Kile v Central Magistrates Court [2014] SBHC 35; HCSI-CC 163 of 2012 (15 May 2014)

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

Civil Case No. 163 of 2012.

BETWEEN:

NELSON KILE
(Representing Baehai Clan).
Claimant

AND:

CENTRAL MAGISTRATES COURT
First Defendant

AND:

COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

AND:

LISE DUKO
Fourth Defendant

AND:

SIA ENTERPRISES LTD
Fifth Defendant.

Date of Hearing: 1st May 2014.
Date of Ruling: 15th May 2014.

Mr C. Hapa for the Claimant.
Mr E. Kii for First to Third Defendants.
Mr B. Etomea for the Fourth Defendant.
Mr D. Lidimani for the Fifth Defendant.

RULING.

Faukona J: This is an application filed by the fifth Defendant on 17th April 2014, to vary the interlocutory orders perfected by this Court on 11th April 2014. The application sought four variations. Mr Hapa does not object to variation to orders 1, 2 and 4, but objects to variation of order 3. Variation order 3 sought allowance to recover and deduct operational costs and expenses out of proceeds from all logs fell and exported.

2. The argument revolves around that all merchantable logs felled prior to the orders and scattered throughout sareai customary land, and at the log pond; which such logs were lawfully felled under the fifth Defendant's licence prior to restraint. Being denied would expose the felled logs to natural process of deterioration. There are about 1,870 logs with corresponding volume of 5, 235-309m³ already felled but yet to be hauled and exported. Mr Lidimani refers to a number of case authorities as Bako V Rozo, Mane v Evo, Tropical Forest Ltd.v Pou, Tropical Resources Development Co Ltd v Tropical Forestry Ltd, Lagobe v Lezutuni,

Poa V Attorney-General[1], and Masa V Kololeana Development Co. Ltd[2]

3. To the contrary, Mr. Hapa submits logs subject to the orders must be exported separately. The fifth Defendant need to furnish three documents;

1. sale of contract

2. Letter of credit issued in favour of fifth Defendant

3. Application for specific authority to export logs.

4. Mr Hapa continues to submit that the standard term require is reasonable costs in terms of expenses incurred. They have to be calculated. They are expenses incurred in removing of logs from the bush until that has been completed then they would work out the expenses. There is a formula used now days, that is, production cost per cubic metre. Included is felling and transporting of logs and as well as accounting work to ascertain whether a logging company profits or not.

5. The approach taken by the Courts in this jurisdiction is one, which recognised the effect an interim injunction has on commercial logging operations. It may cause financial devastation and may destroy the company so restrained, see Bako V Rozo. Therefore, the principle adopted and applied where the issue of deduction of operation expenses arise is accepted as commonality aiming at attaining its finality, Mane V Evo. Because of its effect the Courts are not entitled to ignore the practise See Pou's case.

6. However, the Courts are conscious not to and should refuse to grant orders if there is no evidence before it comprises operational expenses. The standard term applied is reasonable costs in terms of expenses incurred. There is no evidence tendered to this Court regarding expenses incurred particularising each heads. I accept Mr Hapa's submissions, perhaps it is ideal that hauling, removing and exporting of logs have to be done first. Having done so, then calculation has to be done to ascertain the cost incurred.

7. A Court of competent jurisdiction will definitely refuse to grant a blank order expecting a logger will make calculation later. That definitely is improper. If calculations are improperly done or done scrupulously, the order cannot be amended to suit the circumstances. I am mindful of such approach and cannot tip an order in advance knowing that it is a risk to do so.

8. Mr Lidimani refers to the latest case of Kalena Timber Co. Ltd V Bolopoe[3] and distinguish that the Court reject deduction on very good ground, that is unlawful operation. In this case, the fifth Defendant operated under a valid licence and there was no trespass.

9. I have personally dealt with the application for injunctive orders refer to and granted them on 11th April 2014. It has to be noted that process which involved second Defendant to fifth Defendant in acquiring rights, which led to grant of logging licence, was an absolute fluke. Authorities totally ignored the decision of Isabel Customary land Appeal Court which finally awarded landownership to the Claimant and Dorah Kikolo as primary owners on behalf of their clan. Despite the CLAC decision the Claimant was misplaced and out of recognition. This case in my respectable view is as good as trespass case. I therefore refuse to grant orders allowing the fifth Defendant to deduct its operational expenses out of proceeds of all logs felled.

Orders:

1. Order 1 varied, the first Defendant is permitted to haul and sell or otherwise export logs already felled within sareai land.

2. Order 2 varied that all machineries and employees of fifth Defendant be maintained upon and within sareai land for purposes of completing hauling and exporting of logs already felled within the said land.

3. Orders 3: refused to grant variation.

4. Orders 4: allowed.

5. Cost be paid to the Claimant.

The Court.

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^[1] [2011] SBHC 110
^[2] [1996] SBHC 6
^[3] [2008]SBCA 12.