MAFU Land Puchase Co-operative Society Ltd v Aubongi [2016] SBHC 74; HCSI-CC 216 of 2016 (27 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 216 of 2016

BETWEEN:

MAFU LAND PURCHASE CO-OPERATIVE SOCIETY LIMITED
First Claimant

AND:

GEORGE AUBONGI, AND SAM NINO
(Spokesperson and customary representative of
the landowners of Feleiuna, Tofulofo, Falaniu and
Ngarikoka customary lands, West Kwaio, Malaita Province)
Second Claimant

AND:

TAIDO MANAGEMENT RESOURCES DEVELOPMENT
First Defendants

AND:

ARADIWA CORPORATION LIMITED
Second Defendant

AND:

NGU BROTHERS (SI) LIMITED
Third Defendant

AND:

SOL NICE (SI) CO LTD
Fourth Defendant

AND:

COMMISSIONER OF FORESTS RESOURCES
Fifth Defendant

Date of Hearing: 27th May 2016
Mr. Firigini for the 1st & 2nd Claimants

BROWN J:

Ex Parte application for injunction affecting logging

This is an application for urgent orders stopping logging on land known as Feleiuna, Tofulofo, Falaniu and Ngarikoka, West Kwaio. The applicant has been involved in logging for 5 years. He was one of the directors of Taido Management Resources Development Ltd, a company now controlled by other persons, which held a logging licence A10928 which he says, expired on the date 2 March 2016, as appears from the copy annexed to his statement filed 17 May. At para.12, he says;

“ I have followed this up with the landowners whose lands were in the expired felling licence A10928 I have shown them lists of customary lands and names of trustees who have signed. Most of them denied granting any consent for the renewal of the logging licence. Produced herewith and marked as GA 4 is a true copy of the list.”.

There is nothing before me to show whether or not there is a current felling licence over the land or if logs had been felled before the expiration of the named licence. But these matters can await a hearing.

The important matter is that the logs were shipped out on Sunday 15 May. Mr. Firigini also says that the landowners do not know the royalty payments due them for the authorities approached refused to give detail. This argument presupposes knowledge of the logging in those affected. The Commissioner of Forests appears to have issued an authority to export logs, an act which also presupposes regularity in the process so that precise detail of the logs shipped is available. With that detail, the value will be calculated.

The fact that Taido Management Resources Development is now controlled by others than the Claimant is not proof of the allegation that a person or person did not have a licence to log with respect to the lands I have mentioned. I see that most of the trustees denied consent to a renewal of the logging licence. Of course this is hearsay, and has no evidentiary value. This may be an issue at the trial but I am only concerned with matters which go to real urgency calling for the exercise of my discretion to grant orders without the other parties having been heard.

I am not satisfied of real urgency. The timber has been felled and shipped apparently pursuant to a specific authority of the Commissioner. These parties appear to be known to one another.

The ex parte nature of an order may well give rise to even greater dissention in the community since logging has progressed, it appears through the work of others, not this Claimant. An account of the moneys due from the sale of logs would enable an assessment of damages were the claimant to succeed in his claim. This remedy is available.

Ex parte orders should be restricted to matters of extreme urgency. That is not apparent on the material or argument before me, argument which seeks to address the Claimant’s rights not the urgency issue.

The undertaking as to damages is flawed. I have been asked to change the undertaking to read “in the event that the Claimants win at the end we [the Claimants) will meet the cost incurred by them in relation to the proceedings”.

This undertaking even as originally drafted, is not an undertaking acceptable; it appear to be directed to the costs of the proceeding, not the loss to the defendant were this ex parte order to the granted and the defendants were to suffer loss as a consequence.

I refuse to exercise my discretion. The grounds do not amount to reason why true impossibility of giving notice to the other parties has been shown.

I make orders in terms set out.

ORDERS

1. The court is not satisfied the matter is so urgent that this application should be dealt with in absence of the other party. CRC 7.6(a).
   
2. I stand the application over for an inter parte hearing on a date convenient to the applicant to be fixed by the Registrar.
   
3. I make no order as to costs.
   

BY THE COURT