Success Company Ltd v Omex Ltd [2013] SBHC 86; HCSI-CC 175 of 2012 (18 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 175 of 2012

BETWEEN:

Success Company Limited
Claimant

AND:

Omex Limited
First Defendant

AND:

Commissioner of Forests
Second Defendant

AND:

Guadalcanal Province
Third Defendant

AND:

Attorney General
Fourth Defendant

Date of Ruling : 18 July 2013

Mr. Suri for the Claimant
Mr. Hapa for the First Defendant
Mr. Banuve for the Second, Third and Fourth Defendant

RULING

1. This is an application by the First Defendant filed on 25th September 2012 for an order that the Amended claim for Judicial Review filed on 30 July 2012: (a) discloses no reasonable cause of action; and (2) constitutes an abuse of the process of the court.
   
2. In its amended claim of 30 July 2012, the Claimant seeks: (1) An order declaring that, according to the geographical maps, the land described as Kusumba 2 in the First Defendant's Felling Licence No. A101104 is the same land described as Rauvuneha/Honiata in the Claimant's Felling Licence No. Tim 2/38. (2) An order declaring that since the Claimant's Felling No. Tim 2/38 was first in time, which had not expired or been revoked, the inclusion of the land in dispute on the First Defendant's Licence was invalid and void in so far as the Second Defendant has no statutory power under the Forest Resources and Timber Utilisation Act to grant two Felling Licences to two separate companies over the same land. (3) An order quashing the decision of the Second Defendant to include the land described by the First Defendant as Kusumba 2 in the Felling Licence No. A101104 issued to the First Defendant, which became effective on 18 August 2011. (4) An order declaring the First Defendant trespassed onto Rauvuneha/Honiata Customary Land and had converted trees or logs produced for its own use to the detriment of the Claimant. (5) An order that the Second Defendant excise the land described as Kusumba 2 from the First Defendants Felling Licence No. A101104. (6) An order that the First Defendant pays to the Claimant full value of the logs felled, harvested, extracted and taken away for sale or abandoned to rot except export duty payable to the Government. (7) Further and other orders as the court deems meet and (8) costs against the First Defendant.
   
3. In support of its application, the First Defendant contends that the Claimant's Amended claim be dismissed on the ground that the Felling Licence No. Tim/38 issued to the Claimant and effective from 23 December 2010 until 23 December 2015 is null and void for the following reasons: (a) there was no authority conferred by any approved agreement (Form iv standard logging agreement) on the date of the issuance of the felling licence to the Claimant; and/or (b) the earlier suspension of the felling licence issued to the Claimant No. Tim/38 was never lifted; and/or (c ) the undated agreement for Revival, Renewal and Extension of 1993 Timber Rights Agreement executed by the Claimant and particular persons in 2012 (marked Exhibit"R4" in Mr. Onesimo Reinunu's sworn statement filed on July 27 2012) is in capable in law from reviving the purported 1993 timber rights agreement in the right of the following: (i) the signatories in the undated agreement for Revival, Renewal and Extension of 1993 Timber Rights Agreement except for Mr. Onesimo Reinunu; (ii) 2 of the persons who signed the 1993 timber rights agreement including Messrs Siriako Usa and Peter Chachi are still alive but never consulted; and (iii) no timber rights process has been instituted by the Claimant nor the signatories of the undated agreement for revival, renewal and extension of the 1993 Timber Rights Agreement including Messrs Onesimo Reinunu, Francis Orodani, Timothy Papagu, Gabriel Vahi, Jimi Osaka and Moses Sam to identify them as the persons capable of giving timber rights under Part III of the Forest Resources and Timber Utilization Act [Cap. 40].
   
4. The Claimant's grounds for opposing the application for strike out are inter alia: the proceeding was allowed to proceed by the court by a ruling on 27 July 2012. The Claimant filed the Amended claim for judicial review on 30 July 2012. This was because the court was satisfied that there was a triable issue. That is to say, "that two licences were issued over the land in dispute".
   
5. In the cause of the perusal of the materials and the submissions filed by the First Defendant and the Claimant regarding this application, the court is of the view that there are triable issue disclosed requiring determination at the end of the trial. The most important of them concerns the issue of two Felling Licences being issued over the land in dispute. This application is accordingly refused and dismissed.
   

Order: (1) Application is refused and is accordingly dismissed.

(2) The First Defendant is to pay the Claimant's costs on indemnity basis of this application.

(3) This claim is adjourned to 25 July 2013 at 9.30am for mention.

THE COURT