Eta v Attorney General, Representing Commissioner of Forests and Director of Environment [2012] SBHC 51; HCSI-CC 302 of 2008 (25 May 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Claim No. 302 of 2008

BETWEEN:

CLEMENT ETA
Claimant
(Representing Sinagi Clan)

AND:

ATTORNEY GENEARL
First Defendant
(Representing Commissioner of Forests and
Director Environment)

AND:

MEGA ENTERPRISES LIMITED
Second Defendant

AND:

DAVID MAURE
Third Defendant
(Representing Makaka Clan)

Date of Hearing : 28 February 2012
Date of Ruling : 25 May 2012

W Rano for the Claimant
R Firigeni for the First Defendant
T Kama and E Soma for the Second and Third Defendant

RULING

Mwanesalua J:

[1] This is an application by the Second Defendant, filed on 14 October 2011.

[2] The Second Defendant applies for the following orders:

1. That paragraph 2 of the Order of 27 July 2011 be set aside, varied or amended to allow only timber royalties from logs extracted from Central Barora Ite and exported and sold by the Second Defendant be paid into the Central Barora Ite High Court Civil Case No. 302 Joint Trust Account Number 110000001280 in Bank of South Pacific.
2. This Honourable Court approves the operational costs of the Second Defendant.
3. Such further or other order the Honourable court may seem meet.
4. The Costs of and incidental to this application be paid by the Claimant.
   

[3] The Court Order of 27th July 2011 is in these terms:

"Before His Lordship Mr. Justice David Chetwynd on the 27th July 2011.

Upon Hearing Mr. Rano of Counsel for the Claimant, Mr. Firigeni of Counsel for the First Defendant and Messrs Kama and Soma of Counsels for the Second and Third Defendants

And By CONSENT of the parties in Consultation with their Solicitors

IT IS HEREBY ADJUDGED AND ORDERED as follows:

1. That in consequence of the quashing of the Isabel Customary Land Appeal Court decision dated 23rd April 2008 and that there being no proper timber processes under the Forest Resources and Timber utilisation Act (Cap. 40), as amended, the Felling Licence Number A10819 issued on 15th July 2008 is void and hereby quashed.
   
2. That in consequence thereof all proceeds of logs from Central Barora Ite exported or sold by the Second Defendant be paid into the Central Barora Ite High Court Civil Case No. 302/08 Joint Trust Account Number 110000001280 with South Pacific Bank.
   
3. That in consequence of change of advocate filed by Mr Rano of Rano & Company, the joint trust account name shall be amended and substituted as follows "Sol-law/Rano & Company Central Barora Ite High Court Civil Case No. 302/08".
   
4. Liberty to apply within 7 days' notice.
   
5. Parties in this proceeding to bear their own costs."
   

[4] Robert Rihuoha is a Senior Enforcement Officer in the Ministry of Forests. His sworn statement was filed by the First Defendant on 24th September 2009. Paragraphs 5 and 6 of that sworn statement state:

" 5. The Commissioner of Forests has never issued any Licence to Mega Enterprises Limited in relation to the Central Barora Ite Land or has no knowledge of endorsing any Form I, Form II, Form III, Form IV.

6. Any alleged illegal operation by Mega Enterprises Limited is not endorsed or condoned by the Commissioner of Forests."

[5] The Claimant, Clement Eta, filed a sworn statement on 28th February 2012 in relation to the background leading up to the Consent Order of 27th July 2011. That background is provided in paragraph 3, 4 and 5 of his sworn statement as follows;

"3. A trial of this matter including Civil Case 229 of 2008, 230 of 2008 and 374 of 2008 took place from 26 July to 27 July 2011. Half way through the trial (upon completion of the Claimant's case) on 27 July 2011 Justice Chetwynd was satisfied that the trial should not continue and urge the Defendants to consent to a final judgment.

4. On 27 July 2011 consent judgment and its terms were discussed in court and thereafter our solicitor went and typed up the agreed terms. On the same day a draft was hurriedly delivered to the Defendant's solicitor under the cover of a letter dated the same day.

5. We return to court the next day where the Order was signed and delivered to the court and later filed."

[6] The issue between the Second Defendant and the Claimant in this application is whether the order of 27 July 2011 an interlocutory or a final order. The Second Defendant contends that it was an interlocutory order. The Claimant's case is that it was a final order.

[7] I have considered the submissions, the rules and the authorities cited by counsels for the parties in this application. It is apparent that the consent order dated 27 July 2011 was entered following the trial of Civil Cases 229 of 2008, 230 of 2008, 374 of 2008 and 302 of 2011, being heard together after consolidation. As Mr. Rano submitted, following the close of the Claimant's, case on 27 July 2011, Justice Chetwynd was satisfied that on the balance of probabilities that the Claimants in all cases have proved their cases against the Defendants. Justice Chetwynd found that Mr. Kama did not in his cross examination of the Claimants witnesses able to shift the evidentiary burden. As a result the Defendants and the Claimants negotiated a consent judgment and order.

[9] The decision of this court is that the court order of 27 July 2011 is a final order. It is not an interlocutory order. It was agreed and settled by the parties to it.

ORDER (1) The Application is dismissed.

(2) The Second Defendant is to pay the Claimant's costs of this application.

THE COURT