Robinson v Lupa Development Company [2015] SBHC 92; HSCI-CC 429 of 2015 (27 October 2015)

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

Civil Case No. 429 of 2015

BETWEEN:

JAY TIMI ROBINSON (Representing the Lupa Tribe)
Claimant/Respondent

AND:

LUPA DEVELOPMENT COMPANY
1st Applicant/Defendant

AND:

PACIFIC EVEREST LUMBER COMPANY
2nd Applicant/Defendant

AND:

KONGUNGALOSO DEVELOPMENT COMPANY
3rd Defendant

AND:

ATTORNEY GENERAL (Representing Minister of Forest)
4th Defendant

Date of Hearing: 27th October 2015
Date of Ruling: 27th October 2015

Global Lawyers: No appearance for the Claimants
Mr. Marahare D: 1st/2nd Applicant/Defendants
No appearance for 3rd/4th Defendants

(EX-TEMPORE) DECISION ON APPLICATION
FOR ORDERS TO DISMISS CLAIM

Maina J:

The Applicant/Defendants applies for orders to dismiss the claim under Rule 9.75, alternatively under Rule 17.55 (a) and (c) of the Civil Procedure Rules of 2007.

They alleged that the claim by the Claimants be dismissed on the reasons that this case is frivolous or vexatious; no reasonable cause of action is disclosed: and the proceedings are an abuse of the process of the Court. Alternatively the ex parte order/interim injunction obtained against the Defendant on 14th September 2015 to be set aside for absence of a Defendant when the order was made and the order is for an injunction.

The application comes to Court by way or with Certificate of Urgency as logs are and ready for export and this application may assist to preserve the commercial value of logs. It also seeks an abridgement of time to effect service of this application upon the Claimant under Rule 26.6 of the Civil Procedure Rules. And I granted the abridgement of time.

Briefly the Claimant/Respondent on 14th September 2015 obtained an ex parte orders/interim injunction on the reasons that the Applicant/Defendants had entered and fell logs on Lupa Land without a valid Felling License issued under the Forest Resources and Timber Utilisation Act (Cap 33).

Further the Claimant with the claim (Category A) with unsigned by the Counsel and filed on 29th September 2015 alleges and seeks a declaratory order of trespass and damage into Lupa Customary Land and illegally operates logging activities.

Upon receiving the claim the First and Second Defendants have find a Conditional Response and stated that the First and Second Defendants in the next 14 days proceed to file an application to dismiss the claim in pursuance to Rule 9.75 of the Civil Procedure Rules of 2007.

The papers filed with the Court disclose the Claimant is from the Lupa tribe and the directors of the First Defendant who granted rights to the second Defendant are also from Lupa tribe. Both parties have interest in this matter and no issue of the ownership and if there is, this Court lacks the jurisdiction.

The issue is whether First Defendant holds a valid log felling license for Lupa customary land.

In the ex parte application on 14th September 2015 the Claimant alleges that the First Defendant and Second Defendant is operating the illegal logging activities as it has no valid felling licence and upon the interim junction order was granted to him.

And further the Claimant with the claim filed on 29th September 2015 said the Defendants are operating logging activities without a valid felling license or the felling license no. TIM 2/86 has already expired on 11th January 2012.

With logging, the law requires under the Forest Resources and Timber Utilisation Act that for the purpose of felling trees for export a company or person must have a valid felling license issued by the Commissioner of Forest.

With the First Defendant, Mr. Marahare submits that the First Defendant has a valid felling licence for Lupa Land – Felling Licence No. Tim 2/86 issued by the Commissioner of Forest on 6th May 2015 for a term of 2 years to 6th May 2017. He relied on the sworn statement of a director of the First Defendant Mr. Tim Brick Steven filed on 16th October 2015 and the annexure TBS 1, a copy of Felling Licence No. Tim 2/86 is valid and issued on 6th May 2015 for a term of 2 years.

It is clear that when the ex parte order of the 14th September was granted to the Claimant the First Defendant had a valid felling licence. It appears that the Judge was misled or not provided with the full information on the actual situation or matters relating to Lupa land.

The fact that there is a valid felling licence is in place for Lupa land cannot make the ex parte order of 14th September 2015 to stand any more chance or ought to be removed. Therefore the ex parte order of 14th September 2015 is accordingly discharged forthwith.

Now the ex parte order is discharged and the claim is also base on the issue of licence, the next question for me to consider now is whether the claim as it stands discloses a reasonable cause of action.

It is clear the directors of the First Defendant are land owners of Lupa land and First Defendant had previously held felling licence on Lupa land and Claimant is also from Lupa tribe. However there is no information before the Court that at least to indicate or holds the Claimant a superior status on the issue of land and or any matter concerning the Lupa land.

Claimant made reference to a case but from the sworn statement of Mr. Tim Brick Steven filed on 16th October 2015 the case which the Claimant want to use had been withdrawn from the Court.

From what is now before the Court and upon the discharged of the interim order and the fact the First Defendant holds a valid felling licence for Lupa customary land the Claimant's claim holds grounds to succeed in the matter.

In my view this is clearly a case which ought to be struck out for the proceeding is frivolous or vexatious; no reasonable cause of action is disclosed: and the proceeding is an abuse of the process of the Court. And I therefore dismiss the entire claim.

On the costs, the Claimant bears the First and Second Defendant cost on indemnity basis.

The Court

Justice Leonard R Maina
Puisne Judge