Misitana v Asanao Forest Mangement Ltd [2013] SBHC 205; HCSI-CC 421 of 2011 (31 May 2013)

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

Civil Case No. 421 of 2011.

BETWEEN:

REDLEY MISITANA (Representing Gwaunamanu Tribe)
First Claimants

AND:

FRANCIS JORDAN LAFUIA and SIMON RAMOSAEA (Representing Fulaiano Tribe)
Second Claimants

AND:

ASANAO FOREST MANAGEMENT LIMITED
First Defendant

AND:

DAIDO (SI) LIMITED
Second Defendant

AND:

ANDREW LOBOI
Third Defendant

AND:

JOSEPH FANETA SIRA
Fourth Defendant

AND:

SIMON RAMOIFAI
Fifth Defendant.

Date of Hearing: 24th May, 2013
Date of Ruling: 31st May, 2013.

Mr. D Tigulu for Claimants 1 and 2
Mr. D Marahare for all the Defendants.

RULING

Faukona J: This application was filed on 17th May, 2013. The required documents in support were also filed on the same date. The application seeks two major interlocutory orders. Firstly, that all logs felled from Gwaunamanu and Fulaiana lands be sold, the proceeds thereof are paid into a joint Solicitors interest trust account pending trial. And secondly that the third Defendant, his family members, servants, agents and invitees be restraint from threatening violence, causing disturbances to the First Claimants at Manu village, East Fateleke, Malaita Province.

2. A brief history of this case reflects that there were other similar applications made in the past. One was heard on 7th March, 2012. Among other issues an injunction was granted against any felling or logging activities. On 27th November 2012 on application to vary orders for injunction was refused.

3. Apparently, from the accent of the orders, and current submissions, there are indeed logs that had been felled within the respective customary lands which still either stockpile at a log pond or in the forests. In such circumstances that this application is intended to cure the mischief of allowing idolatry of the logs which by now have their values begin to deteriorate, be sold with reasonable deduction of overhead expenditures.

4. The argument advanced by Mr Marahare is a blunt objection to the application for two major reasons; may be more. Firstly at the two previous similar applications, the issue of selling of the felled logs was not raised. Secondly that the logs had been lying idol for more than a year now. Therefore, its value had been drastically deteriorating and no buyer would be able to buy them. Hence, the Defendants have no longer any interest to sell or export the logs.

5. In respond to that submission Mr Tigulu offer an option on behalf of his clients that if the Defendants could not able to sell the logs then the claimants would find a buyer.

6. In a logging industry, under normal circumstances, the logging company would act swiftly and responsibly to sell its felled logs. And of course ensure to secure funds for operational costs and expected be reimbursed by selling of the logs. In this case the Defendants have refused fearing that further funds be expended with little return as the value of logs have now of a less significant value. That argument in my view has held some rationality. Nothing was done previously though intended to sell the logs because of the orders. Now the logs are laying in ruin without expected value. I suggest that the option to sell the logs must remain open to the parties. Should any party is willing and is ready he can come back to court and sought the necessary orders.

7. Whilst the offer by the Claimants appears to be favourable by way of assistance, the problem with that is that, the claimants offer no evidence at all as to any interested buyer. Actually, no name is mention. To say you can do it by finding a buyer is too general and does not convince the Court as the best option. It's an open option which is perhaps intended to bridge the gap but vague in its reality, hence unconvincing.

8. Concerning the order restraining the Third Defendant, his family, servants, agents and invitees from being indulged in threatening violence, indeed it is accepted that there is no evidence at all of any independent occasion where threatening violence is occasioned or likely to be occasioned. In true form there may be some kind of responses related to the non-exportation or of selling of the idle logs. It can be accepted that such circumstance prompted confrontation. Whether that confrontation materialises in indulgent of physical threatening violence or not, cannot be verified by any evidence

9. With the reasons as aforementioned I am satisfied that there is no evidence to support the application, hence must be dismissed.

Order:
1. Application dismissed.
2. Cost be paid to the Defendants.

The Court.