Timothy v Pentani [2006] SBHC 146; HCSI-CC 29 of 2006 (29 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 29 of 2006

DERALD TIMOTHY AND OTHERS
AND SILVANIA PRODUCTS (SI) LIMITED

v.

ROBERT PENTANI AND ANOTHER,
PREMIER OF WESTERN PROVINCE,
KALENA TIMBER COMPANY LIMITED
AND ATTORNEY GENERAL.

Date of Hearing: 29 March 2006
Date of Ruling: 29 March 2006

M. Tagini for the Applicants/Third Defendants
J. Katahanas for the First Defendants
R. Firigeni for the second and Fourth Defendants
J. Apaniai for the Respondents/Plaintiffs

Palmer CJ.:

The issue in this interlocutory hearing basically is whether an appeal lodged by the first Defendants before the Customary Land Appeal Court (Western) ("CLAC") was still pending in respect of a timber rights hearing convened on or about 18th September 2002. The third Defendants contend that they had filed appeal against that determination and that it is yet to be heard by the CLAC. At the hearing before the Commissioner Mr. Chetwynd on 10 March 2006 it was conceded by parties that that issue of fact was directly relevant to the issues before this court regarding whether interim restraining orders should continue or not. It was then adjourned so that that particular issue can be addressed. The first Defendant has filed evidence which conclusively shows that an appeal was lodged on or about 15 October 2002, that following receipt of that appeal, the Clerk to the CLAC, Principal Magistrate Maina wrote to the Commissioner of Forest notifying him of the appeal. The first Defendant has further filed material before this court which shows that the appeal is still pending.

I note that in the application for interim orders before this court held on or about 7th February 2006, the court was misled into believing that the appeal had been dismissed. The first Plaintiffs deposed in their affidavit that they believed the appeal had been dismissed. They told the court that the Commissioner of Forests had received copies of "Certificate of No Appeal" and filed copy of a letter to that effect signed by Peter Kenihuraia on behalf of the Commissioner of Lands. This is quite serious and I will reserve the question of costs on that. As a result of that material, the Court issued interim restraining orders against the first and third Defendants.

Since that hearing, the first Defendant has filed proof of his assertion that his appeal remains outstanding and that it had not been dismissed or disposed of. This directly puts the ball back into the Plaintiff’s arena but which has not been rebutted or explanations provided in this hearing. The submissions of Mr. Katahanas on the validity of the licence issued to the second Plaintiff where the timber process had not been completed has much force and must directly impact upon the matters pending in this interlocutory hearing. It basically challenges the question of triable or serious issues pending before this court, a prerequisite to the issue of any interim restraining orders and to the continuity of such orders. Where that burden is not discharged by the Plaintiff on the balance of probabilities, the interim orders must lapse forthwith.

What is now clear at this point of time is that there is clear unchallenged evidence showing that there is an appeal pending before the CLAC in respect of the timber rights determination of the Western Provincial Executive dated 18th September 2002. That would have the effect of invalidating the licence of the Plaintiffs no. A10250 dated 16 December 2002 in the absence of anything else to the contrary. That would have the effect of discharging the orders of this court issued against the first and third Defendants on 7th February 2006, 28th February 2006 with immediate effect. On the other hand, the interim orders issued by the Commissioner on 10th March restraining the logging activities of the second Plaintiff must now be confirmed as interlocutory orders. I note submissions of Mr. Katahanas that the first Defendant recognises that the validity of the third Defendant’s licence is also at stake in this case and that he does not object to any orders as well which would restrain the third Defendants from carrying out any logging activities on the land at this point of time despite the existence of a timber licence in their possession. The third Defendant does not object such order being issued.

Accordingly I issue orders as follows:

1. That the interim orders of this court issued on 7th February 2006 and continued on 28th February 2006 are hereby discharged.
   
2. That the orders of the Court of 10th March 2006 restraining the first and second Plaintiffs, their servants and agents from continuing with any logging operations on the disputed land are to continue until further orders, subject to the removal of all logs already felled on the ground and are to be exported.
   
3. That 15% of the proceeds of sale of the logs shall be deposited into a joint solicitor’s trust account in the names of Solicitors for the first and second Plaintiffs and first and third Defendants.
   
4. That taxes, duties and reasonable expenses may be deducted.
   
5. That the first and second Plaintiffs shall provide an account of all logs felled and exported from the disputed land by species, volume and price.
   
6. The first and third Defendants are hereby restrained from felling, removing or exporting any logs from the said disputed land as well.
   
7. Costs to be reserved.
   

The Court.