Doko v Gella Area Assembly [2000] SBHC 51; HC-CC 166 of 2000 (4 December 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 166 of 2000

DAVID DOKO, LUKE TAGO AND JOHN KOETE

V

GELLA AREA ASSEMBLY, TROPICAL RESOURCES DEV. COMPANY,
DALGRO (SI) LTD, ATTORNEY GENERAL

High Court of Solomon Islands
(F.O. KABUI, J)

Hearing: 4th December 2000
Judgment: 4th December 2000

Applicants not present
T. Kama for the Respondents
Attorney General not present

JUDGEMENT

(Kabui, J): By an Originating Summons filed on 26^th May 2000, the Applicants sought the determination of the following questions –

1. Whether the First Respondent could sit and make a determination on the Form 1 application by the Second Respondent on the 14/10/98.
   
2. Whether the Form II determination of the First Respondent was valid in the circumstances.
   
3. Whether the subsequent issuance of the license to fell and remove timber by the Fourth Respondent is valid.
   
4. Whether the subsequent dealings between the Second and Third Respondent thereafter are valid in view of the above.
   

Depending upon the Court’s determination of questions 1, 2, 3 and 4 above, the Applicants also sought the following orders –

1. A declaration that the timber rights process was unlawful.
   
2. A declaration that the First Respondents determination was done ultra vires.
   

100. A declaration that the issuance of License to fell trees and remove timber by the Fourth Respondent is null and void.
     

4. A declaration that all subsequent dealings between the Second and Third Respondents pertaining to the Timber Rights process of the 14/10/97 is null and void.
   
5. A declaration that any logging operations by the Third and Fourth Respondent on Gella, Central Islands Province is unlawful.
   
6. All proceeds of the export of round logs by the Third and Fourth Respondents on Gella, Central Islands Province be paid into an Interest Bearing Deposit in the parties joint Solicitors names.
   
7. Damages for unlawful logging activities.
   
8. Any other orders that this court deems fit to make.
   
9. Cost against the Respondents.
   

The Originating Summons came before Awich, J. on 12^th July 2000 who adjourned it generally to allow Mrs Maelyn Samuel, Counsel for the Applicants, to seek further instructions from her clients. The Applicants had also filed an ex parte Summons on 2^nd June 2000 seeking the following orders –

1. That the Logging operation on Gella by the Second and Third Respondents to cease forthwith.
   
2. That any proceeds of sale from logs on the said land be paid into an interest bearing deposit.
   
3. Any other orders that this court deems fit to make.
   
4. Costs against the Respondents.
   

On 30^th October 2000, the Applicants filed a Notice of Discontinuance effectively putting an end to the hearing of the ex parte Summons filed on 2^nd June 2000. Also, that same day, 30^th October 2000, the Applicants filed a Notice of Appointment to hear the Originating Summons. The appointed date and time was 4^th December 2000 at 9.30 am. When the case was called before me, the Applicants nor their Solicitor on record, Mrs Maelyn Samuel, were present in Court. No explanation was given for their absence. Mr. Kama, Counsel for the 2^nd and 3^rd Respondents, understandably asked the Court to dismiss the Applicants’ action. Rule 6 Order 38 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) states

“If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but if he has a counterclaim, then he may prove such counterclaim so far as the burden of proof lies upon him. (See Form 10 Appendix F.)”

I am satisfied that this is a case where the 2^nd and 3^rd Respondents are entitled to ask the Court to dismiss the Applicants’ action in this Court. I grant the order asked for and dismiss the Applicants’ action accordingly with costs.

F.O. Kabui
Judge