Simao v Avicks [2016] SBHC 18; HCSI-CC 642 of 2015 (19 February 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 642 of 2015

BETWEEN:

LESLIE SIMAO
(Representing himself as the only surviving
Trustee of LR 671 Rereona Land and on behalf
of Kokopi Tribe of Kia, Isabel Province)
Claimant

AND:

MANASEH AVICKS, SELWYN DIKA, JAMES
SAUKAE AND HUDLEY SOGHA
(Representing themselves as he purported
Trustees of LR671 Rereona Land, Isabel Province
First Defendant

AND:

ISABEL TIMBER COMPANY
Second Defendant

AND:

TRI-JAM ENTERPRISE LIMITED
Third Defendant

AND:

THE SHIP "MV ORIENTAL HERO"
Fourth Defendant

AND:

ATTORNEY-GENERAL
(Representing the Commissioner of Forests)
Fifth Defendant

Mr. J. Zama for the Claimant
Mr.M. Tagini for the 2nd and 3rd Defendant

Date of Hearing: 26th January 2016
Date of Ruling: 19th February 2016

RULING ON APPLICATION FOR VARIATION OF ORDERS

Faukona PJ: A claim in category C was filed on 24th December 2015. On the basis of the claim, an ex-parte application for interim restraining orders was filed on 23rd December 2015, and orders to that effect were perfected on 29th December 2015.

2. The restraining orders were in respect of LR 671, a customary land situated in Isabel Province. The regime of orders includes restraining of all proceeds from logs extracted from LR 671 and exported on MV Oriental Hero.

3. This application is for variation of Order 6 of the interim restraining orders of 29th December 2015. The reasons for variation advanced are that there were 2,502.987 cubic meters of round logs extracted from other lands as LR 670 and from San Jorge island. All proceeds related to LR 671 is agreed to be continued to be restraint, but not proceeds from 1,162.886 cubic meters of logs extracted from LR 670 and 1367.015 cubic meters extracted from San Jorge island. Those should be released. The reason is clear, that they are different lands.

4. The Counsel advocate for the Claimant has raised a number of objections. The first objection is entrenched in Rule 3.6, "that a person affected by a proceeding may apply to Court for an order that he may be made a party to the proceeding". The owners of the logs at San Jorge are not a party to this proceeding.

5. Secondly that the export permit was granted under Licence No. Tim 2/32. There was no mention of San Jorge logs were loaded on the boat.

6. Thirdly, that the logs from San Jorge were felled under exemption permit, under legal notice 43, hence those logs were exported under that permit LN43.

7. The application is clear as crystal, that proceeds from logs extracted from LR 670 and San Jorge that were exported on the same shipment be released from the bounds of order 6. Only the proceeds from logs extracted from disputed land (LR671) are restraint.

8. From the Claim filed on 24th December 2015 and the sworn statement in support filed on 23rd December 2015, the Claimant had expressly stated without peculiarity that he is only interested in LR 671, rereone land because he is the last sole survivor of the trustees who were the original signatories to SLA dated 2nd August 1991. Specific confinement of interest has reflected in the orders sought which confine to LR 671 only. It would be unruly for the Claimant or his Counsel to step beyond the bound of his case, and indulge in interfering with the affairs and interest of others.

9. On 29th October 1991, a felling Licence Tim 2/32 was issued to the second Defendant, by the Commissioner of Forests to cut, fell and take away timber from Hograno, Havilei/Kokota and Kia/Katova concessions. The licence is valid until 2021.

10. There can be no doubt that LR 671 is situated within Kia/Katova District, Isabel Province. The same can be said as to LR 670, as a sister Lot of LR 671. No doubt both customary lands fall under the licence Tim 2/32. Any difference to be noted has to do with the execution of the standard logging agreement with the rightful landowners.

11. In the current case, the tone of submissions by the Counsel for the Claimant seemed to focus on logs extracted from San Jorge. There was nothing to do with logs extracted from Lot 670. This is in different from the application for variation to restraining proceeds in respect of LR 671, hence it is a non-issue.

12. Since there are no submissions to the contrary, as far as LR 670 is concerned, hence ignited no further agitation and the matter be put to rest as a non-issue, and which attracted no commentary and adjudication from this Court.

13. It is necessary to divert focus on logs from San Jorge as a contentious issue. There is no doubt; extraction of logs from San Jorge was made possible by virtue of Exemption Order under Legal Notice 43 dated 26th May 2015. Three months after, the current Prime Minister revoked the order by Legal Notice No. 75 on 28 the August 2015.

14. Despite the revocation order there must have been logging activities carried on by Evergrow Logging Company first on gothata and tagirigi customary lands on San Jorge. There is no explanation as to any association or relationship between Evergrow Logging Company and the first, second, third and fourth Defendants. In the absence of such, it would be quite difficult to ascertain who actually was felling trees and exporting logs from San Jorge island. Whether it was the third Defendant as verified by Mr Tavake in his sworn statement filed on 20th January 2016, or Evergrow Logging Company which was subjected to seizure notice dated 15th September 2015.

15. In any event both Companies are contactors as they appear. Whoever was contracted to undertake felling, clearance, and of course export of the logs had a binding relationship with those whom the special permit was issued to. That is the Company which directly had interest to the proceeds. I noted exhibit "PJ3" attached to sworn statement of Mr Parsad, is an acknowledgement receipt of the first shipment made by the third Defendant on 21st November 2015 concerning logs from San Jorge.

16. There is no evidence that there were two contractors operating under the special permit, LN 43. There is no evidence verifying that one contractor actually did felling and the other exporting. In fact this Court has never been informed of the actual contractor engaged under the special permit. It could be the third Defendant, or Evergrow Logging Company, which a notice of seizure was addressed to the special permit, has interest to the proceedings.

17. With the state of ambiguity present, it is prudent in my view, to refuse granting any order varying order 6. The proceeds related to San Jorge be continue to be restraint.

18. In regards to the volume of logs exported on 20th December 2015, there is material to show by way of a Commercial Invoice Exh "PJ1" attached to sworn statement of Pasard, that 1,162.886 cubic meters were loaded at Bagatu port. The logs were from King Star Camp. There is an indication that the logs from LR 670 were included. There are two other commercial invoices for logs loaded from Kikinu camp and San Jorge. All logs were loaded at Bagatu port. The question to pose is why there were three commercial invoices. The rationale which I can able to deduce is because the logs were extracted from different customary land sources. So there is need for different invoices.

19. I noted in Exh. "NK" attached to Kokonav's sworn statement, a hand written report as to the volume of logs shipped from LR 670. The volume as claimed is 1296.81cubic meters and not 1,62.886 cubic meters as shown in the invoice. The consideration is simple, I only accept proper and formal invoice. The hand written document Mr Kokonav relies on as proof of the truth is unacceptable. Any hand written document can be manipulated and crafted to suit one's agenda. I offer no option to accept but rather reject as unworthy evidence.

20. The three commercial invoices attached as material evidence, provide sufficient evidence to indicate that there were logs extracted from different licences, but were shipped via one port and the volume each land resource produce. There can be no mistake even if they are covered under one letter of credit.

21. The specifications in the commercial invoices had provided significant information in identifying log volumes exported from which source, and one cannot be led astray.

22. From my analysis, a proper and prudent adjudication is to allow the application in part. Order 6 of 29th December is hereby varied in these terms.
Orders:

1. All proceeds from 2,562.987 cubic meters of round logs extracted from LR 671, continue to be restraint and paid into joint Trust Account in the names of Counsels pending further orders.

2. All proceed from 1,364.015 cubic meters of round logs extracted from San Jorge be restraint and paid into joint Trust Account in the names of the Counsels pending further orders.

3. All proceeds from 1,162.886 cubic meters of round logs extracted from LR 670 be released and paid to the Defendants (1), (2), (3) and (4).

4. Cost in the cause.

The Court.