Eagon Resources Development Company (SI) Ltd v Bangakujuku [1997] SBHC 87; HCSI-CC 347 of 1996 (10 January 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 347 of 1996

EAGON RESOURCES DEVELOPMENT COMPANY (SI) LIMITED
& ANOTHER

-v-

BENAE BANGAKUJUKU

High Court of Solomon Islands
(Palmer J)
Civil Case No. 347 of 1996

Hearing: 13th December, 1996
Ruling: 10th January, 1997

T. Kama for the Plaintiffs
L Kwaiga for the Defendant

PALMERJ: This is an inter partes application for continuation of the orders (ex parte) of this court dated 21st November, 1996, in which the Plaintiff inter alia, were permitted to continue logging operations in respect of Vulebangara Land, inclusive of the area claimed by the Defendant as Sisiro land.

The Defendant however, has filed a Notice of Motion on 10th December, 1996, seeking inter alia restraining orders against the First Plaintiff, his servants or agents from entering the area of land which he claimed is within Sisiro land.

It is trite law now that in order for an application for an interlocutory injunction to succeed, there must be serious or triable issues shown on the affidavit material before the court. If this is not shown, the application is likely to fail.

The claim of the Plaintiffs as set out in their Statement of Claim filed on 19th November, 1996 can be summarised as follows. The First Plaintiff claims that it has a valid licence to fell and remove trees issued under section 5 of the Forest Resources and Timber Utilisation Act (Cap. 90) as amended, and a valid timber rights agreement with the appropriate land-owners of the Vulebangara customary land area, as identified by the North-West Choiseul Area Council.

They claim that the Defendant was one of the land-owners identified as lawfully entitled to grant timber rights over the said land; this appears not in dispute. The dispute that has arisen relates to the boundary of Vulebangara customary land and Sisiro land; which the Defendant claims ownership over.

The Defendant does not dispute that a valid timber rights agreement and licence had been issued in respect of Vulebangara land. It is also not disputed that Sisiro land is a separate area of land and not included in the timber rights hearing in respect of Vulebangara land. The identification of Benae Bangakujuku therefore as one of the persons lawfully entitled to grant timber rights in respect of Vulebangara land could not and did not include Sisiro land.

In the interlocutory hearing when the Second Plaintiff was cross-examined by learned Counsel for the Defendant, he stated that the boundary of Vulebangara land with Sisiro land as dealt with by the Area Council in the timber rights hearing was identified as at Ligaware Stream. The Defendant however has denied this when he was cross examined in turn by learned Counsel for the Plaintiffs. He maintained vehemently that the boundary from time immemorial was at Lokabelo Stream and that had he known that the boundary was at Ligaware Stream, he would have objected to it at the timber rights hearing. Apart from their claims, the Plaintiff has not produced evidence of details of the timber rights hearing as to the area of Vulebangara land as considered by them. Also, there is no evidence produced by the First Plaintiff to show that the issue of boundary between Vulebangara land and Sisiro land had been finally determined as between the land-owners in this case. So while it is clear that a valid timber rights agreement had been entered into in respect of Vulebangara land, the exact boundary with Sisiro land remains in dispute. I am satisfied accordingly that there is a serious issue to be tried as between the competing land-owners in this case.

I note on the affidavit and oral evidence before this court that the Defendant had not been quiet or secretive about his opposition to any logging activity entering Sisiro land. There is evidence to show that he had written to the Chairman of the Timber Right Committee of the Choiseul Area Council, in a letter dated 9th May 1995 expressing his clear opposition to any logging activity in Sisiro land. A copy of this letter is annexed to his affidavit filed on 10th December, 1996 and marked "BB4".

It being clear to me that no timber rights agreement and no licence had been issued in respect of Sisiro land, the Plaintiff cannot be permitted to enter that land for any logging purposes. Having said that, and recognising that the live issue between the land-owners in this case is the boundary between Vulebangara land and Sisiro land, and recognising that the First Plaintiff had inadvertently felled logs in the area between Ligaware Stream and Lokabelo Stream on the belief that they understood the boundary to be at Ligaware Stream, they should be permitted to remove the said logs and have them sold after carefully identifying those logs, as to volume and species. The total proceeds of sale of those logs only should then be paid into a Solicitors Trust Account. It would also be advisable for the First Plaintiff to get the Defendant to identify his tambu sites so that no further damage is caused whilst the hauling and removal of the logs is in progress.

ORDERS OF THE COURT:

1. The order of the Court dated 21st November, 1996 be discharged forthwith.

2. The First Plaintiff, his servants or agents are restrained from entering Sisiro land for purposes of felling and removing any logs, save for removing logs already felled prior to the date of this order between the area of LIGAWARE STREAM and LOKABELO STREAM.

3. The proceeds of sale of those logs shall be paid into a joint Solicitors Trust Account on interest bearing terms.

4. Costs in the cause.

Albert A Palmer
The Court.