Zaku v Eastern Development Enterprises Ltd [2008] SBHC 35; HCSI-CC 275 of 2007 (4 March 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 275 of 2007

BROWNLESS ZAKU

- V –
EASTERN DEVELOPMENT ENTERPRISES LIMITED
(FIRST DEFENDANT)

AND

COMMISSIONER OF FORESTS
(SECOND DEFENDANT)

High Court of Solomon Islands
(Palmer CJ.)

Civil Case Number 275 of 2007

Date of Hearing: 28th November 2007
Date of Judgment: 4th March 2008

Bridge Lawyers for the Applicant/Plaintiff
Global Lawyers for the first Respondent/first Defendant
R. Firigeni for the second Respondent/second Defendant.

Palmer CJ.:

The applicant, Brownless Zaku (“Zaku”) seeks interim restraining orders against Eastern Development Enterprises Limited (“EDE”) from carrying out logging operations in Kolourungui and Sukikelehi land areas in West Isabel (“the KS land”) on the grounds that the Isabel Provincial Executive (“IPE”) failed to deliver and publish its findings following a public hearing convened on 14^th June 2006 to determine timber rights over the KS land. As a consequence he had been deprived of his rights of appeal against such determination and deprived of his timber rights by the execution of a timber rights agreement by other land owners, Allan Gagaha, William Goti, Raymond Leke and Christian Nagiro (“Gagaha and Others”) and subsequent issue of a timber licence to EDE.

Zaku is the representative of the Sinagi Clan. At the timber rights hearing on 14^th June 2006 he objected on behalf of his tribe to the granting of timber rights to EDE as the rightful person together with others representing the Sinagi clan. Gagaha and Others on the other hand, on behalf of the Rurugu Pelopeka clan, claim competing timber rights over the same land (KS land).

The minutes of that timber rights hearing stated that the decision would be made later. According to Zaku no determination was ever published until sometime later when he found out himself through his own inquiries that a determination had actually been released.

Subsequently, a timber rights agreement was executed on 14st December 2006 and a timber licence (no. A10512) issued on 19th March 2007.

On 9th October 2006, Zaku wrote to the Provincial Secretary of Isabel Province requesting a copy of the determination of the IPE. In his response, Patteson Devi, the Supervising Provincial Secretary stated that he could not find any signed copies other than a memorandum signed by Eddie Ene, the Provincial Secretary then, dated, 1st July 2006, which purportedly contained a determination in favour of Gagaha and Others. That memorandum was addressed to the Commissioner of Forests and contained a recommendation that the timber rights be granted to EDE by Gagaha and Others.

That memorandum however was not in the prescribed form and therefore cannot amount to the issue of a valid Form II. There is however in the materials put before this court a document purporting to be a Form II but dated 14th June 2006, the date on which the timber rights hearing was convened. It also purported to contain the names of the persons determined by the IPE as the rightful persons entitled to grant timber rights but was incorrectly filled with the names of members of the IPE being listed as the persons entitled to grant timber rights.

The validity of that form is a triable issue in view of the discrepancy in the minutes of the IPE that a determination was to be handed down later. Its accuracy and veracity however will be tested at trial.

The Provincial Secretary, Eddie Ene has filed an affidavit in response to the allegations raised by Zaku but has not dealt with them in detail. His affidavit is quite vague and ambiguous.

The Commissioner of Forests is also obliged in the circumstances to ensure that the requirements of the Forest Resources and Timber Utilisation Act are complied with before issuing any licence. It is possible he may have been mis-led by Eddie Ene but that is a matter which can be determined at trial. On the materials before this court, no valid Form II appears to have been published by Eddie Ene.

I am satisfied in the circumstances there are triable issues that have been raised before this court in relation to the validity of the timber rights agreement and the licence.

I am also satisfied that if the restraining orders are not issued now and logging is allowed to continue that irreparable harm and damage to the environment and forests over the KS land are bound to be caused. I am also satisfied that monetary damages are simply inadequate to compensate Zaku if at the end of the day he should win his case.

The balance of convenience therefore lies firmly in favour of maintaining the status quo until the issues in dispute in this court are finally determined.

Orders of the Court:

1. Grant orders for interim injunction against EDE from carrying out further logging operations in the KS land until trial or further orders.
   
2. Any proceeds from the KS land are to be paid into an interest bearing trust account in the joint names of the parties’ solicitors until trial or further orders.
   
3. Grant waiver of undertaking for damages in this case.
   
4. Costs in the cause.
   

The Court.