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Sky Solomon Export Ltd v Attorney General [2020] SBHC 90; HCSI-CC 324 of 2013 (6 March 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 324 of 2013

BETWEEN

SKY SOLOMON EXPORT LIMITED
Claimant/Applicant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Defendant/Respondent

Date of Judgment: 6 March 2020

Suri G for Claimant/Applicant
Muria J for Defendant/Respondent

RULING

Maina PJ:
1. Introduction.

The Applicant applied under the Civil Procedure Rules 2007 for the Judicial Review of the acts of Commissioner of Forest under section 33 of the Forest Resources and Timber Utilization Act [Cap 40) (“the Forest Act”).

The Applicant alleged that the Commissioner had breached his contractual or statutory duty when he terminated the grant of right to sell the illegally logs felled or extracted by Ngu Brothers. And the Applicant seeks the declaratory orders of the court that:

1. The letter issued by the Defendant on 11^th January 2013 authorising the said Applicant to sell the seized logs was validly issued,
2. The Applicant did not commit any breach of the condition set out in the letter of the 11^th January 2013 authorizing the sale of the seized logs and if such conditions had not been complied with, they were due to circumstances beyond the control of the claimant and were contributed to the actions of the defendant,
3. The termination letter of 11^th January 2013 by his letter of 7^th February 2013 was not validly issued and therefore be quashed,
4. By termination letter of 11^th February 2013, the Applicant is entitled to be reimbursed with its losses, cost and expenses properly incurred in the total sum of $3,914,666.67.
5. Cost and;
6. Such other or further orders as the court sees fit.

2. Facts

Ngu Brothers and MSL Import and Export Ltd felled and extracted logs on Pentani Island without any logging and log felling licence. And on the 21^st November 2012, the Applicant applied for permission to export the logs illegally harvest by Ngu Brothers and MSL.

The supervising Commissioner of Forest Mr Terence Titiulu by his letter of 21^st December 2012 issued a notice of seizure and seized all the logs illegally felled by the Ngu Brothers and MSL on Pentani Island. Also on that date, the ship MV He Feng engaged by Ngu Brothers and MSL arrived at Pentani Island and began loading the seized logs.

In the letter dated 24^th December 2012, the supervising Commissioner of Forest issued an order granting the right of sale to Ngu Brothers and MSL Ltd to sell the seized logs to Visual Phoenix SDN BND China. The grant of sale existed until the supervising Commissioner by his letter dated 9^th January 2013 revoked the grant for sale on the ground for not complying with the conditions of the sale.

The supervising Commissioner of Forest by the letter dated 11^th January 2013 then granted right of sale of the seized logs to the Applicant with the conditions.

On 14^th January 2013, the Central Bank of Solomon Islands wrote a letter to the Commissioner of Forest and advised him that $3,004,683.92 has been received on 10^th January 2013, in favour of the Solomon Islands Government. The payment for the logs was made by Wong Phee Yong. This letter was copied to the Accountant General, Ministry of Finance & Treasury.

Following the grant of sale, the Applicant negotiated and signed a sale Contract with a buyer called Ningbo Tradewin Import and Export Co. Ltd of China. The sale contract was dated 18^th January 2013. The Claimant agreed to sell 4,000 cubic meters of logs at the valve of USD$612,780.00 (or SBD$4,300,000.00). Copy of the contract was given to the supervising Commissioner of Forest.

On 21^st January 2013, the Applicant wrote a letter to the Defendant requesting the Commissioner of Forest to make orders for immediate unload of the seized logs at Borokua in North Vela La Vella or Noro Port, restrain the log ship and seize passports of crew members of the log ship.

On 23^rd January 2013, the Applicant obtained interim injunctive orders Civil Case No. 9 of 2013, SKY Solomon Export Ltd v The Vessel “MV HE Tang” and Ngu Brother Limited.

The Applicant sought assistance from the PS/Ministry of Forest and Research to write letter dated 30^th January 2013 to Price worth Sawmill (SI) Ltd to accept discharge and keeping of the logs in its area.

By a letter dated 2^nd February 2013 the Commissioner of Forest issued a notice to the Applicant and alleged breaches of the condition of the sale award and required the Applicant to comply with 2 days. In the same letter, the Commissioner extended the notice for 4 days to 6^th February 2013. And on 7^th February 2013, the substantive Commissioner of Forest revoked the sale award to the Applicant and by letter dated 7^th February 2013 wrote to the Applicant and advised that the order for sale granted on 11^th January 2013 was terminated due the failure by the Applicant to observe the conditions in the order for sale.

The sworn statement of Anthony Banisi Ghona, Managing Director of the Applicant company filed on 30^th March 2017, annexed an undated Deed of Settlement for the CC: No. 9 of 2013 between Sky Solomon Export Ltd v MV HE Fang (1^st Defendant) and Ngu Brothers Ltd (2^nd Defendant). In the Deed, the vessel was allowed to depart so to avoid or lessen payment of penalty fees called demurrage fees. A sum of $300,000.00 was agreed to be paid to the Claimant. The Deed was between the Claimant and Ngu Brothers Ltd but the Defendant was not a party or privy to the Deed.

The sworn statement of Mr Ghona further stated that at the time of making the Deed, the parties were already aware that Ngu Brothers had deposited SBD$3,004,683.92 into the CBSI account; and it was a matter for the claimant to pursue with the Defendant.

The sworn statement made reference to case CC No. 9 of 2013 filed on 4^th February 2013. It relate to their wish for the logs to be unloaded from the vessel, re-tallying as they have secured a different ship to transport the logs.

3. Brief background of Civil Case No. 9 of 2013

Claimant (Banisi Ghona), in his sworn statements and documents stated this action was originated or sprinkled out from the parties’ actions or involvements for the sieged logs. It is therefore proper to state and understand the background of that case before dealing with the issue in this case (CC No. 234 0f 2013).

For the CC No. 9 of 2013, the Claimant/applicant is Sky Solomon Export Limited v MV HE Fang (1^st Defendant) and Ngu Brothers (SI) Ltd (2^nd Defendant). The Commissioner of Forest is a party to the case.

On 22^nd January 2013 the Applicant filed an Urgent Ex parte Application seeking orders:

1. to restrain the MV HE Fang from leaving the country until further orders,
2. the ship to immediately be arrested or alternatively its crew and captain detained;
3. an order that all logs loaded to the vessel being part of the consignment under the name of Ngu Brothers (SI) Ltd and MSL Import and Export Co Ltd be offloaded at Noro or nearest port.

The application was heard on 23^rd January 2013 and the order sought was granted to the Applicant.

On 28^th January 2013, the Sol-Law for Ngu Brothers Ltd filed an application under rules 9.58 and 9.75 of the Civil Procedure Rules. The application was seeking an order that the time for the hearing of this application be abridged and to discharge the orders made on 23^rd January 2013 and for cost. Annexed to the sworn statement of Derek Ngu to support the application was a customer receipt of transaction or payment of USD$411,949.02 to Central Bank of Solomon Islands’ account with the Wespac Bank, Honiara. The payment was paid by Wong Phee Yong.

On 31^st January 2013, Sol-Law wrote a letter to the Registrar of the High Court that they were not appearing and the Registrar to advice the Second Defendant to seek an alternative legal representation in these proceedings. The withdrawal relate to the manner or connections for a judge to hear second Defendant’s urgent application as soon as possible.

On the 5^th February 2013, a Notice of change of advocate was filed by DNS & Partners Law Firm for Ngu Brothers Ltd.

Rano and Company for Sky Solomon Export Ltd and DNS & Partners Law Firm for Ngu Brothers Ltd signed a consent agreement that was perfected, signed and sealed on 11^th February 2013. Discontinue of this proceeding was granted by the court on the 12^th February 2013 and Solicitor for the Sky Solomon Export Ltd was directed to formally file the notice of discontinuance and was filed on 13^th February 2013.

Issues

The claimant seeks a declaratory relief on the acts of the Commissioner of Forest when he revoked the grant for sale of the seized logs from the claimant.

And the issue is whether the Commissioner of Forest owed the contractual or statutory duty in the exercise of his power under section 33 of the Forest Act.

4. The Court

The evidence shows that the grant for sale of the logs to the Applicant was by an undated Deed of Settlement involved or partake with the arrangements for the vessel to leave when the seized logs were still on board the vessel. This Applicant’s positions can be drawn from the case CC: No. 9 of 2013.

By an undated Deed of Settlement, the parties settled or Applicant agreed to receive a sum of SBD$300,000.00. The Deed refer to the vessel MV HE Fang detained by the court order of 23^rd January 2013, Ngu Brothers Ltd (the release) is a party and had its logs on board the vessel and the parties were desirous of settling the matter out of court to allow the vessel to leave.

Clause 3 of the undated Deed of Settlement has the provision that states:

“3. Non-Disclosure
The parties agree that this agreement shall be maintained in strictest confidence and shall not divulge/release/otherwise allow the information to be made known to any person/persons who otherwise are not eligible to part of such information.”

This settlement followed by a signed consent agreement that was perfected, signed and sealed on 11^th February 2013. That discontinued the CC: no. 9 of 2013 and the vessel MV HE Fang left with the logs.

5. Claimant’s position of this case

From the facts of this case and CC: no. 9 of 2013, it is clear that direction of sale of the logs was granted to the Ngu Brothers Ltd but it was cancelled because the company did not comply with the conditions of the grant for sale. It was then granted to the Applicant, and at that time the logs were already loaded on board the vessel MV HE Fang. This is the circumstances of the logs when the Applicant accepted the offer or order for sale. The logs were from Petani Island, Western Province.

The direction for sale to the Applicant was in the letter dated 11^th January 2013 with the conditions:

(a) to furnish the Commissioner of Forest with full contact details of all persons authorized by SKY Solomon Export Ltd and the by buyer,
(b) establish and negotiate an Irrevocable Letter of Credit (LC) with Westpac Bank, Honiara Solomon Islands to the favour of SIG for the FOB value of the logs,
(c) the Irrevocable Letter of Credit in favour of the Solomon Islands Government must be sighted by Commissioner of Forest and verified by Attorney General before clearance commences,
(d) all documentation necessary for such export must reach the Commissioner of Forest for recommendation before the Application are sent to the Central Bank of Solomon Islands in accordance with the provisions of the Exchange Control Act; and
(e) distribution of the proceeds will be subjected to any further orders by the Magistrate Court pursuant to section 38 of the FRTU Act, and where there is no appeal or determination by the court, the Government through the Commissioner of Forest shall determine the distribution of the proceeds of the sale of logs.

The grant for sale to the Applicant was made on 11^th January 2013 and revoked by a letter dated the 7^th February 2013 on the ground for failure to observe the conditions. During that period of about 38 days or until the revocation, there seems to be no advice or response to the Commissioner of Forest on the actions or arrangements by the Applicant with the sale.

6. Circumstances surrounding the logs

These facts are not dispute by the Applicant.

1. The logs were on board the vessel MV HE Fang when the grant for the sale was granted to the claimant,
2. The undated Deed of Settlement between the Claimant and Ngu Brothers Ltd and the vessel was released and left with the logs.
3. The Settlement discontinued, the CC no.9 of 2013 against vessel MV HE Fang which was detained by the court interim order of 23^rd January 2013’
4. That settlement also benefitted the claimant with a sum of SBD$300,000.00

The actions by the Commissioner of Forest for the direct sale of the property seized was under 36 of the Forest Act on reasons that the logs was subjected to speedy and natural decay. And for the purpose of comparison, the period of grant for sale to Ngu Brothers and MSL was about 16 days when it was revoked for failure to comply with the conditions. With the Applicant was 27 days when Commissioner of Forest terminated the grant for sale for the similar reasons or failure to comply with the conditions of the sale.

The logs were on board the MV HE Fang and the vessel left with the logs by arrangement the Applicant participated with i.e. the consent order of HCC CC 9 of 2013.

It is also accepted that the payment fee for logs was made to the CBSI and telegraphic transfer customer’s receipt that was annexed to the sworn statement of Derek Ngu filed on 28^th January 2013. And the Applicant knew that payment for the logs before and when the consent agreement for the CC: No. 9 of 2013 was perfected, signed and sealed by the judge on 11^th February 2013 to discontinue that case.

With the action to discontinue it may also be triggered by the undated Deed of Settlement that was disclosed by the Managing Director of the Applicant Company in his sworn statement filed on 30^th March 2015. It is so because it does not make sense to say that it was done to lessen payment of penalty – demurrage fees while sum of SBD$300,000.00 was paid to the claimant. Not less the participation in the arrangement that directly on the seized logs but was not to disclose as stated in clause 3 of the undated Deed of Settlement.

Before the grant for sale of the logs to the Ngu Brothers Ltd, the Applicant’s interest to sell of these logs were there before the logs were seized by the Commissioner of Forest. This interest was expressed in their letter dated 21^st November 2012 to the Minister of Forest and another letter dated 30^th November 2012 to Commissioner of Forest with what the Applicant claimed as the consent of the landowners.

The above acts or behaviours of the claimant raise a question on their genuineness or the part of the Applicant to file this claim for judicial review on the acts of the Commissioner of Forest and to benefit out with a claim for the expenses they claim to incur in the total sum of $3,914,666.64. The circumstances of the logs was obvious at the particular time, as the logs were already on a ship when the Defendant granted the right to export of the logs. A situation the Applicant fully aware and the difficulty that would be encountered than if the log were still at the log pond.

The Applicant’s acts or the manner that steered to the granted the right to export to them, with or partake to allow the vessel to leave, their knowledge the payment for the logs was made to CBSI poses a weak standing for the orders they sought in this matter. That too, the Deed of Settlement was undated thus indented not be closed with the Applicant receiving a sum of $300,000.00 for what was said as to lessen payment of penalty – demurrage fees does not speaks right on part of the Applicant to file this judicial review on the act of the Commissioner of Forest. And it does not put things to the right context to allow the orders sought.

Section 33 of the Forest Timber and Utilization Act imposes on the Commissioner of Forest or the seizer of logs and the officer seizing the property are subjected to mark the indicating the same has been so seized and shall, as soon as may be, make a report of such seizure to a Magistrate. It is so because of the alleged offence or the reason to believe that a forest offence is committed.

With the question of contractual duties depends on the term of the grant for sale of the logs. For the Applicant it was cancelled for not complying with the terms and conditions of the grant for sale. I am satisfied the claim for judicial review by the Applicant has no merit and therefore is dismissed.

ORDERS

(1) The claim for judicial review is dismissed,

2. The cost is awarded to the Respondent

THE COURT
Justice Leonard R Maina
Puisne Judge