Middle Island Investment Pty Ltd v Attorney General [2014] SBHC 122; HCSI-CC 464 of 2013 (15 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

MIDDLE ISLAND INVESTMENT PTY LTD
Claimant

AND:

CTP INTERNATIONAL (SI) COMPANY LTD
1st Defendant

AND:

ATTORNEY GENERAL
2nd Defendant
(representing the Commissioner of Forests)

Mr. W. Togamae for the Claimant.
Mr. P. Tegavota for the 1st Defendant.
Ms. F. Taeburi for the 2nd Defendant.

Date of hearing: 4 August 2014.
Date of Judgment: 15 September 2014.

RULING
Apaniai, PJ:

1. The 1st defendant, CTP international (SI) Company Ltd ("CTP"), seeks the following interlocutory orders against the claimant:-
   

[1] That the orders issued on 15 November 2013 in Civil Case No. 122 of 2013 to continue in force over various customary lands in Ward 11 and part of Ward 10 in East and Central Bauro of Makira province, particularly those lands covered by the claimant's felling licence No. A101039 issued on 19 September 2011 or lands covered any amended license until further orders.

[2] That the claimant disclose by way of sworn statement all the log shipments it made so far since 15 November 2013 under felling license No. A101039 or under any amended license issued thereafter setting out:-

[a] the total number of log shipments;

[b] the total volume of the logs shipped;

[c] the species shipped;

[d] the FOB value of the logs shipped;

[e] the total export duties payable;

[f] the total royalties paid; and,

[g] the total amount representing 60% of the total FOB values from all the log shipments received by the claimant.

[3] That the claimant within 30 days from the date of these orders pay into an interest bearing account in the joint names of the solicitors for the parties, less export duty and royalties, 60% of the total FOB values derived from all shipments it made since 15 November 2013 under felling license No. A101039 including under any amendment license and the funds so injuncted shall not be released until further orders of the court.

[4] That the claimants shall not remove any of its logging machines and equipment out of its purported licensed concession but shall bring them down to the log pond area to be stored until further orders; and,

[5] That, until further orders, the claimants, its servants, agents, employees or persons authorised by the claimant, shall not deal with any customary lands within Ward 11 and part of ward 10 in East and Central Bauro of Makira Province for the purposes of logging and particularly those lands covered by the 1st defendant's renewed felling license No. A10442 issued on 27 June 2013 or lands under any of its amended license.

[6] That the costs of and incidental to this application be paid by the claimant on standard basis.

[7] Such other orders as the court sees fit.

2. The application is supported by sworn statement by Bernard Ghiro filed on 10 July 2014 and sworn statement by Alfred Ghiro filed on 25 June 2014.
   
3. Civil Case No. 122 of 2013 ("CC. 122/13"), referred to in paragraph 1[1] above, is a proceeding between Middle Island Investment Pty Ltd ("Middle Island") as claimant and Bernard Ghiro as defendant. CTP, the applicant in the present application, is not a party in that proceeding.
   
4. In CC. 122/13, an interim order was obtained by Middle Island against Bernard Ghiro in the following terms:-
   

"1. That the ex parte injunction order against the defendant (Bernard Ghiro) is hereby full y discharged.

2. That the claimant's claim filed on the 10th May 2013 against the defendant ceases to have any effect pursuant to Rule 5.43(b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.

3. That an injunction is hereby imposed restraining the claimant (Middle Island), its servants and agents, from carrying out logging operations within lands under CTP International (SI) Felling License No. A10422 until a fresh claim is filed to determine the validity of the claimant's Felling License No. A101039.

4. That the claimant shall pay the defendant's costs."

5. There is no doubt that it is order 3 referred to in paragraph 4 above that the claimant seeks, in this proceeding, to have continued as sought in paragraph 1[1] above. It is also clear that the orders sought in paragraphs 1[2], 1[3], 1[4] and 1[5] are intended to be consequential orders if the order sought in paragraph 1[1] is granted. That means if the order sought in paragraph 1[1] is refused, it must follow that 1[2], 1[3], 1[4] and 1[5] must also be refused.
   
6. So the issue here is whether or not the order sought in paragraph 1[1] should be granted. Unfortunately, while the lands which is the subject of CC. 122/13 appears to be the same lands in the present proceeding, I do not think I can grant the order. It is clear that this proceeding and CC. 122/13 are separate proceedings. It is a well established principle of law that the court cannot make an order that will interfere with, or affect, an order made by the court in another proceeding. That principle was approved by the Court of Appeal in Emco Pacific (SI) Ltd v Emmett[1].
   
7. Accordingly, I refuse to grant the order sought in paragraph 1[1] above. That also means I cannot grant the consequential orders sought in paragraphs 1[2], 1[3], 1[4] and 1[5]. Those consequential orders are refused.
   
8. The orders of the court are:-
   

[1] The amended application by the 1st defendant filed on 10 July 2014 is dismissed.

[2] The 1st defendant shall pay the costs of the claimant of, and in connection with, the amended application on standard basis to be taxed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] Emco Pacific (SI) Ltd v Emmett [2012] SBCA 7; CA-CAC 45 of 2011 (23 March 20120.