Vakapa v Reko Enterprises [2012] SBHC 22; HCSI-CC 246 of 2011 (12 February 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 246 of 2011

BETWEEN:

STEPHEN VAKAPA
Claimant

AND:

REKO ENTEPRISES
First Defendant

AND:

OCEANIA TRADING COMPANY
Second Defendant

Date of Hearing : 13 December 2011
Date of Ruling : 12 February 2012

B Etomea for the Applicant/Second Defendant
Lidimane for the Claimant

RULING

1. This is an application filed on 18 October 2011 by the Second Defendant for:
   
   1. Leave of the court to vary paragraph 1 of the interim restraining order made on 26th day of September, 2011 and perfected on 28th Day of September 2011.
      
   2. If leave is granted an order be made by consent or by the inherent power of the court to vary paragraph I of the interim restraining order perfected on the 20th day of September, 2011 in these terms:
      
      • (a) The First and Second Applicant shall only be allowed to use and enter the disputed Rohavokolo land through the access road for the purpose of extracting logs already felled and lying in the bush within the undisputed area of the Repaga Land.
        
      • (b) The First and Second Applicant shall give the Respondent notice when they will enter the disputed Rohavokolo Land to extract the logs already felled and lying within the Repaga Land.
        
      • (c) Any road access fee payment shall be paid into the solicitors joint trust account of the parties
        
   3. Cost in the Cause.
      
   4. Any other orders that the court deems fit.
      
2. The applicants seek leave to vary paragraph 1 of the interim restraining order made on 26th of September 2011 and perfected on 28th September 2011. Paragraph 1 is in the following terms:
   

"1. The First and Second Defendants be restrained, whether by themselves, their servants or agents or otherwise, from entering, carrying out any construction of any kind, cutting, feeling or removing any trees within the disputed land, until further orders".

3. The Respondent/Claimant opposed the application. The objection is based on the following reasons:
   
   • (a) The Chiefs have awarded the land to the Claimant on 23 October 2004. That decision is still in force. There is no evidence that the decision has been set aside by the local court. That means that the decision is still in force according to law.
     
   • (b) In seeking to vary the order of the court the Applicant must first show to this court that it has jurisdiction to do so; Second the Applicant must show that logs were still left lying in the disputed area and third the Applicant must show evidence to determine the variation.
     

Consideration

4. In the Sworn Statement of Eddie Ting filed on 9 November 2011, he said that all logs that have been felled on the disputed land had been counted and exported. They had become subject to order 2 of the injunction order granted on 26 September 2011. Eddie Ting is the General Manager of Oceania Trading Company Ltd (OTC).
   
5. On the other hand, in his Sworn Statement Simon Polotovae said that there were still logs in the bush at Repaga land. The logs can only be accessed through Rohavakolo land. Simon Polotovae and Eddie Ting are both in support of the application.
   
6. It is apparent from Polotovae's statement that the Applicants wanted to use the road going through Rohavakolo land to access logs felled at Repaga land. The order sought to be varied directly forbids the applicants entering Rohavokolo land. The Applicants say that they are willing to pay any access fee of $5.00 per cubic metre. The Respondent would only accept $50 per cubic metre. This is an issue which can be resolved through negotiation between the parties. It seems that the Applicants were not willing to pay that access fee so they seek variation of paragraph 1 of the order of 26 September 2011.
   
7. They have not made any submission on whether this court would have power to vary its previous order under the current civil rules of the High Court. Likewise, they have failed to establish by authority to show that this court can invoke its inherent power to amend its previous order. In the circumstances, this court will refuse the application accordingly will dismiss it.
   

Order: The Applicants to pay the Respondent's cost for hearing of this application in the sum of $2,000.00.

Order accordingly.

THE COURT