Kera v Attorney-General [2007] SBHC 125; HCSI-CC 153 of 2007 (31 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 153 of 2007

NATHAN KERA, RONALD KITU
AND AGNES LODGE LIMITED

-v-

ATTORNEY-GENERAL BELO BELO, RUPASI MURRAY
AND CTP INTERNATIONAL (SI) LIMITED

Date of Hearing: 31 August 2007
Date of Ruling: 31 August 2007

P. Lavery for the Applicants
P. Tegavota for the 4th Respondent
W. Rano for the 2nd Respondent
No appearance of 1st or 3rd Respondents

INTERIM RULING on motion for contempt proceedings.

Brown, J: I’m not satisfied the alleged contemnors can plead to the charges in the motion. It is a practice of the court pursuant to the Rules [which follow to all intents and purposes the old English rules] to require particulars of the breaches of the injunction so that the contemnors know clearly what they are alleged to have done in breach of the injunction. It is not the practice to use evidence by way of affidavit as the form of charge. The breaches need be carefully particularised in the motion.

As the commentary to O. 52 r. 4 of the earlier English Rules states; the notice of motion must state exactly what the alleged Contemnor has done or omitted to do which constitutes a contempt of court with sufficient particularly to enable him to meet the charge

That is plain. (Chiltern District Council v Keane (1989) 2 ALL ER 118 CA).

The motion is deficient.

It does however raise serious issues. The plaintiff is at liberty to reconsider the terms of the motion in accordance with my ruling.

The motion is stood over to a date to be fixed by the Registrar, a date in November following the Court of Appeal sittings.

Mr. Lavery also raises the issue of logs which appear to have, on the affidavits already been felled and which remain either in the bush or at the log pond, awaiting sale or shipment. Logs deteriorate over time. It would be wrong if the logs were allowed to waste away since such loss would be inexcusable. The damage has been done by the felling. To allow further loss should not be countenanced. The right to the timber remains with those able to grant the permission to log. That is not in issue.

In the circumstances, on the oral application of both the 2nd and 4th respondents. I propose to vary the injunctive order sufficiently to allow the sale of logs currently felled. If possible to avoid future argument an officer of Forestry should accompany those seeking the sale of particular logs so as to ensure no further logging takes place.

I made this concession for it would appear the Court of Appeal has recognised such a practice; [Tropic Forest Products v George Pou] unreported Court of Appeal May 2007) whereby such timber should be sold.

In this case the argument concerns the breach of the Environmental Act so that there is unlikely to be issue over the distribution of proceeds under the agreement to log. I am not of a mind to direct the holding of any part of the sale proceeds to await the finding on the Environmental question for funds cannot be set apart for such a purpose.

I vary then the orders of the 8th May particularly Order 1, so as to permit as "a related activity", the sale of logs felled currently in the bush or at the log pond. The respondents interested in such sale shall account by metric size number and species for the logs shipped or sold. That account shall be given the plaintiff within 14 days of sale or shipping whichever first occurs.

The fact that permission has been afforded these respondents shall not be seen to affect their liability in terms of the original order of the 8 May confirmed 25 May 2007.

The costs of today shall be reserved.

I wish to record that this ruling was made on an oral application for an adjournment. The court did not hear argument on the substantive issue

THE COURT