Attorney General v Viuru Forest Enterprises [2015] SBHC 27; HCSI-CC 79 of 2015 (10 April 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 79 of 2015

BETWEEN:

ATTORNEY-GENERAL
Applicant

AND:

VIURU FOREST ENTERPRISES
1st Respondent

AND:

POLY LOGGING (SI) LIMITED
2nd Defendant

Date of Ruling: 10th April 2015

Mr Muria J & S Hanu for the Applicant
Mrs Tongarutu N for Respondents

RULING ON APPLICATION TO STAY AN ORDER MADE BY
MAGISTRATE COURT

Maina J:

Introduction

This is an application by the Attorney General in pursuant under rules 17.77 and 17.78 of the Civil Procedure Rule 2007 seeking an order to stay the order made by the Magistrates Court on 11th March 2015. The applicant filed an appeal and is pending in the High Court.

In the notice of appeal filed in the High Court on 16th March 2015 the applicant alleges the Magistrate erred in law to grant the mandatory and quashing orders.

I heard the application and gave ex tempore judgment at the end of the hearing. I grant the order to stay the order made by Magistrate Esther Lelapitu on 11th March 2015 and perfected on 12th March 2015 pending an appeal in the High Court of Solomon Islands. I informed the parties that I would deliver the reasons for the ruling later and do so now.

Brief Background

The Commissioner of Forest has invoked his powers under Section 33 of Forest Resources and Timber Utilization Act (FTRU Act).

He has issued a seizure notice to the Respondents by his letter of 23rd January 2015 to seize the logs, machineries and equipment used by the respondents. The logs in the bush and Sandly log pond on Kolombangara Islands Western Province.

On 13th February 2015 the Respondents filed a notice of appeal against the decision of the Commissioner of Forest to seize the logs, machineries and equipment used by the Respondents. On 27th February 2015 a fee of $400.00 GTR No. 1734748 was paid at the Central Magistrate Court.

On 10th March 2015 the Respondent filed an application to Magistrate under 36 of the FTRU Act among others for the sale of the property. The Respondent was seeking an order to direct the second Respondent (Poly Logging (SI) Ltd) to export the volume of round logs comprising 1,900 cubic metres and harvested from the area of dispute and the subject matter of the seizure under Section 33 of the FTRU Act. The main ground of the application is that the hearing of the substantive Appeal under Section 37 of the FTRU Act is likely to drag on for a time.

On the 11th March 2015 Magistrate Esther Lelapitu at the Central Magistrate Court heard the Respondent's application for the sale of the property and she granted the orders to the second Respondent to export the logs. Among others the Magistrate directed the Commissioner of Forest his servants and agents to issue a Market Price Certificate recommending the export the volume of round logs comprising 1,900 cubic metres by the second Respondents.

A notice of appeal against the orders by the Magistrate Court was filed in the High Court on 16th March 2015 along with this application to stay the orders of the Magistrate Court and Certificate of Urgency.

The application was listed and came before me on 24th March 2015 at 1.30 pm but counsel Tongarutu Collin who appeared for his wife counsel Tongarutu N who acts for the Respondents applied for adjournment as his wife was in Munda, Western Province.

The Court granted the adjournment and listed it for hearing on the next day 26th March 2015 at 10.00am. On the day counsel Tongarutu N appeared for her clients.

Issue

The issue is whether the circumstance is appropriate or justifies the grant of the orders to stay the orders granted by the Magistrate.

Applicant Case

Counsel Muria J argued that the fact an appeal is pending in the High Court is just and reasonable that the Court grant the order to stay. The appeal grounds relate to points of law and in particular on the jurisdictional issues in particular whether the Magistrate possesses the necessary powers under the Magistrate Court Act to grant quashing and mandatory orders or otherwise vest in the High Court. The direction for Commissioner of Forest his authorised representatives to endorse the price certificate under the application of Poly Logging (SI) Ltd is contrary to Section 18 (I) (a) of the Crown Proceeding Act (Cap 8).

Respondent Case

Counsel Tongarutu N said the main ground of the application to the Magistrate under Section 37 of the FTRU Act is that the hearing of the substantive Appeal in the Magistrate Court is likely to drag on for some time and the logs at the bush and Sandfy Log Pond would get to rot.

The Court

The law is settled in this jurisdiction with application to stay judgments or orders. It is stated and summarised by Apaniai J (as he was then) in the case of Lema General Store v Chungsol Ltd [2013] SBHC 134; HCSI-CC 134 of 2012 when he viewed and cited the judgments of Kanna v National Fisheries Development Ltd [2001] and HCSI-CC 55 of 1999. In order to grant a stay a consideration is just and reasonable and to what is just and reasonable depends on the circumstances of each case.

In this case, the application is to stay the orders of the Magistrate Court pending the appeal to the High Court. The rule is quite clear in Rule 17.77 and 77.78 of the Civil Procedure Rules that the Court may grant the application for the duration of any appeal period (including any period relating to leave to appeal) and, if any appeal is filed (including an application for leave to appeal), until the final determination of the appeal.

The circumstance of this case is that an appeal on the order of Magistrate is pending in the High Court. It relates to law and in particular on the jurisdictional issues under the Magistrate Court Act and the Crown Proceeding Act with the grant of quashing and mandatory orders by the Magistrate Court.

They raise serious issues that need to be determined by the appropriate Court. I am aware of the concerned by the Respondent on the likely drag of hearing of the matter before the Central Magistrate Court but the method opted and granting those orders raises serious questions in law.

On the reasons that an appeal is pending before the High Court with serious jurisdictional and triable issues and to maintain the status quo it is just and reasonable to grant the order to stay the order of Magistrate Lelapitu.

ORDERS

1. The orders dated 12th March 2015 in Central Magistrate Court Civil Case No. 42 of 2015 granted by Magistrate Lelapitu be stayed pending an appeal in the High Court of Solomon Islands.
   
2. Cost in the cause.
   

The Court

.................................................................
Justice Leonard R Maina
Puisne Judge