Metro Team Ltd v Koloko (SI) Enterprise Ltd [2016] SBHC 205; HCSI-CC 28 of 2016 (16 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

CIVIL CASE NO. 28 OF 2016

BETWEEN: METRO TEAM LIMITED Claimant

AND: KOLOKO (SI) ENTERPRISE LIMITED First Defendant

AND: RENOWN SURF & CARGO COMPMANY Second Defendant
LIMITED

Hearing Date: 8^th September 2016
Date of Ruling: 16^th December 2016

Mr R. Tovosia for the Claimant
Mr J. Taupongi for the First and Second Defendants

RULING ON APPLICATION TO SET ASIDE INTERIM ORDERS

Faukona, PJ: A regime of interim injunctive orders was granted by this Court on 11^th February 2016. Those orders were prayed for by way of an ex-parte application considering particular circumstances surrounding this case at that time.

2.	An application pursuant to Rule 17.55 (a) and (c) was filed on 29th February 2016 supported by a sworn statement deposed by Mr Crawford filed on the same date.
3.	Where an interlocutory order was granted without the present of the other party, it is practicable after a defence had been filed and supported sworn statement an inter parte hearing must be convened to consider whether the interim orders ought to continue or ceased because of the changing circumstances.
	Outline of background facts:
4.	The dispute concerns three concession areas within Kohingo Island, Vona Vona Lagoon, Western Province. They are (1) Central Kohingo, (2) gasapatu and lato customary lands, (3) West Kohigo.
5.	On 28th February 2013 a felling licence No. A101043 was issued to the Claimants for Central Kohingo. That licence will expire on 28th February 2018.
6.	On 16th September 2015, a felling licence No. A10440 was issued to first Defendant over West Kohingo. That licence will expire on 16th September 2018.
7.	On 22nd May 2015, the first Defendant entered into a technology and marketing agreement with the second Defendant who is the contractor. The second Defendant then commenced logging in West Kohingo.
8.	On 9th November 2015, Nivah Integrated Development Company (NIDECO) entered into a technology and marketing agreement with the second Defendant concerning gasapatu and lato customary lands.
9.	Apparently the second Defendant had been in operation in West Kohingo since June 2015, and in gasapatu and lato since November 2015.
10.	The gist of the Claimant case is the issue of trespass. Trespass in this case could be well defined as trespass into a concessionary area under a felling licence issued by the Commissioner of Forest.
11.	The Claimant, since August 2015 had temporarily ceased logging activities, contemplating recommencement of operation later in the year. The Claimant alleges, that notwithstanding temporary closure, its licence remain current and valid.
12.	The Claimant avers that the temporary stoppage did not give the first and second Defendants right to enter into Central Kohingo and vasavasara customary lands and remove marketable trees.
13.	The claim for trespass into concession area achieved its support from the act of intruding onto those lands and felling commercial and marketable trees at the end of 2015.
14.	In supporting its claim, the Claimant relies on the sworn statement of Mr Efren Lagua filed on 30 February 2016. The sworn statement contains exh. 9 a purported joint minute report compiled by Munda based Forest Officers.
15.	The essence of the report, in my view, is not viably accepted due to its bias representation. It is not within the ambit of field joint investigations. The problem it encountered is that no single landowner representing Central Kohingo and vasavasara landowning groups accompanied the team. They may be grantors who were identified as entitled to grant timber rights, and who may have expected to assist the joint survey team in identifying their lands and boundaries.
16.	On the other hand, there is evidence that the landowners, by their letters of 28th June 2015, from Siope alenge tribe, and a letter of 16th December 2015 from Ago and Simaema clan had withdrawn their support for the Claimant to operate in their lands and eventually abandoned the Claimant. Conclusion can be drawn that the reason for temporary closure of the Claimants operation was because the landowners had withdrawn their support.
17.	Whilst conceding that its operation is temporarily ceased, the Claimant or its Solicitor had never informed the Court of when the Claimant had been re-instated its logging operation. It would be speculative to think that the Claimant was still temporary inoperative at the time of application and grant of injunctive orders. As it seems, it could not be in the interest of the Claimant’s case if the orders were granted whilst its operations were still ceased. Of course that will surely dilute its standing to come to Court.
18.	From evidence, it could appear the issue circles around whether West Kohingo, Central Kohingo and gasapatu and lato lands have common boundaries? This question is of significant to ascertain whether the Defendants had encroached into Central Kohingo and felled commercial trees.
19.	There is no decision of any land court exhibited to assist the Court either. However, I noted there could have been a possible overlapping of concession areas. Without the assistant of the landowners (none is included in the survey party) and any decision from the land Courts, this Court is handicapped to decide whether the injunctive orders to continue or not.
20.	As to the question of non-disclosure, I think it has limited effect to this case, but a contributory agent. Especially in the area of existing injunction order against the Claimant which covers different lands. And the question of possible over lapping is a major one this Court ought to determine, which can only be done by a report from an independent and well represented joint survey team. Meantime, to rely on the previous one is inconsiderable.
21.	With the Changing circumstances, in particular lack of support from landowners, the Claimant’s case has a dwindle footing. I agree with paragraph 19 (c) of Mr Taupongi’s written submissions, which intended to reinforce the recommendation by the report that the alleged encroachment should be dealt with by the Commissioner of Forest, who knows well the boundaries of each of the concession areas.
22.	With that, I would consider that is the best possible option, to refer the case to the Commissioner of Forest to deal with the boundaries of the concession areas and whether there are overlapping of the concessions and whether there are trespasses.
	Orders:
	1.	Order that parties refer this case to Commissioner of Forest to sort out the allegation of encroachment into other concession areas.
	2.	Ex parte orders granted on 12th February 2016 be discharged.
	3.	Cost of this hearing is payable to the Defendants by the Claimant.
	The Court.