Middle Island Investment Pty Ltd v Ghiro [2013] SBHC 146; HCSI CC 122 of 2013 (15 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 122 of 2013.

BETWEEN:

MIDDLE ISLANDS INVESTMENT PTY LTD Claimant.

AND:

BENARD GHIRO
Defendant.

Date of Hearing: 15th November, 2013.
Date of Ruling: 15th November, 2013.

Mr. Tabo for the Claimant.
Mr. Tigulu for the Defendant.

DECISION.

Faukona J: This is an inter-parte hearing following an urgent application by the Claimant on 3rd May, 2013 which had resulted in this Court granted ex-parte injunctive orders.

2. In these proceedings, the Defendant has applied to strike out the Claimants claim pursuant to Rule 5.43 (b). Rule 5.43 says, if the claim is not served within three months from the date of filing then the claim ceases to be any effect.

3. From evidence, the claim was filed on 10th May, 2013, and was served on the Defendant on 4th October 2013, somewhat more than four months. It is a clear breach of the rules and Mr Tabo having acknowledged their failure conceded that his client's claim be ceased and of no effect. Nevertheless, there is opportunity to file a fresh claim, which Mr. Tabo undertakes to do.

4. It is apparent that following the ineffectual of the claim, the ex-parte orders and anything else could not stand and hence should be discharged.

5. The second issue concerns the licences. There is evidence to show that both the Claimant and the Defendant had two separate felling licences, and both operated by felling and extraction of logs from the same concession area. Why this ought to have been occurred, is a question the Forestry Authority need to take responsibility to answer it.

6. It appears both Counsels agree there were two separate licences operated in one concession area. Mr Tabo submits there could have been lands own by other people, which for some reason prefer the Claimants. This may perhaps emerge from land ownership disputes, which ought to be sorted out in a proper forum.

7. In relation to the two licences, it is not contested that the licence issued to the Defendant was first in time on 15th June, 2005 and was expired on 15th June 2013. On the date of expiry, the licence was renewed for further five years and due to expire on 15th June, 2018. On the other hand, there was another licence issued to the Claimant over the same concession areas on 19th September, 2011 and due to expire on 19th September, 2016.

8. Mr Tabo agrees he will file a fresh claim and would include the Commissioner of Forest as a party to answer very important questions and issues. It would appear both Counsels appreciate that should occur and with that nod a concession is granted to them.

9. The manner in which the two licences were operating in one concession area that prompted reaction by the Defendant. Evidence reveals that attempts were made to sort out with the Authority but could not able. He may have been driven over the time. In circumstances as this, it is expected. The Defendant is a landowner and at the same time a licensee. As a result of his reaction the interim orders were made.

10. Having conceded to the breaches of Rule 5.43 by the Claimant, and having acknowledged that two licences were operating within one concession area, which should not have been if the Commissioner of Forest exercises its duty diligently, and with care. With the assistance of the case Taraoa V Manelusi[1], I must grant injunction against the claimant, which I do, until filing of a fresh claim.

Orders:

1. The Ex-parted injunctive order made on 3rd May, 2013, is hereby fully discharged.

2. That the Claimant's claim filed on 10th May 2013, against the Defendant ceases to have any effect pursuant to Rule 5.43(b) of the Rules.

3. That an injunction order is hereby imposed restraining the Claimant, its
Servants and agents from carrying out logging operations within lands under CTP International (SI) Felling Licence No. A10422 until fresh claim if filed to determine the validity of the Claimant's Felling Licence No. A101039.

3. Cost is payable to the Defendants.

The Court.

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^[1] [2007] SBHC 129; HCSI-CC 609 of 2005 (12 October 2007).