Misitana v Asanao Forest Management Ltd [2012] SBHC 129; HCSI-CC 421 of 2011 (27 November 2012)

HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 421 of 2011.

BETWEEN:

REDLEY MISITANA First Claimant
(Representing Gwaunamanu Tribe).

AND:

FRANCIS JORDAN LAFUIA and SAM
RAMOSAE
Second Claimant
(Representing Fulaiano Tribe).

AND:

ASANAO FOREST MANAGEMENT LTD
First Defendant

AND:

DAIDO (SI) LTD
Second Defendant

AND:

ANDREW LOBOI
Third Defendant

AND:

JOSEPH FANETA SIRA
Fourth Defendant

AND:

SIMON RAMOIFAI
Fifth Defendant

Date of Hearing: 19th November, 2012
Date of Ruling: 27th November, 2012

Mr. D. Tigulu for the Claimants.
Mrs. L. Ramo for the Defendants.

RULING

Faukona J: On 12th March, 2012 various interim orders were perfected by this Court. One of which is significant to this application in which read;

.."that an interim order is granted that all felling and logging shall cease forthwith except as permitted by section 4 (1) (a) of the Forest Resources and Timber Utilisation Act".

2. This application was filed on 22nd May, 2012, by the Defendants. The purpose is to involve the inherent power of this Court to vary Order 2, to allow the First to Third Defendants to ship and export cargo comprising over 256 vitex logs sourced from Fakato land under which they have milling licence No. A20836.

3. Subsequent upon grant of the application the Defendants desire 10% of the proceeds being the royalty component, including harbour fees and other related charges be restrained, whilst 90% be disposed off to cater for government tax, contractors fee and other expenses.

4. Mr Tigulu on behalf of the Claimants opposes the application. He submits there emerges no change in circumstances since the interim orders were made on 7th March 2012. The apportionment of the proceeds of 10% royalty to be restraint is opposed to. The lands upon which the logs were sourced is under dispute and in decisions in respect of two lands are in favour of his clients.

5. By numerous authorities in this jurisdiction, the High Court has inherent power to make any orders by itself. The issue of power need not to prove but ought to be taken judicial notice of.

6. I have checked on the preliminary findings of illegality operation by Chetwynd J resulting in the orders. The licence No. A20836 (HL. AL2) upon which this application premise is a milling licence. Paragraph (1) expressly stated that the licence shall only produce sawn timber except by written approval of the Commissioner of Forest. Under the licence Defendants 1-3 are only allowed to produce other form of milled timber after being approved by the Commissioner of Forest. Export of vitex in log form is not a milled timber, neither equated with other form of milled timbers allowable under the licence.

7. Letter of authority by the Commissioner of Forest granting Defendants 1-3 to export vitex in log from is strange in nature and does not fall under the statutory powers vested on him. The Commissioner has failed to make reference to a statutory provision that empowers him to grant the permit.

8. The application specifically focuses on Fakato customary land being the source from which 256 logs were extracted and stock piled at Gwaunamanu sea port. There is no evidence or exhibit of 256 logs stockpiles at Gwaunamanu sea port. All the photo exhibits concern sawn timber and four other logs lying along the road and nothing in any log pond if there is any at all.

9. I find there is no change in circumstances since the first interim restraining orders were made, neither special circumstances average to requiring a new course be taken, see Topical Forest Limited V Pou[1]. In that case, the Court of Appeal emphasized that each case have to be decided on its own merit. But in general, existence of property or fund is not sufficient by itself there must, in addition, be a reason for the order.

10. I find I could not possibly see a reason for any variation of the original orders. The only change of circumstances is the East Fataleka Chiefs decisions which were in favour of the Claimants and not the Defendants. However, despite the decisions, the question whether Fakato customary land is part of Gwaunamanu customary land or Fulaiano customary land is another issue which ought to be ascertained in a proper constituted avenue. Meantime I find there is no evidence to support the application and therefore must be dismissed with costs.

Orders:

1. Application for variation of Order 2 granted on 7th March, 2012, dismissed.

2. Costs of this application be borne by the Defendants.

The Court.

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^[1] CA – CAC 26/06