Acquilah v Jessina Timber Company [2013] SBHC 110; HCSI-CC 490 of 2011 (13 February 2013)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 490 of 2011

BETWEEN:

RAYNICK ACQUILAH
Claimant
(Representing Kua Tribe of Vagunu)

AND:

JESSINA TIMBER COMPANY
First Respondent

AND:

UNION INTERNATIONAL ENTERPRICE LTD
Second Respondent

Hearing : 4 February 2013
Ruling : 13 February 2013

Mr. Rano for the Claimant
Mr. Watts for the Respondents

RULING

This is an application by the Claimant for contempt against the First and Second Respondents. It was filed on 16 February 2012 under rule 23.8 (b) of the Solomon Islands Civil Procedure Rules 2007 (the Rules). The Claimant seeks that: (1) The proprietors of the First Respondent, namely Ricky Namusa, Nathan Hetisi, Pena Kirutu, Rodence Reggie and Rajakana Reggie be punished for contempt of the interim orders dated 20 December 2011; (2) The Directors of Union International Enterprise Ltd, namely Annie Lau Mee Sieu and Henry Lau Sieu Teck be punished for contempt of the interim order dated 20 December 2011; (3) The comptroller of customs show cause why he should not be punished for contempt of court's order dated 20 December 2011 in particular when no specific authority to export round logs was issued by the Central Bank of Solomon Islands; (4) The Commissioner of Forest Resources show cause why he should not be punished for contempt of the court order dated 20 December 2011 and in particular when no specific authority to export round logs was issued by the Central Bank of Solomon Islands; (5) A freezing order against the account of the First and Second Defendants held in all commercial banks until further orders; and costs on indemnity basis to be paid by the First and Second Respondents.

The Claimant asserts that the Respondents have not complied with the court order dated 20 December 2011. That order is in these terms: (1) interim order restraining the First and Second Respondents, their agents, servants or otherwise from entering Poi Ikusu Customary Land to fell trees, construct roads or carry out any activities of any kind or whatsoever until further orders; (2) interim order restraining the First and Second Respondents, their agents, servants or otherwise from entering Poi Ikusu Customary Land for purposes of removing or hauling the logs already felled until further orders; (3) Interim order that the proceeds of logs if already removed and sold is restrained in a bank account in the joint names of the Solicitors for the parties; (4) Liberty to apply on 3 days' notice; and (5) costs in the cause.

As mentioned in paragraph 1 above, the Claimant filed this application under rule 23.8 (b) of the Rules, which is in these terms: 23.8 (b) if the failure or contempt happens during a proceeding (a)............; (b) Another party may apply for an order that the first person be punished for contempt.

The Claimant seeks to have the comptroller of customs and the commissioner of Forests Resources be punished for failing to comply with the interim restraining orders of 20 December 2011, which gave rise to this contempt application. These two officers were not parties to the application for the interim restraining orders nor were they parties to this contempt application. The interim restraining orders merely applies to the First and Second Respondents. The Claimant did not say a word about the law upon which the court could find the two officers guilty of contempt when they were not parties to the application and the interim order of the court dated 20 December 2011. The comptroller of customs and the Commissioner of Forest Resources could only be guilty of contempt for failing to comply with the court order of 20 December 2011 if they were parties to that order. This is obvious from rule 23.8 (b) of the Rules.

There is no dispute between the parties to this application that the Kua Tribe, which the Claimant represents, owns Poi Ikusu Customary Land. There is also no dispute that the First Defendant did not acquire timber rights over that land. There is no argument between the parties that the First Defendant engaged the Second Defendant as its contractor to conduct logging operations on the Poi Ikusu Land. The First Defendant has a timber licence no. Tim 2/69. It only covers Gevala and Birutu Customary Lands. It does not cover Poi Ikusu Customary Land. There is evidence that the Respondents had felled, hauled and exported logs from Poi Ikusu Customary Land in January 2012. That is to say, the evidence from the Claimant and the report by Mr. John Palmer. No proceeds of logs exported were deposited into any joint account of Solicitors in this case. The First and Second Defendants are guilty of contempt in respect of orders 1, 2, 3 of order of 20 December 2011. Order that the 1st and 2nd Defendants' banks accounts in commercial banks in Honiara are to be freeze. Contempt orders sought in respect of the Comptroller of Customs and the Commissioner of Forest Resources are refused.

THE COURT