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Tropical Rainforest Aromatics Ltd v Lui [2006] VUSC 6; CC 003 2006 (27 January 2006)

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

Civil Case No. 03 of 2006.

BETWEEN:

TROPICAL RAINFOREST AROMATICS LIMITED
Claimant

AND:

MR WATSON JOHN LUI
Defendant

Mr Edward Nalial for the Claimant
Mrs Viran Trief for the Defendant

REASONS FOR JUDGMENT

This is an urgent claim for judicial review by the Claimant Company against the Director of Forestry of the Department of Forests in the Republic of Vanuatu. The Claimant is seeking for mandatory and prohibition orders requiring the Defendant Director to do specific things. The claim and grounds are set out below:-

(1) A mandatory order requiring the defendant to confiscate immediately all Sandalwood cut in Erromango after the Sandalwood harvest was closed in 15 September 2005 including those cut in January 2006 and all being stored at Dillons Bay and elsewhere on Erromango.

(2) A mandatory order requiring the Defendant to confiscate immediately all Sandalwood purchased by Nevsem Cooperative Society Limited (NEVCO) including the 6 tonnes being stored by NEVCO and/or its agents at the ex-Tebakor Pressing Laundry premises, Port Vila.

(3) An order prohibiting the Defendant from permitting NEVCO and/or its agents from exporting the 6 tones of Sandalwood being stored at ex-Tebakor Pressing Laundry premises, Port Vila.

(4) A mandatory order requiring the Defendant to ban NEVCO from purchasing Sandalwood in future until NEVCO complies with the provisions of the Forestry Act [CAP. 147] (the “Act”) to obtain a Sandalwood purchasing licence.

(5) An order that the Court Sheriff assist the Defendant to execute and enforce these orders.

(6) Costs of this application.

(7) Any other orders the Court deems just.

UPON THE GROUND THAT:

(1) Due to the failure and/or refusal of the Defendant, NEVCO purchased the Sandalwood without a Sandalwood harvest licence in breach of the provisions of the Act.

(2) Due to the failure and/or refusal of the Defendant, NEVCO purchased the Sandalwood after the Sandalwood season was closed by the Department of Forests.

(3) The Defendant failed and/or refused to stop NEVCO from purchasing Sandalwood despite repeated written notices and warnings from the Claimant.

(4) The Defendant has failed and/or refused to properly exercise its powers to regulate and control harvest of Sandalwood resources in 2005.

(5) NEVCO and its agents/representatives exported Sandalwood without an export licence.

(6) Currently Sandalwood is being cut on Erromango under the mistaken belief the Minister of Forests has re-opened in 2006 the Sandalwood harvest season, when that Minister’s decision has been quashed by the Court. However, more Sandalwood is being cut which wood will go to waste as those wood cannot be purchased from the landowners.

(7) AND UPON the grounds set out in the Sworn Statements filed in support of this Claim.

Mr John Naupa who is the owner of the claimant company filed a sworn statement in support of the claim and another sworn statement in support of the urgency. I read the Urgent Application for judicial review and the sworn statement in support of it. I find there is urgency. I then proceed to hear the claim as matter of urgency. All the procedural technicalities of the rules in respect to a judicial review type application under part 17 of Civil procedure are waived. I read the urgent application, the sworn statement in support of it and I hear and consider the submissions of counsel, I reach the conclusion that the urgent application for judicial review must fail for the following reasons:

First, the claimant is seeking mandatory orders requiring the defendant Director of the Department of Forests to (1) confiscate immediately all sandalwood cut in Erromango after 15 September 2005 and to (ii) confiscate immediately all sandalwood purchased by NEVCO cooperative society limited (NEVCO). The Defendant Director of Forests has no power to confiscate any forest products. The Court cannot mandatory require the Director to confiscate any product of forests in a civil Court proceedings because the power to confiscate is an additional penalty imposed by the court against a person convicted of an offence under subsection (1), (2), (3), (4), (5), or (6) of section 70 of the Act of the Forest Act No. 26 of 2001.

Second, the Claimant is seeking an order prohibiting the Defendant Director

(i) From permitting NEVCO and/or its agents from exporting Sandalwood and

(ii) from purchasing Sandalwood in future until NEVCO obtains a Sandalwood licence under the Forestry Act No. 26 of 2001.

The Orders sought are remedies of public Law. They are of extraordinary nature and issued on exceptional circumstances only.

The process of this type of action is by way of a relator action by and with the consent of the Attorney General. However if there is material information deposed to the effect that the public authorities know about the breach or the non-compliance of the law by a citizen, person or company and the Attorney General does not appear to concern himself with them, then, the Court will consider and issue the remedies sought by an applicant directly because if a private citizen could not do so, there would be a serious gap in the system of Public law The granting of the orders will be justified as the Applicant was performing a public service in bringing the proceedings.

ORDER

1. The Urgent application for judicial review is dismissed.
   
2. The Claimant to pay the defendant’s costs of VT20,000 by today’s date i.e. 10 January 2006.
   

DATED at Port Vila, this 27^th day of January, 2006.

BY THE COURT

Vincent LUNABEK
Chief Justice