Kingsley v Mas Solo Enterprise Ltd [2016] SBHC 163; HCSI-CC 174 of 2016 (5 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 174 of 2016

BETWEEN: JOHN KINGSLEY - Claimant
(Representing himself and the Taugaba
Nakmirufunei Tribe)

AND: MAS SOLO ENTERPRISE LIMITED - First Defendant

AND: ELLIOT HAVILEGU - Second Defendant
(Representing himself and the Posamogho Moni clan,
Isabel Province)

AND: ATTORNEY-GENERAL - Third Defendant
(Representing the Commissioner of Forest)

Date of Hearing: 16^th September 2016
Date of Ruling: 5^th October 2016.

Ms. A. Willy for the Claimant.
Mr. P. Tegavota for the First Defendant.
Mr. R. Kingmele for the Second Defendant.
No appearance for the Third Defendant.

KENIAPISIA; PJ:

RULING ON APPLICATION TO VARY

Introduction

1. Court granted interim restraining orders against the first and second defendants on 30/6/2016. The restraining orders prohibits the first and second defendants (“defendants”) from conducting all forms of logging activities, on the land described as “the extended part of land as from Mablosi stream to Koiremu”, as per the Maringe High Lands Chiefs decision dated 5/11/1996 (MHL 1996) (Order 20.1^[1]).
   
2. The other restraining orders of the Court are:
   • 2.1 Defendants may confine their logging activities on the land described as from Engha to Mablosi, in the MHL 1996 (Order 20.2).
   • 2.2 Chiefs, Forestry Division and parties to carry out a joint ground survey to determine, if the portion of land mentioned in Order 20.1 is located inside the concession lands covered under felling license A101174 (Order 20.3).
   • 2.3 Defendants shall not intimidate/harass the claimants’ tribe and its people inside the portion described in Order 20.1 (Order 20.4).
   • 2.4 Defendants to account to the claimant in respect of logs exported from Block B, Gonogano land and to pay proceeds into a joint trust account in the names of the solicitors (Order 20.5).
   • 2.5 Parties meet their own costs (Order 20.6).
     

Application to vary

3. By application filed 22/07/2016, the first defendant seek variation of the restraining orders, pursuant to Rule 17.54 and 17.55. Second defendant supported the application to vary. Defendants sought to vary orders 20.2 and 20.5; of the restraining orders. The effect of the variation will be to allow the defendants operate logging on Block B, but must not go into claimant’s portion as described in the MHL 1996.
   

Justification for Variation of Restraining Orders

4. Defendants submitted that the application to vary is in order because variation will reflect the evidence and findings of the Court. Findings of the Court is taken to mean the restraining orders ruling, which relied heavily on the MHL 1996.
   
5. At the material time, Court made the restraining orders in June 2016, the intention was to protect claimant’s tribal land described in the MHL 1996 in Order 20.1, from the defendants logging activities. The tribal land is described as “...the extended part of land as from Mablosi to Kololako upstream to Koiremu...” At that time, the Court was not sure, if “that land” was inside the concession lands sanctioned under Felling Licence A101174. Additionally, the Court was not sure if the defendants had operated logging on “that land”.
   
6. Those doubts were clarified with the filing of new materials before the Court. On the balance of probability, Court is satisfied “that land” is inside the said concession area, but that no logging activities had taken place on “that land.”
   
7. The defendants produced new materials based on a ground survey made by the Forestry Division and Landowners, including the second defendant. Claimant complains that the survey was not made consistent with the orders of the Court, because not all parties named in the order, witnessed the survey. Even the chiefs were not part of the survey. Claimant was correct on this point. However, claimant did not produce evidence to rebut the survey report. Claimant did not produce evidence saying that the defendants have operated on “that land” described in the MHL 1996. That land is sufficiently and clearly described in the MHL 1996. If logging has entered that boundary, claimant should be able to say so. Court is entitled to rely on the Forestry report. That report has not been challenged because claimant failed to subpoena the Forestry officers to cross-examine them on the contents of the report. The nub of the report is that no logging is taking place on “that land.”
   
8. Court is therefore satisfied, until there is further evidence, that claimant’s land as per the MHL 1996 is not affected by the defendants logging activities; either by orders under this case or orders in the other case referred to by the defendants as Civil Case 399/2016^[2] (Leo proceedings). Court has no access to that file. The application for variation is in order because, it reflects the Court’s intention at the June 2016, restraining orders. The said restraining orders intended to prohibit the defendants not to operate logging on “that land,” if “that land” is within the defendants concession lands. Court is satisfied that “that land” is within the concession lands, but the defendants have not operated logging on it.
   

Other submissions

9. Submissions by Counsel Kingmele for dismissal of this proceedings and submissions by Counsel Willy for blanket injunction over the whole of Block B will be entertained only on a proper application filed to that effect. Parties may also consider consolidation of this proceeding with civil case 399/2016. Counsel Willy also submitted that interim injunction should be granted over Block B, because her client’s appeal is pending in the Local Court. Court ignored this submission because Court is using the evidence on ownership as per the MHL 1996 not the Central Hograno House of Chiefs Decision dated 15/12/2015, which is pending appeal by claimant, in the Local Court. Court reiterate that it was a communal meeting minutes. But if Local Court has to deal with it, its decision must apparently connect to the lands dealt with under MHL 1996.
   
10. Reference to Block A and Block B is unsafe to go by. I can only go by the MHL 1996 to say that the lands given to claimant’s tribe as per that decision must not be operated on, however “that land” is described in the concession lands under felling license A. 101174. Applicants satisfied the Court that “that land” is not operated on by defendants (repeat and reaffirm paragraphs 5, 6, 7 and 8). Claimant’s sworn statement evidence did not say that defendants operation is taking place on “that land” so described as his, in the MHL 1996. Claimant only say logging is in his customary land. But which land is that in relation to the claimant’s MHL 1996 portion?
    
11. Application succeeds and accordingly, the 30/06/2016, restraining orders are varied as sought by the defendants.
    

11.1 The defendants may confine their logging activities on the land described as from Kololako River to Mahefuotho River in the MHL 1996.

11.2 The defendants to account to the claimant in respect of volume of logs exported from land described as from Mablosi River to Kololako River and upwards to Koiremu situated within Gonogano land (if any) and to pay the proceeds into a Joint Trust Account in the names of the Solicitors.

11.3 Parties meet their own costs.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Order in bracket refers to the interim restraining order granted by the Court on 6^th June 2016.

^[2] Counsel Willy says cc 399 of 2015, whilst Counsel Kingmele says cc 399/2016. Court is not sure which is the correct case number.