Kalena Timber Company Ltd v Bolopoe Corporation [2013] SBCA 1; CAC 3 of 2013 (2 May 2013)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS.
(Faukona J).

Civil Appeal No. 3 of 2013.

Between:

KALENA TIMBER COMPANY LIMITED
Appellant

And:

RERESARE DEVELOPMENT COMPANY
LIMITED
Second Claimant

And:

BOLOPOE CORPORATION
First Respondent

And:

BOLOPOE CORPORATION COMMUNITY
COMPANY LIMITED
Second Respondent

And:

MIDDLE ISLAND INVESTMENT Ltd
Third Respondent

And:

ATTORNEY-GENERAL
Fourth Respondent.

Hearing Date: 2nd May 2013.
Ruling: 2nd May 2013

Mr. G. Suri for the Appellant.
Mr. R. Kingmele for the Second Claimant.
Mr. P. Afeau for the First Respondent.
Mr. W. Rano for the Second and Third Respondent.
Mr. Firigeni for the Fourth Respondent.

RULING.

Faukona J: This is an application to seek leave to appeal against a ruling made by the High Court on 29th January, 2013. The application is necessary pursuant to Section 11 (a) (f) of the Court of Appeal Act. The sections says that no appeal be entertained by the Court of Appeal in relation to an interlocutory injunction unless leave is granted by a Judge or Court of Appeal.

2. The propose notice of appeal annexed to sworn statement of Richard Yong as RY2, for the Court of Appeal to reconsider the High Court ruling on the part in which the High Court has allowed operational expenses be paid to the 2nd and 3rd Respondents.

3. Mr Suri's main contention is that for the court of Appeal to reconsider and draw a line between the two categories of cases. One are those companies which have logging or milling licences and special permits, and secondly those which has no licences or permit at all. Other than relying on common and prevailing practices in this country, those practices have to be analysed properly. Whether those practices can only benefit those with licenses and permit; and whether it includes those without any logging licences or permit at all.

4. This argument premises on the evidence that the 2nd and 3rd Respondents do not have logging licences at all to log in the disputed area.

5. On the other hand Mr Rano opposes the grant of leave and argues that the same issue raised by Mr Suri was previously raised by Mr. Tagini in the Court of Appeal Civil Case No. 31 of 2012 involving the same parties.

6. The main contention by both Counsels is in relation to interpretation of paragraph 2 of page 2 of the Court of appeal judgment.

7. Whatever the meaning of that paragraph be, the fact remains that the major issue is which category of cases to benefit from the award of operational cost, rather than relying on common and prevailing practices.

8. No doubt, that is an arguable issue in particular when measured up to the case quoted in the High Court ruling of Mosa V Kololeana Development company Ltd[1] which His Lordship, the Chief Justice Sir Muria said on page 10;

" The Plaintiffs remedy, if the licence is found to be invalid can be adequately addressed in damages at the trial of the main action."

9. Again, in my view raises another issue, whether invalid licence is the same as no licence at all, in particular where a licence has expired yet logging operations still continues.

10. In any event, those issues are issues of law and needs guidance from the wisdom of the Court of Appeal. With those reasons, I hereby grant application for leave to appeal.

Order.

1. Leave to appeal is granted.

2. Cost be costs in the cause.

The Court.

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^[1] [1996] SMHC 16; HC – CC 361 of 1995 [29 March 1996].