Lema General Store Ltd v Chung Sol Co Ltd [2013] SBHC 95; HCSI-CC 134 of 2012 (20 July 2013)

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

Civil case No. 134 of 2012.

BETWEEN:

LEMA GENERAL STORE LIMITED
Claimant

AND:

CHUNG SOL COMPANY LIMITED

First Defendant

AND:

J. VEKO, MICHAEL BUBURU, JOHN
Second Defendant

KOTINESO, J. MALO, W. VURU, E. ERO,
B. BAO, M. ODU, LIDIAN RANE, LEA
VANOHE, J. OFOVAKA, S. AUNODA,
E. KOKOE, N. TEDI, M. NASORO
(Trading as Sufa Corporation Milling Project).

AND:

KAMAN TRADING LIMITED
Third Defendant

AND:

SOUTH PACIFIC WOOD COMPANY LIMITED
Third Party

Date of Hearing: 20th July, 2013.
Date of Ruling: 20th July, 2013.

Mr. W. Togamae for the Claimant.
Mr. A. Rose for Third Party.

RULING.

Faukona J: This is an application by the Third Party to vary Order 1 of the orders perfected by this Court on 17th July, 2013. This application is in the nature of urgency and calls for urgent hearing. Perhaps because of the circumstances there was no sworn statement filed in support of the application. However, Counsel for the third party seeks to accommodate two previous sworn statements filed in the main action. Interestingly one is from the Counsel for the Claimant. In the absence of a sworn statement directly in support, the Counsel for the 3rd party called Mr Lao to give oral evidence in support of the application.

2. After conclusion of submissions, I made a verbal ruling immediately. I promise to reduce my verbal ruling into writing; I now do so.

3. Order 1 of 17th July, 2013 was a restraining order restraining the Defendants including the 3rd party (current applicant) from dealing and exporting of all logs and or timbers that both 3rd Defendant and 3rd party have in their possession at JJ Auto timber yard at Ranadi and or at Ports and Customs area at Point Cruz wharf.

4. This application is to give flexibility to order 1 by varying it to allow 3rd Party export 600 cubic meters of logs to Kaoshiung from Taiwan; and to be shipped on vessel San Rafael which is expected to do loading in the afternoon on Sunday 21st July, 2013.

5. I noted that the logs to be exported are known commonly as tubi in pidgin and the botanical word for it is xanthostemon. I also noted that it is prohibited species from being exported.

6. The focus issue is whether the 3rd Party (Applicant) is permitted to deal with and export logs of the prohibited species.

7 On the entire application there is no sworn statement filed in support of the application. However, it is accepted that the oral evidence of Mr Lao, the husband of the Sole owner of the 3rd Party Company, is sufficient. In his evidence, he tendered two documents. One is from the Director of Environment and Conservation Division and addressed to the Controller of Customs. In paragraph1 of his letter it is a clear advise to the controller that approval has been granted to the 3rd party to export specimens of xanthostemon (tubi) species in timber form. The second document is a permit to export from the Commissioner of Forest. Like the first document, the Commissioner on page 2 under the heading consignment details, allow a quantity of 300 cubic metres, and on description column it mention timber tally attached. There is no timber tally attached to the export permit. Mr Lao was asked about the timber tally in which an answer given that it is in the house.

8. In both documents, as I would glean, permission was granted for export of timber of tubi species and not log. There are clear implications as to that. And the quantity specified in the Commissioner's permit is 300 cubic metres.

9. I noted there are submissions in regard to the incorporation of the 3rd party company, and its relationship with the 3rd Defendant. I consider that issue as irrelevant to this application and therefore prudent to brush it aside.

10. In this application, there is evidence that the 3rd party applied to export round logs of tubi tree and in the quantity of 600 cubic metres. He is by permit granted to export timber specimens and 300 cubic metres only. Round log has a different description in English from timber. When Solomon Islanders speak of timber it means sworn timber and is totally different from round logs. They can't be the same in any language.

11. The advice letter from the Director of Environment and Conservation specifically mention specimens of tubi species. What does that mean? Specimen in ordinary Oxford Dictionary, 4th Edition, means an individual or part taken, or whole, for example of a class used in investigation or scientific examination. Is that what the 3rd party intends those tubi species to be for investigation and scientific examination? I do not think so.

12. The 3rd party, in my view, possess a commercialise intention to make money out of those tubi species, and not for the purposes he was granted permit for. A clear view can be verified in this application. When he filed this application, the quantity mention is beyond what he was granted to export.

13. Another point to note is that there is no application to vary orders 2 of 17th July 2013, which freeze all bank accounts of the 3rd party with all commercial Banks in Solomon Islands. In this application, he seeks that the proceeds of exported logs be kept in a joint trust account by the Solicitors or the Applicant's bank account. It would be out of sense and improper to accept the 3rd Party's bank account because there is no bank account open, they are all freeze. In my opinion, the banks in this country with such an order may be reluctant to open a joint trust account because it relates to proceeds from logging which has been restraint.

14. With the circumstances the 3rd Party confronted, I opted not to grant the application.

Orders:

1. Application to vary order 1 of 17th July, 2013 refused.

2. Cost payable to the Claimant by 3rd Party.

The Court.