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Attorney General v NEVCO [2006] VUSC 3; CC 004 2006 (26 January 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 04 of 2006

BETWEEN:

ATTORNEY GENERAL
Applicant

AND:

NEVCO
First Defendant

AND:

SPI SANDALWOOD VANUATU
Second Defendant

Mr Felix Laumae as Agent of Kilu, Daniel & Warsal Lawyers and Mr Godden Avock on behalf of the Applicant/Second Respondent
Mrs Viran Molisa Trief for the Attorney-General

JUDGMENT

This is an urgent application dated 23 January 2006 by SPI, Second Defendant in this case seeking Orders to vary and/or strike out the Court Orders issued on 13^th January 2006. The application is filed with a sworn statement of a Beckenburg Lim Boon Kee trading as SPI SANDALWOOD VANUATU in Port-Vila, Vanuatu. Mr Godden Avock of Kilu, Daniel & Warsal Lawyers file a sworn statement of urgency. Mrs Viran Molisa Trief concedes for urgency. The Court hears submissions and arguments of counsel on that basis. The application cannot stand and must be dismissed for the following reasons:

First, the application is first advanced on the ground that the Attorney-General has no locus standi in this proceeding to make the application pursuant to Section 6(a) of the State Law Office Act No. 4 of 1998.

This ground is baseless. The application and orders issued by the Supreme Court on 13 January 2006 were not issued by the Attorney-General on the basis of Section 6(a) of the State Law Office Act of 1998. That Section 6 has no application in the case before the Court on 13 January 2006. On that date, the application was made on behalf of the Attorney-General on the basis of his powers and duty to issue the action as a relator to prevent further breaches of the public law by NEVCO (First Defendant) and SPI (Second Defendant now applicant in the present application).

Second, the urgent application is advanced on the second ground that the Order of 13 January 2006 was issued by the Court without a cause of action and/or statement of claim filed in the Supreme Court for the applicant to make the application under Rule 2.1 of the Civil Procedure Rules No. 49 of 2002. Again the second ground is baseless. The Order of 13 January 2006 was issued under the Forestry Act No. 26 of 2001, is pending the Investigation of the allegations of offences committed against the provisions of the Forestry Act of 2001.

Third, SPI has no legal basis to bring this application. The decision to grant a licence to Beckenburg Lim Boon Kee trading as SPI Sandalwood Vanuatu (name or company) to conduct sandalwood operations for a period commending on 29 September 2005 and ending on the 29 September 2015, has been called upon and quashed by Orders of the Supreme Court dated 22 December 2005 [CC 217 of 2005].

By Order of the Supreme Court dated 6 January 2006, Beckenburg Lim Boon Kee trading as SPI Sandalwood Vanuatu, his servants, employees and agents are restrained from exporting, processing, purchasing, harvesting or otherwise acquiring howsoever any other forest products pursuant to the licence of 29 September 2005 [CC 117 of 2005]. By a decision dated 25 June 2003, the Council of Ministers reserved all involvement in sandalwood operations to Ni-Vanuatu custom landowners. The decision to grant a sandalwood licence to SPI is in contravention of the Council of Ministers’ decision of 25 June 2003 and Section 4 and 5 of the Forestry Act No. 26 of 2001. For these reasons, the Court makes the following Orders:

ORDERS

1. The Urgent Application is dismissed.
2. The Applicant SPI must pay the costs of the Respondent (Attorney-General) of Vatu 10,000 within 7 days from today’s date.
   

Dated at Port-Vila this 26^th day of January 2006

BY THE COURT

Vincent LUNABEK
Chief Justice