Kerena Heights Ltd v West Wainoni Tropical Timber Resources Ltd [2020] SBHC 89; HCSI-CC 157 of 2020 (7 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kerena Heights Ltd v West Wainoni Tropical Timber Resources Ltd
Citation:
Date of decision:	7 August 2020
Parties:	Kerena Heights limited v West Wainoni Tropical Timber Resources Limited, King Solomon Company, Attorney General
Date of hearing:	26 June 2020
Court file number(s):	157 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:
Representation:	Mr. L. Puhimana for the Applicants/First and Second Defendants Mr. G. Muaki for the Respondent/Claimant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Pentani v Attorney General [2014] SBHC 130 CTP International (SI) Co. Ltd v Ghiro [2014] SBHC 66

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number: 157 of 2020

BETWEEN

KERENA HEIGHTS LIMITED
Claimant

AND:

WEST WAINONI TROPICAL TIMBER LIMITED
First Defendant

KING SOLOMON COMPANY
Second Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Third Defendant

Date of Hearing: 26 June 2020
Date of Ruling: 7 August 2020

Mr. L. Puhimana for the First and Second Defendant
Mr. G. Muaki for the Respondent/Claimant

RULING ON APPLICATION TO DISMISS CLAIM AND TO SET ASIDE EX-PARTE INTERIM INJUNCTION

1. On the materials disclosed at ex-parte, I granted interim ex-parte injunction order to stop 1^st and 2^nd defendants from carrying out logging operations on a land called Henisu. I granted those orders, on the mistaken belief that claimant’s Timber Rights Acquisition Process (“TRAP”) had been duly completed. And a Form 4 Agreement executed with the determined trustees in respect of Henisu concession land (Henisu). And claimant was only awaiting issuance of felling license from 3^rd defendant. Interim ex-parte injunction order was perfected on 14/04/2020.
2. I say mistaken belief, because at inter-partes hearing and on application to dismiss/strike the claim, new facts emerged to show that Henisu was objected at claimant’s TRAP hearing. The objection reached Eastern Customary Lands Appeal Court (“ECLAC”), whereby that Court had set aside claimant’s TRAP determination over Henisu – meaning, claimant’s TRAP over Henisu did not go through. So Henisu was a free land as of 30/05/2019 – date of ECLAC decision, setting aside Henisu from claimant’s TRAP. This new fact was not made disclosed to this Court at ex-parte hearing. Yet it was a relevant fact, because the reliefs sought and orders granted stopped 1^st and 2^nd defendants from operating on Henisu. Claimant did not disclose to the Court this relevant fact.
3. Claimant has failed to make full disclosure, a duty it has at ex-parte application^[1]. Counsel Muaki in answer to Court’s question says he was not instructed on this particular omitted fact. The punishment for non-full disclosure is to dismantle any benefit derived connected to the injunction orders obtained ex-parte under non-full disclosure^[2].
4. Next is applicants’ submission that claimant lacks standing to claim for Timber Rights in respect of Henisu. Hence the claim should be struck out. Claimant has no timber concession rights over Henisu, following the ECLAC decision setting aside claimant's TRAP on 30/05/2019. So what standing will entitle the claimant to claim in respect of Henisu? As for Timber Rights, there is none. As for customary land ownership there is nothing. Claimant being a company cannot be said to own customary lands. Claimant submitted that Henisu land is called Wanakaka land, under 1^st defendant’s felling license. Even so, Henisu was not covered in any other license, not even under claimant’s license. Claimant currently has no license. And Henisu’s acquisition under claimant’s TRAP was ousted on appeal to ECLAC. Claimant has no known right to claim for Henisu. Henisu or Wanakaka is under 1^st defendant’s felling license A101821 issued on 01/10/2019. There was no prior license issued to claimant over Henisu. Even the Forestry letter dated 31/07/2019, advising that a Form 4 agreement may be executed with trustees of Henisu is illegal because ECLAC, by decision dated 30/05/2019, had quashed claimant’s TRAP over Henisu. There is no appeal to this Court, against ECLAC quashing verdict.
5. Claimant may say that it had executed a Form 4 Agreement with the trustees of Henisu. But that assertion may not carry lawful weight, because Henisu land was excluded from claimant’s TRAP, by ECLAC. Henisu has not gone through a duly completed and valid TRAP by claimant. Hence there are no determined trustees, to sign a Form 4 Agreement. Claimant may even say it had entered into a Form 4 Agreement with those who owned Henisu (by virtue of a chief's decision dated 30/06/2017). But that assertion may not carry lawful weight, because one cannot execute a Form 4 Agreement direct with customary owners, without a duly completed TRAP.
6. What is clear now is claimant has no concession rights under its TRAP to claim for Henisu. Claimant, a company cannot claim for Henisu, except through TRAP concession rights. The landowners of Henisu may sue for trespass to Henisu, if 1^st and 2^nd defendants’ operations have trespassed into Henisu. For now, claimant has no standing to sue for Henisu. Its claim is therefore dismissed for lack of standing. Claimant is not entitled to bring a claim over Henisu and the claim must be strike out. Ex-parte orders are dismantled forthwith. Cost follow the event. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Pentani v Attorney General, HCSI-CC 433 of 2013.
^[2] CTP International (SI) Co. Ltd v Ghiro [2014] SBHC 66; HCSI-CC 33 of 2014 (10^th June 2014).