JP Enterprises Ltd v Choe Integrated Development Company Ltd [2010] SBHC 5; HCSI-CC 96 of 2005 (23 February 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 96 of 2005

BETWEEN:

JP ENTERPRISES LIMITED
First Claimant

AND:

CHILLION MAEPIO, DONALD DEVESI,
JONATHAN KEKEVU, JAIRUS SALATO,
ELMAH KOROYAH, WATSON, TIVURU,
AMROSE NGATU, JOSEPH BATES,
LAWRENCE KILIVISI AND TIMOTHY SUSA
Second – Fifth Claimants

AND:

CHOE INTEGRATED DEVELOPMENT COMPANY LIMITED
First Defendant

AND:

ATTORNEY GENERAL
(representing the Commissioner of Forest Resources)
Second Defendant

AND:

THE PREMIER OF WESTERN PROVINCE
(for and on behalf of the Western Provincial Assembly)
Third Defendant

AND:

RIMA LIMITED
Fourth Defendant

Date of Hearing: 19 February 2010
Date of Decision: 23 February 2010

Mr. A. Nori and Mr. P. Tegavota for First to Fifth Claimants
Mr. A. Ashley for First and Fourth defendants
Mr. Damilea for Second and Third Defendants

DECISION ON APPLICATIONS TO DISMISS CLAIM AND FOR CONTEMPT

Cameron PJ:

1 The first claimant JP Enterprises Ltd (JPE Ltd) was the holder of timber felling licences A10102 and A10633 over various customary lands in South New Georgia, Western Province. According to its original statement of claim filed as long ago as 22 February 2005, the second licence, A10633, covered Guva, Choki and Chale customary land, being land adjacent to Nono land covered by the first licence A10102.

2 The first defendant in late 2004 applied for a timber licence over lands which included the land covered by JPE Ltd’s second licence A10633. JPE Ltd then sought and obtained on 4 March 2005 ex parte orders restraining the first defendant Choe Integrated Development Company Limited (Choe Ltd) from dealing with Guva, Choke and Chale customary land. Choe Ltd maintains that it was not served with that ex parte order until 2010, but the first claimant disputes this.

3 In any event, notwithstanding that ex parte order Choe Ltd went on to acquire timber licence no. A10735 on 28 August 2009, which covered Choe Peka, Choe Ulu and Choe Kokorapa land in South New Georgia Island. These lands included land contained within Guva, Choke and Chale customary land over which JPE Ltd held licence A10633. In association with the fourth defendant, Choe Ltd commenced logging in late 2009. JPE Ltd then again sought and obtained ex parte orders from this Court on 21 December 2009, restraining amongst other things Choe Ltd from continuing the logging operations under licence A10735. Choe Ltd applied for a discharge of the ex parte orders but that was declined on 19 January 2010.

4 Then on 11 February 2010 the Chief Justice issued a reserved decision in CC 316/2007 (in which JPE Ltd was a party), declaring that JPE Ltd’s felling licences A10102 and A10633 were null and void because of deficiencies in the timber rights processes leading up to the issue of those licences.

5 Choe Ltd and the fourth defendant now apply to dismiss the claim in its entirety. The ground relied on is that the very basis for the previous restraining orders, namely the existence of licences in favour of JPE Ltd pre-dating Choe Ltd’s licence, no longer applies, given the finding that the licences are null and void.

6 Mr. Nori for JPE Ltd advised the Court that the decision of 11 February 2010 in CC 316/2007 will be challenged, both by way of an appeal and by way of an application under rule 17.54 of the Civil Procedure Rules 2007 inviting the Court to amend or set aside one or more of the orders before the orders are finalised by filing. Notwithstanding this, the Court has delivered an unequivocal ruling that JPE Ltd’s licences A10102 and A10633 are null and void, and unless and until there are further orders to the contrary that represents the current legal position.

7 Further, Mr. Nori points to the fact that the ex parte orders made by this Court on 21 December 2009 included an order joining the second to fifth claimants, who assert rights of ownership to the lands in question. Mr. Nori also drew attention to the fact that in the amended claim dated 31 December 2009 there are allegations (para 9 to 13 of the amended claim) seeking to impugn the timber rights process by which Choe Ltd acquired its licence. Thus Mr. Nori argued that the part of the amended claim relating to this aspect of the challenge to Choe Ltd’s licence ought not to be dismissed.

8 However, when one examines closely the allegations in paragraphs 9 to 13 of the amended claim, it is apparent that all they do is assert that the timber rights hearing in respect of Choe Ltd was flawed because the timber rights in question had already been granted to JPE Ltd. In other words, the challenge is based on the fact that JPE Ltd was already the licence holder of the lands in dispute. With JPE Ltd’s licences now declared to be null and void, that challenge must fail.

9 In paragraph 19 of the amended claim there is an allegation that the second to fifth claimants, asserted to be the rightful owners in custom of the land and timber covered by Choe Ltd’s licence, were not consulted or made aware of the timber rights hearing for Choe Ltd’s licence. However, this assertion is contrary to the CLAC decision of 4 November 2006 granting ownership of the land in question to persons associated with the first defendant Choe Ltd, and not those associated with JPE Ltd. That decision still stands.

10 Further, I am advised by Mr. Nori that there is already a fullsome challenge to Choe Ltd’s licence in the counterclaim in CC 489 v. 2009, which counterclaim is yet to be heard. Added to that is the fact that the attack on Choe Ltd’s licence in the present case for grounds other than the existence of previous licences in favour of JPE Ltd introduces a totally new cause of action, and one introduced pursuant to an ex parte application by JPE Ltd which fails to disclose that Choe Ltd’s licence is already the subject of challenge in CC 489 of 2009. In my view its introduction in these circumstances is an abuse of the process of the Court.

11 For all these reasons I have no hesitation in dismissing the amended claim as disclosing no reasonable cause of action and being an abuse of process of this Court. Mr. Nori contended that in the event the amended claim was dismissed, the previous interim orders directing payment of the proceeds into a joint trust account should be preserved. The basis for this submission was that there exists the challenge to Choe Ltd’s licence in CC 489 of 2009, and so it was argued funds needed to be preserved pending the outcome of that case. Having decided that the present case should be dismissed the existence of other proceedings provides no basis for the continuation of any orders previously made.

12 This leaves JPE Ltd’s application for contempt against the first and fourth defendants for allegedly felling logs after this Court’s ex parte order on 21 December 2009 restraining them from doing so. JPE Ltd persisted with this application notwithstanding the recent declaration by this Court that its licences were null and void.

13 I have considered the material filed in support and in opposition to this application, I am not satisfied on the balance of probabilities that there was continued logging beyond 21 December 2009. It is true that the documents placed before the Court by the first and fourth defendants in support of their application to discharge the ex parte orders of 21 December 2009 only referred to 5000 cubic metres of logs, whereas 9706 cubic metres have now been exported in two shipments. The fourth defendant’s explanation for this is that at the time the information was placed before the Court there was only one contract with the shippers, and that was to export 5000 cubic metres. This appears to be a credible explanation.

14 Further, the ex parte orders permitted the extraction of logs already felled. Bishop Tuhenua’s sworn statement dated 16 February 2010 on behalf of the fourth defendant that the extra 4706 cubic metres over and above the 5000 cubic metres represented the balance of logs already felled as at 21 December 2009 is a substantive and credible reply to the assertions made by JPE Ltd.

15 Mr. Nori urged the Court to seek additional documents from the first and fourth defendants in the nature of original survey plans and approved coupe plans, which he contended would demonstrate by deduction that 9706 cubic metres was too great a quantity of logs to have been felled between the start of the logging operations and 21 December 2009, when the ex parte order restraining logging was made. I am not convinced that there is a sufficient basis in the material before the Court to warrant in effect an ongoing investigation. In addition, I note that while JPE Ltd did have standing to pursue the contempt application notwithstanding the invalidity of its licences, it is now hardly in a strong position to insist that this Court keep the contempt matter alive by demanding further documentation from counsel for the first and fourth defendants.

16 For these reasons, I dismiss JPE’s claim (including the amended statement of claim) in its entirety. I also dismiss JPE Ltd’s application for contempt.

17 I order that costs be paid by JPE Ltd to the first and fourth defendants on a standard basis. I also make no order of costs in respect of the application for contempt. I make no order of costs in favour of the second and third defendants, who merely abided the decision of the Court.

18 If the amount of costs cannot be agreed within 28 days, costs are to be taxed.

BY THE COURT

Justice IDR Cameron
Puisne Judge