 and 6 to 13 of the claimant's claim. Mr. Robert Vaekesa deposes that Rowson Lukisi and Richard Lukisi were not the lawful representatives of Liukana [Sukuvai Clan of Choiseul, except himself. He proved this by representing that clan appealed successfully against the decision of the Varisi House of Chiefs on ownership of Ngatakobi customary land to the High Court in civil case No. 465 of 2007. 

 4.	Further, the Defendant's defence shows that: A standard logging Agreement was executed by the Trustees of Zizima customary land and the Defendant on 7 April 1999. Felling Licence No. Tim 2/14 covers both Volekana I and Zizima customary lands. It was issued on 10 September 1997 and renewed on 21 December 2007. 12 shipments of round logs were made between 28 May 2009 and 11 July 2011 which earned royalties of SBD 1,122,173.93. This sum of money was paid into a land trustees' Account at ANZ Bank with Messrs Lawster Lukisi, Leadly Lukisi, John W Nique and Joseph Quto as the signatories; 15 shipments of round logs from Volekana II customary Land were exported between 14 August 2008 and 28 October 2009. Royalties of SBD 1, 160, 460.40 for royalties was paid into the land Trustees' Trust Account with ANZ Bank with Messrs John Kokoro [chief], Denson Benjaiman and Leadly Lukisi as signatories; a standard logging Agreement was made between the landowners and the Defendant in respect of Volekana II and Zizima customary lands. They were executed on 21 February 2008 and 14 May 2009 respectively. The annual harvest plans in respect of Volekana II and Zizima were issued by the Commissioner of Forest in 2008, 2009, 2010 respectively; and the Choiseul Provincial Executive were involved in the Timber Rights Agreement hearings over these customary lands.

5.	The issue before the court in this proceeding is whether judgment should be entered in favour of the Claimant because the Defendant did not comply with peremptory orders of the court, which resulted in a stay order as referred to paragraph 1 above.

6.	The terms of the peremptory and the stay orders are relevantly set as follows:

(1)	Order dated 31 March 2011 (perfected on 4 April 2011). 

"IT IS HEREBY ORDERED as follows:

1.	The Defendant shall reply to the request for further and better particulars filed on 23 March 2011 by 7 April 2011" 

2.	Unless order of 15 April 2011 (perfected on 20 April 2011):
"That unless the Defendant provides answers to request of further and better particular by 28 of April 2011 the Defendants' amended defence will be stayed and the matter will proceed to trial.

3.	Matter adjourned to 5 May 2011.

Stay order 5 May 2011 (perfected on 16 May 2011):

"IT IS HEREBY ORDERED as follows:

1.	That in consequence of the Defendants' non-compliance of the "Unless Order" dated 15 April 2011 the Defendants' Amended Defence filed on 9 March 2011 is hereby stayed.

2.	This matter be listed for pre-trial conference on a date to be fixed by the Registrar".

7.	The Claimant submits that as the stay order operates as a dismissal of the case. The Defendant objects to the dismissal of the case as the disclosure step on the claim has yet to be reached.

8.	The terms of the unless order is clear. It merely applies to the stay of the amended defence. Order 2 of stay order requires that matter be listed for pre-trial conference that is to be done on this matter. A stay of the whole claim is therefore refused and is dismissed. Claimant to pay costs of defendant for this application. This claim is accordingly adjourned to 1 December at 2.30pm for mention.

THE COURT