Ngelemenge v Attorney-General [1999] SBHC 50; HC-CC 143 of 1999 (12 May 1999)

HIGH COURT OF SOLOMON ISLANDSLANDS

Civil Case No. 143 of 1999

p class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JULIAN NGELEMENGE & amp; OTRS

v

ATTORNEY-GENERAL & OTRS

High Court Of Solomon Islands
(Palmer J)
Civil Case No. 143 of 1999

Hearing: 11 May 1999
Ruling: 12 May 1999n>

A.. Nori For The Plaintiffs
G. Samuels ForFirst Respondent
J J. Apaniai For The Second Respondent
A.. Radclyffe For The Third Respondent

PALMER J.: The Plaintiffs obtained leave on 28^th April 1999, to commence inter alia, action for certiorari to quash the decision of the Commissioner of Forests which had granted an extension to the licence of the Second Respondent (Licence Number TIM 2/77) into Nunughu Land. The Plaintiffs claim the extension was unlawful as it contravened the provisions of the Forest Resources and Timber Utilisation Act, 1990 (“the Act”). They claim rights of ownership over the said Nunughu Land.

Other orders obtained included an order to restrain and pay into an interest bearing deposit account all proceeds of the logs felled and removed and exported from that land area. This is now the subject of the summons filed on 5^th March 1999 by the Third Respondent and which is the subject in this ruling.

The Third Respondent, Dalgro (SI) Limited was the contractor engaged by the Second Respondent inter alia, to extract and transport logs to the log pond for export (see affidavit of Keith Douglas filed 5^th March 1999). At paragraphs 2 and 3 of the said affidavit, it was agreed the Third Respondent would be paid the sum of USD60-00 per cubic metre for its services. The rate however has been reduced by consent to USD56-00 per cubic metre (see annexure “B”). It claims the said amount be released for its services rendered according to the terms of that agreement.

The Third Respondent also claims refund of the sum of SBD45,000-00 for money advanced to the Second Respondent for the hire of a barge and tug boat from Silvania Products (S.I.) Ltd and SBD4842-00 for the payment of stevedores who loaded the ship. These were expenses under the agreement to be borne by the Second Respondent.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr. Apaniai for the Second Respondent doe object the orders sought bght by the Third Respondent as proper, and in accordance with the terms of the agreement entered into with the Third Respondent.

Mr. Nori forPlaintiffs objects the orders sought, essentially on the he grounds that the Third Respondent should not be permitted to benefit from what might turn out to be an illegal and criminal operation by both the Second and Third Respondents, apart from the claims of trespass which are yet to be heard. He argues releasing the payments now would give the appearance of validating such questionable operation at this stage and the agreement between the two Respondents which are yet to be determined. He points out the Plaintiffs were never a party to that agreement and so are not bound by its terms.

Unfortunately, the grounds raised by learned Co for the Plaintiffs fail il to distinguish the difference between an award for damages which may be awarded by the court at the end of the day as opposed to the proceeds of the logging operation on the said land. These are not one and the same thing. Whether the operation was illegal or criminal makes little difference to the fact that costs and expenses had been incurred. It is inevitable in my respectful view these will have to be paid in any event. These were necessary expenses incurred in the said logging operation without which the proceeds now restrained would not have been possible. I consider it only fair and just in the circumstances the expenses incurred be released. No evidence has been adduced to suggest the rates charged and the expenses claimed by the Third Respondent are unreasonable,

There is also no evidence to suggest at this stage that both Respondents would not be in a position to pay any award of damages that may be awarded in favour of the Plaintiffs if they should win their case at the end of the day.

I tisfied the Order of the 28^th April 1999 be vari varied to permit payment to the Third Respondent of all monies due to it from the Second Respondent under the contract between them dated 14^th December 1998 and the invoice dated 28^th April 1999.

The Third Reent has also provided conflicting information at this stagestage concerning representation of all twelve Plaintiffs and whether all are willing to continue with this action. Accordingly I consider it only proper at this stage for learned Counsel for the Plaintiffs to file within seven days a notice indicating which Plaintiffs he represents to date.

Also an order will be included to have the Notice of Motion filed 29^th April 1999 adjourned sine die with liberty to restore.

ORDERS OF THE COURT:

1. &nsp; THE FOLL AMOUNTS BE RELEASELEASED AND PAID TO THE THIRD RESPONDENT WITH IMMEDIATE EFFECT:

< (a) <(a) n/spa USD203,180.43 being for sums due at the rate of USD56-00 per m³ X 3,628.22p>3

> (b) &n SBD45,000-00 plus SBD4842-00 being for advances made to the Second Respondent for hire of barge and tug boat and cost of stevedores.

2. &nbsp &nbssp;&nnbp; Nsp; NO AWARD FOR COSTS.span>

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3. CLUNSE TFORPLAE TIFFN FILE FILE WITHIN SEVEN (7) DAYS A NOTICE TO "> IN INDICATDICATE WHICH PLAINTIFFS HE REPRESENTS TO DATE.

ass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HE COURT.