PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2022 >> [2022] SBHC 3

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Premier of Isabel Province v Mas Solo Investment Ltd [2022] SBHC 3; HCSI-CC 73 of 2021 (1 April 2022)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Premier of Isabel Province v Mas Solo Investment Ltd


Citation:


Date of decision:
1 April 2022


Parties:
Premier of Isabel Province v Mas Solo Investment Limited


Date of hearing:
5 October 2021


Court file number(s):
73 of 2021


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Faukona; DCJ


On appeal from:


Order:
1. The claim filed on 22nd February 2021 is hereby struck out.
2. The application for default judgment is hereby dismissed following the striking out of the claim.
3. All the restraining orders be discharged
4. The Defendant and landowners and constituency to sell the volume of tubi species now in the log pond complying with amended regulation 2018.
5. All the logging machines and equipment be returned to the Defendant forthwith.
6. The cost of this hearing shall be borne by the Claimant payable to the Defendant.
7. That $80,000.00 advanced made by Wildlife Isabel CCL from the Defendant be reimburse to the Defendant forthwith.


Representation:
Mr. Teddy for the Claimant
Mr. J Apaniai for the Defendant


Catchwords:



Words and phrases:


Legislation cited:
Isabel Province Resources Management and Environment Protection Ordinance 2005 S 34, S 5 of Part v II, S 5 (1), S 5 (2)
Santa Isabel Provincial Business License Ordinance 2013 S 20, Forest Resources and Timber Utilization Act Schedule (1), S 33,Schedule 1 (7), S 44 (1) Wildlife Protection and Management Act 1998 S 11 (1) and (2), Subsection (1), Schedule 1, 2, S 14 (2), Criminal Procedure Code S 75, S 76


Cases cited:
Tikani v Motui [2002] SBHC 10, Abe v Minister of Finance [1994] SBHC 22, Sa'oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4, Zupukana v Sogati [2016] SBHC 118, Lowa v Akipe [1991] PNGLR 265, Uluhoru v Isabel Timber Company Ltd [1991] SBHC 140, Earthmovers (Solomons) Ltd v Thao [1998] SBHC 49, Chow v Attorney General [2000] SBHC 31, Goldsmith v Sperrings Ltd [1977] 1 WLR 478, Zaku v Public Service Commission [2003] SBHC 58, Mike v Tavake [2003] SBHC 78, Ganifiri v Toito'ona [2004] SBHC 45,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 73 of 2021


BETWEEN


PREMIER OF ISABEL PROVINCE
Claimant


AND:


MAS SOLO INVESTMENT LIMITED
Defendant


Date of Hearing: 5 October 2021
Date of Ruling: 1 April 2022


Mr. Teddy for the Claimant
Mr. J Apaniai for the Defendant

RULING ON INTER-PARTE HEARING AND APPLICATION TO STRIKE OUT.

Faukona R, DCJ: A claim in Category A was filed by the Claimant on 22nd February 2021. On the same date an application for ex-parte orders was filed to restraining the Defendant from felling tubi trees/logs within lelegia concession area, Bugotu, Santa Isabell. The reliefs sought in the application were; an order retraining the Defendant, directors, agents and associates to cease or restrain from felling tubi trees within lelegia concession area, an order for Defendant, agents and associates disclose tubi extracted and or sold, an order for the Claimant through its authorized Officers to seize and take possession of all equipment related to unlawful felling of tubi trees including excavators, bulldozers, chainsaws, fuels, knives, gears pursuant to S. 34 of Isabel Province Resources Management and Environment Protection Ordinance 2005 (IPRMEPO) costs be met by the Defendant, an order for the Claimant to seize all tubi logs pending criminal investigations, an order for Provincial Business License No. A101740 issued to the Defendant on 19 June 2020 be freeze, an order for debt due pursuant to Section 20 of Santa Isabel Provincial Business License Ordinance 2013 (SIPBL) to be deferred, and an order that those logs and equipment are not to be sold until further orders of the Court.

  1. The License NO. A101740 refer to above in the application was not the license issued by Isabel Province but by the Commissioner of Forest for felling of trees within lelegia customary land concession area. Isabel Province has no right to issue felling license.
  2. On 26th February 2021, the Court granted these orders. This is an inter-parte hearing to determine whether these orders will continue in operation, or be discharged due to change of circumstances. Apart from the inter parte hearing the Defendant also filed an application to strike out the claim.
  3. The hearing of the inter-parte will include the application to strike out the claim. The parties have given consent for both be heard together. Application to strike out was filed by the Defendant on 15th March 2011, to strike out the claim or set aside the ex-parte orders, under rule 9. 75.
  4. The application for default judgment pursuant to rule 9. 17, filed by the Claimant on 29th June 2021 is also heard in consolidation.
  5. The application for interlocutory orders was premised on rules 7. 9, 7. 14, 7. 11 and 7. 12 in conjunction with rule 7.38, as the basis for which the injunctive orders were granted.
  6. As soon as the orders were served inclusive of the claim, and a defense was filed, the Court must arrange for an inter-parte hearing to determine whether those ex-parte orders will continue in operation or discharged.
  7. Since 26th February 2021, being the date of the injunctive orders and on 2nd March 2021 being the date of service of the claim, there was no defense filed by the Defendant until 4th August 2021, 6 months after service of the claim. It was after then the inter-parte hearing was anticipated.
  8. Instead of filing defense within 28 days the Counsel for the Defendant filed application to strike out on 15th of March 2021, 13 days after receiving the claim.

APPLICATION TO STRIKE OUT:

  1. By virtue of this application the Defendant sought that the claim be struck out on the grounds that it discloses no reasonable cause of action; that it is frivolous and that it is an abuse of court process.

THE LAW ON PRINCIPLES IN STRIKING OUT:

  1. The Claimant’s Counsel in defining the benchmarks alluded to in R. 9. 75 and after making reference to Tikani V Motui & Ano[1], and Abe V Minister of Finance and Attorney General[2], concluded by making reference to paragraphs 14, 15 and 19 of Zupukana V Sogati[3] and paragraphs 22, 23 and 24 of Sa’oghatoga V Mugapa Atol & Ani[4], summarily submits if it appears to the Court in relation to the proceedings in general or to a claim for relief, the bench mark in defining frivolous and vexatious is where a claim lacks all merit and was brought for ulterior purpose, that claim cannot be possibly succeed.
  2. A claim that discloses no reasonable cause of action is a claim that does not disclose a cause of action with no chance of success and whether it disclose a tenable cause of action for the reliefs sought.
  3. Abuse of court process is clear where no reasonable person could properly treat as bona fide and contend that he had a grievance, which he was entitled to bring before the Court, see Tikani V Motui[5].
  4. The approach taken by the Claimant is one of general perception which is quite familiar with the courts in this jurisdiction.
  5. On the other hand the Counsel for the Defendant is more definitive and applying the principle tests to the factual situation of this case, in particular the reliefs/remedy sought and the statement of case.
  6. The Counsel starts by pointing out that a claim has two parts. One is remedy or relief sought and the other is the statement of case. Both must be established by the claim in order for there to be a cause of action, see Lowa V Akipe[5].
  7. The statement of case sets out the facts, if proved, will justify granting of the remedies or reliefs sought. It contained alleged facts which the party relies to constitute a cause of action, see Lowa above[6].
  8. The claim must sufficiently describe the wrongful act by the Defendant and how they connect to the Defendant. The act that interferes with the Claimant’s right must be stated and that it was by the Defendant, see Uluhoru V Isabel Timber Company Ltd[7].
  9. In determining reasonable cause of action disclosed, the Court will assess the facts and decide whether a triable case has been disclosed for the remedies and reliefs sought, see Earth Mover Solomon Ltd (trading as Pacific Timber) V Samuel Thao & Others (trading as Aola Timber Exports Agency)[8].
  10. When a claim is received it ought to be identified whether remedy sought is one recognized in law. If there is no relief or the relief is not one recognized by law, then there is no cause of action.
  11. If the relief is recognized by law, the question to ask, are there facts supporting the allegation in the statement of case. Are the facts supports or give rise to relief sought if not there is no cause of action. These defects can only be cured by amendment in the case where pleadings are badly drafted and the facts are not clearly stated. In such situation there is no cause of action, see (Chow v Attorney General)[9].

LAW ON FRIVOLOUS AND VEXATIOUS:

  1. Frivolous or vexatious claim is where a claim, even if known to law is factually weak, worthless and futile; pleading can be described as frivolous. Frivolous claim is a claim which has no merit while vexatious claim is one that is made for the purpose of harassing or injuring another party by continuously bringing claim against that person which is not based on facts or do not have merit - Goldsmith V Sperrings Ltd[10].

ABUSE OF PROCESS:

  1. In the Goldsmith case above, Lord Denning define abuse of court process as thus;
  2. Sometimes abuse can be shown by very steps taken in court. Other times, it can be shown by evidence that legal process is used for improper purpose.
  3. In a particular case, the legality may appear to be entirely proper and correct, what makes it wrong is the purpose for which it is used. If it is used for exerting pressure to achieve improper end, then it is wrong to the law. If it was taken to effect and object not within the scope of the process, then the process was enforced for ulterior purpose.
  4. The Counsel has propounded a very useful exertion in defining principles in rule 9.75. Further it is relevant when considering a striking out application in this case. The Counsel’s wider outline of the law will assist the Court in its adjudication.

ANALYSIS:

  1. There will be two approaches. One is whether the Defendant had committed an offence, provided by relevant laws, under Isabel Province Resources management and Environmental Protection Ordinance 2005 (IPRMEPO), and under Santa Isabel Provincial Business License (amendment) 2013.
  2. The Second portion of analysis concern with whether the Defendant had committed an offence provided under Wildlife Protection & Management act 1998 (WPMA) or Wildlife Protection and Management Amendment Act 2017 being committed.
  3. I will start off with the second approach. On the outset the claim which was filed on 20th February 2021 contains six (6) major reliefs or remedies. The claim specifically stated the commission of offences under these Ordinances and Act by the Defendant for being unlawfully felling of Xanthostemon aka tubi trees. As a result, the Defendant is liable and should remedy the Claimant by way of orders contain in the rest of the reliefs.
  4. The criminal offending alleged derived from logging activities in lelegia customary land which was carried out from March 2019 to May 2020 14 months under felling license N0. A10170 owned by the Defendant. The logging operation was carried out within the lelegia land after the land owner’s trustees signed the Timber Rights Agreement and a Supplementary Agreement with the Defendant on 28th March 2018 and 22nd April 2018 respectively. Besides that, there was also a Memorandum of Understanding endorsed by the Defendant and the landowners on 19th August 2019, 5 months after the logging operation commenced. The MOU provided a consensus that both parties agreed to harvest and export tubi trees from lelegia customary land. There is implication of admission to export tubi logs evidenced by the MOU. That was in addition to the initial purposes.
  5. A significant basis to commence in this analysis is Schedule (1) of the Forest Resources and Timber Utilization Act (FRTUA). Apparently after the MOU, parties expected and anticipate that felling and export of tubi species would be covered by the felling license No. A101740 owned by the Defendant. Schedule (1) in fact list down protected tree species and tubi tree is not one on the list. There may be amendment provides inclusion which is not well aware of by the Counsels who provide evidence to that effect.
  6. Paragraph 18 of Standard Logging Agreement (SLA) which exclude certain species not to be felled and harvested, tubi tree is not included. Any other species designated by negotiation under s.33 of FRTUA. In fact, S. 33 is not an appropriate provision in respect of species to be felled and harvested.

Wildlife Protection and Management Act 1998:

  1. I have perused the Wildlife Protection and Management Act 1998 (WP & M Act) which the Claimant alleges the Defendant had breached certain provisions. On this issue alone the Claimant has failed to provide particular provision which was breached or which created an offence prohibiting tubi trees not to be felled. In other words, no provision or section provided criminalizing of felling of tubi trees. I found there was no section in the Act that provides felling of tubi trees as a criminal offence.
  2. The only provision that creates an offence relating to tubi is S. 11(1) and (2). However, subsection (1) prohibits export or attempt to export plants, and tubi is one of the plants as specified in schedule 1, unless someone was approved and has a valid export permit.
  3. Schedule 2 with an equivalent prescription to subsection 1, is more confine to specimen for commercial purposes. In other words, it concerns any export or attempt to export of any such specimen. In my view it comes under preparatory work pre-requisite for actual commercial purpose which export may occur later course of time.
  4. In the current case tubi logs as reveal by evidence are all stock pilled in the log pond. They are all for commercial sale and not for other purposes that I was not being aware of.

MOTIVE TO EXPORT TUBI LOGS:

  1. This is a contentious issue. Motive can be directly related to export or attempted to export. The Claimant submits there was motive to fell such a large volume of tubi logs, to be exported, whilst the Defendant deny, but admitting felling of tubi trees was for purposes of housing and road construction projects, particularly those which stood on the way. In addition, for dumping swamps and for building of bridges.
  2. It would appear that export of tubi logs was the initial motive but covered up by those projects. That perhaps paved the way for the signing of the MOU to export tubi logs. Definitely as seen, the tubi logs were felled under the License No. A10174 granted to the Defendant on 27th June 2018 and which due to expire on 27th June 2023.
  3. There is also admission that the Defendant had stock-piled large volume of tubi logs at the log pond and obviously that was supposedly to fulfil the MOU.
  4. This issue is obviously the core of this case as I would think. Actually there is no provision precisely provided under those Act for intention as an element. Again motive or intention is a criminal element to proof in a criminal case. However, because the acts complained of is criminal in nature, motive as one of the criminal element to proof must be established by the complainant and for sure the Claimant in this case.
  5. As submitted by the Defendant, there is no initial motive to fell and export tubi logs. The intention was formed later 5 months after logging commenced, hence, the signing of the MOU. I totally disagree with that.
  6. It would appear from the law that felling of tubi trees is not a criminal offence under WP&M Act 1998. But if the intention was to export then the Defendant must have a valid export permit. In addition, the FRTU Act and WP & M ACT are clearly vocal about felling of tubi trees for purposes of domestic use only and not for export. However, the amended regulations which we will see later provided or derogate powers upon the Minister of Forestry to declare a particular species of tree is not or a protected species.
  7. In schedule 1 of the FRTU Act tubi tree is not one of the protected trees. I am aware the appropriate Minister had made an order declaring tubi tree is a protected species under schedule 1 (7). In support of the schedule, S. 44 (1) require the Minister may prohibit felling of any protected tree declared in schedule 1.
  8. After 5 months of logging operation, the Defendant and the landowners endorsed an MOU for felling and export of tubi logs. This occurred on 19th August 2019. The intention is very clear by the words of the MOU.
  9. The question to pause is the Commissioner of Forest and the Claimant aware of this MOU? It may appear the Claimant did, but unsure whether such has come to the attention of the Commissioner.
  10. In any event the Claimant reacted to stock-pile of tubi logs in the pond by instructing the Chief Forestry Officer Isabel, who mobilize Police and the lawyers for the Claimant to carry out inventory assessment of the Defendant’s site operation on lelegia concession area. The data provided according to the sworn statements of Mr. Prescot filed on 26th February 2021 and the sworn statement of M. Jonga filed on 22nd February 2021 that the Defendant had harvested 1482.158 cubic meters of tubi logs.
  11. On 20th July 2020, Mrs Salini from the Commissioner of Forests Office, made a reply to the Defendant’s application to export 567 pieces of logs. 540 logs were tubi trees and 27 are other commercial trees. The question to pause is how would the Defendant felled 1482.158m³ tubi and only 27 logs other commercial trees, for a period of 14 months of logging operation.
  12. The content of the application and the ratio of logs reflected the intention by the parties as contain in the MOU. The imbalance of harvesting of trees further implicated the intention by the Defendant and the landowners to harvest tubi trees purposely for export and not so much concerning other commercial trees. There may be other tubi logs used for the housing estate, but there is no evidence of the number of logs.
  13. The two inventory reports were dated 14th December 2020, 7 months after the logging operation had ceased. The application for permit to export by the Defendant could have been also one or two months after the logging operations had ceased.
  14. There is also no evidence to show how many shipments were made during the course of the period of 14 months of logging operations. If the only shipment which the Defendant wish to export were the tubi logs indicated by the application, then the Defendant and the landowners’ motive and intention to felled tubi trees was for export. The letter seeking export of tubi logs to the Commissioner of Forest was indeed an attempt by the Defendant to export tubi logs, nothing less, nothing more. That is indifferent from the process provided for under the Exchange Control Act and Exchange Control (Foreign Exchange) Regulation, which require an export application be made to the Central Bank of Solomon Islands (CBSI) for approval.
  15. The attempt by the Defendant can also be identified by the action taken by one of its Directors and Mrs. Carolyn who travelled to Buala on 2nd June 2020, with a copy of an export permit to sign by one, Mr. Talu, to facilitate export of tubi logs felled from lelegia customary land. There is an evidence that document was signed as MOU. What actually occurred is logging operation had ceased and the Defendant was attempting to find someone who had a permit to export the tubi logs. The fact that neither the land owners nor the Defendant have any permit at all to export at that time.
  16. One may ask at what stage a logger would obtain a permit. In my view it can be before the logging activities commence. In this case the Defendant still has the chance to acquire a permit to export on behalf of the landowners because the logs had been felled.
  17. What supposed to be the second strategy by the Defendant is to deny any motive existed to export tubi logs, which agreed was formed later.
  18. What transpires from materials is that Mr. Erega and others had a consultation with their Member of Parliament, MP, Mr. Samuel Manetoali who was the Minister of Forestry at that time, paragraph 3 of Mr. Erega’s sworn statement filed on 12th March 2021.
  19. In his sworn statement Mr. Erega admitted tubi trees were prohibited. As a result of the discussion MP Manetoali tabled two papers before the Cabinet which were approved.
  20. The first paper was submitted in 2017. It was for the amendment to the principle regulation 3, to de-regulate tubi as prohibited species and allow it to be exportable but subject to conditions. The second one was another amendment to principle regulation 3, and it was in 2018. Both amended regulations imposed conditions and I sum it up by quoting relevant conditions, they are,
  21. However, both amendment regulation documents were not endorsed by the Minister Mr. Manetoali. The question is whether those amendments were verily gazette or not? Secondly, those conditions were never fulfilled by the Defendant.
  22. The Defendant was issued with a felling license on 27th June 2018 covering three customary lands; one of them is lelegia customary land. The license was granted one month after the second amended regulation was gazetted.
  23. It is crystalline clear therefore, that before the felling license was issued, Mr. Erega and others already had in mind to fell and export tubi logs from their customary land. With that focus in mind the MOU was signed by Mr. Erega for landowners and the Defendant for both to fell tubi trees for export.
  24. After 14 months of logging operation there was no evidence on any earlier shipment. The difference in proportion as to number of tubi logs felled was 540, and other commercial trees were only 27. That is a reflective of true intention to fall tubi trees for export. Probably some small proportion was for housing and road construction projects. That motive was pre-existence before any logging operation commenced.
  25. The signing of the MOU was required by condition (5) above. The fault was that no one from Constituency or representative of the Constituency signed. Therefore, that regulation was breached by the Defendant and the land owners. That MOU become a purported document without any effect.
  26. Subsequently logging operation ceased in May 2020. On 9th July 2020 an MOU was signed by the Defendant and Mr. Humphry Talu, a holder of a permit CCL 20181671 under Wildlife Management and Protection Act 1998. The Defendant was supposed to use and export tubi logs under that permit. Since then there was no export of tubi logs done.
  27. Another attempt by the Defendant was by writing a letter to the Commissioner of Forests, perhaps before the 26th February 2021. No copy of that letter was exhibited. However, the Commissioner’s reply on 26th February 2021 stated clearly refusing to issue export permit because lelegia customary land was not located within nickel mining tenement in Isabel. Therefore, the Defendant request was disqualified under the first amended regulation 5 (a) of 2017. Whether the Commissioner was right or not, that is for someone to assess.
  28. Before the timber rights process was commenced under the FRTUA, and a subsequent determination in Form 1 application, the Defendant and the landowners led by Mr. Erega had already in mind the intention to felled all the tubi trees in their land for export.
  29. The road construction project by the National Government and housing project by the MP were just excuses capitalized by the Defendant and the landowners.
  30. In reality there is no evidence how many houses were completed and how many were yet to be completed. The same can be said in relation to the road construction, how many kilometers had been covered and how wide was the road. These evidence are important to ascertain, not to exact, but the number of tubi trees would be used for the housing project and how may fell to allow for or make way for the construction of the road.
  31. Evidence also revealed that the Defendant did place some effort to export the 540 tubi logs that were ready to be exported. However, it appears its previous attempt did not comply with the amended regulations. So its application for grant of permit was rejected by the Commissioner of Forest. The MOU signed with Wildlife Isabel CCL cannot be implemented because the permit owner was from a different constituency.
  32. It now appears if the Defendant has committed any criminal offence, it would be under Wildlife Management and Protection Act 1998, S. 11 (1) by attempting to export tubi logs without valid export permit. But for any other offences related to illegally felling of tubi trees, is not provided for under the WLPM Act 1998.
  33. Another possible offence would be failure by the Defendant to obtain business license from the Provincial Government permitting it to carry out trade in wildlife contrary to section 14 (2) of WLPM Act 1998. However, it can be argued that breach of S. 14 (2) had been remedied by not accepting the Defendant’s application for a permit.
  34. Rhetorically the landowners and the Defendant had been trying their best to comply with the two amended regulations. To date they have not obtained any permit yet.
  35. There is evidence that the landowners are trying to incorporate a Company to deal with the issue of obtaining permit to export tubi logs that had been accumulated at the log pond. In any event any attempt to export must abide with the amended regulations.

ISABLE PROVINCE RESOURCES MANAGEMENT AND ENVIRONMENT PROTECTION ORDINACE 2005 (IPRMEPO):

  1. Under paragraph 5 of the statement of case, the claimant alleges that the Defendant did not comply with the above Ordinance, therefore should cease operation.
  2. There was no particular section pointed out the allegation that the Defendant failed to comply with the Ordinance by felling tubi trees thus committed an offence. I have the privilege to peruse the Ordinance thoroughly and I find there is no section in the entire Ordinance which criminalizes the Defendant for felling of tubi tree.
  3. Section 5 of Part II of the Ordinance provides for protection of resources. S. 5 (1) protection of marine resources. Tubi is not one of them. S. 5 (2) protects Wild life resources and are listed in Schedule 1 Part B. Tubi species is not one on the list.
  4. Indeed there is no provision in the IPRMEPO that makes tubi a protected species or prohibited that once felled makes it unlawful.
  5. Therefore, the Defendant has not unlawfully felled tubi trees under this Ordinance. Hence there is no basis for relief (1) in the claim.

Santa Isabel Provincial Business License (Amendment) 2013/Santa Isabel Provincial Business License 2013:

  1. I noted there is no Santa Isabel Provincial Business License (Amendment) 2013, only Santa Isabel Provincial Business License 2013 which still exists. The submission by the Counsel for the Defendant has confirmed this error.
  2. Again there is no provision in the Ordinance that criminalized felling of tubi species or exporting it. Therefore, the Defendant does not commit any offence under this Ordinance.
  3. Under Isabel Provincial Business License 2013, possible offence would be S. 14 (2) of Wildlife Management and Protection Act which makes reference to the Province. But the section is a self-remedial section, that is, failure to obtain License from Province to carry out trade in Wildlife; the Commissioner of Forest will not issue a permit. The fact is that the Defendant did not benefit or acquire a permit from the Commissioner. As a result, its application was rejected. It would appear this license should be obtained first before felling of the tubi trees commenced.
  4. There is nothing in the laws that give power to the Province to issue license for felling of tubi trees. The only license issued by the Province is in relation to persons who wish to trade in wildlife. However, the Claimant does not wish to pursue it under this section, hence not mention of it in the relief or in the statement of case.

Seizure of Machines:

  1. The ex-parte orders were granted on 26th February 2021 against the Defendant. Order 3 is to seized and takes possession of all the equipment used in the felling of tubi trees at the cost of the Defendant.
  2. The Claimant basically relies on the fact that the Defendant had illegally felled tubi in breach of the three legislations. Unfortunately, there was no particular section of each legislation identified or referred to as being breached or committed.
  3. In relief one (1) Claimant seeks an Order for it and its authorities to forfeit and sale all the Defendant’s equipment that were involved in commission of the offences under these legislations. I noted there is no offence under IPRMEP Ordinance to fell tubi species. There is no court judgment and order for forfeiture and sale of Defendant’s equipment following such conviction. Therefore, no basis for the relief, there is no cause of action disclose.
  4. In relief 1 (c) the Claimant seeks an Order for it or its authorized Officers to forfeit and sale all the Defendant’s machineries used in Commission of an offence under Santa Isabel Province Business License (Amendment) 2013. Unfortunately, there is no business license amendment in 2013. And no section particularly referred to as being breached. I can confidently conclude that there is no offence under 2013 Ordinance to criminalize felling of tubi trees. Ultimately it is very clear there’s no ground sustaining relief 1 (c), therefore there is no cause of action disclose.
  5. In reality the facts stated in the Statement of case do not support the remedies sought therefore, has no cause of action.
  6. As I have stated in my analysis in connection with motive or intention by the Defendant, let me conclude by saying felling of tubi is not an offence under WLPMA and two other Provincial Ordinances. The only offence is exporting tubi or attempting to export tubi under s.14 (1) of the WLMP Act 1998. Actually there was no exporting of tubi yet. No evidence this had been done but still in storage or stockpile in the log pond.

Abuse of process:

  1. Has the Claimant abuse the court process by filing this claim? The Defendants Counsel refers to the case of Goldsmith above. The paragraphs quoted and define what abuse of the court process is.
  2. Again the Counsel submits relying on S.76 of Criminal Procedure Code (CPC), that the Solicitor for Claimant had drafted the charges and request the Defendant to respond to.
  3. S. 76 of CPC is quite clear. However, if the Claimant chooses to conduct a private prosecution he may rely on S. 75 of CPC. That means drafted all the charges lay it before a Magistrate to check, if all is correct then will endorse and the Counsel have to serve and charge the culprit. If the charges were not checked and endorsed by a Magistrate before service and charge was done, then it is improper and an abuse of court process.
  4. S. 75 of CPC allows a privilege for the Claimant to conduct private prosecution by itself and not by Police. Which means Police will not play any role in the investigation and prosecution of the case.
  5. The Defendant also submits that it is abuses of process where the claim was based on facts which do not show criminal offences were been committed. The Counsel suggests the criminal case should go first. The Counsel based his argument on the principle of felony/tort rule, and refers to the cases of Zaku V Public Service Commission[11] Mike V Tavake,[12] and Ganifiri V Toito’ona[13].
  6. The Counsel further argues where it is alleged law has been committed and breach is said to amount to criminal conduct, the breach cannot be used as a ground for injunction. Because injunction is a civil remedy which determine rights of parties and criminal conduct is an offence against the state.
  7. I will disagree with that proposition. Where an equipment or machinery is used to commit an offence, or likely to commit an offence, that equipment or machinery can be seized to allow for investigations. In logging operations, that can be injuncted until such further orders.
  8. Where machines are seized by authority they be kept under their possession in a safe and secured place until such further orders, or in a criminal case until accused person charges is finally heard and determined by the Court, but not for sale without further order from the Court.
  9. In an ex-parte application for orders, it is done by either single Counsel appearing before a judge, or it is done on paper. Unless the court thinks otherwise that such application is served for an inter-parte hearing, which the court will direct.
  10. Conclusively, at that time of hearing of the application on paper and orders prayed for were granted, there is no evidence that an offence has been committed. A simple belief by the Applicant that an offence has been committed is enough to render ex-parte orders being granted. The rest is left for full investigation on the allege criminal offending.
  11. There is a company called Wildlife Isabel CCL which had permit to export tubi. The Company has business license from the Claimant to export tubi.
  12. One of the Shareholders and directors of the Company is Mr. Humphrey Talu who is one of the Solicitors for Whitlam Togamae Lawyers, the Solicitor for the Claimant. The contact person for the Company is the Principle for Whitlam Lawyers, who is also the Solicitor for the Claimant.
  13. The Company had endorsed an MOU with the Defendant to export felled tubi logs under the Company’s permit and license. That company then had advanced $80,000.00 from the Defendant to renew its business license to enable export the tubi logs. Eventually the Company did not export the logs because it was contrary to amended regulations 2018 which require the permit owner must be from the Constituency where the logs extracted and that Company was not qualified under that condition.
  14. In one glance it can be an abuse of process where motive behind the filing of this claim by Whitlam Lawyers is to secure business for Wildlife Isabel CCL, a Company which Mr. Talu and Mr. Togamae have interest.
  15. In another observation owners of Wildlife Isabel CCL were ignorant of the law. Yes, the Company was owned by a batch of lawyers. If they are smart they would not have endorsed the MOU with the Defendant to export the logs, because there was no memorandum of agreement signed between the landowners, the Defendant and the Constituency for the harvesting of tubi in accordance with the Amended Regulation 10 (A) (iv) of the Amendment Regulation 2018. This regulation in my view should be endorsed first before embarking on felling of tubi trees, or before logging commenced. It can be tantamount to an offence as well. However, it depends on a Solicitor, but nothing is alleged in the claim and there is no relief for it.
  16. The second part of their ignorance is that as lawyers they were expected and ought to be well versed with Amended Regulation 10A (ii) of 2018, that the Constituency is the only authority allowed to export tubi. That company may not be located within the permitted Constituency to acquire permit to export tubi logs. So it’s a double jeopardy in this.
  17. The amount of $80,000.00 advanced from the Defendant is a pure debt and is ought to be reimbursed.

Summary:

  1. In summary, I find there was an attempt to export tubi logs located in the pond or along the road by the Defendant. Argument from the Defendant states that the Defendant did that on behalf of the landowners. In any event the Standard Logging Agreement (SLA) endorsed by the Defendant and representatives representing landowners bound both the landowners and the Defendant to work together, and export the logs felled. The proceeds for sale are also managed by the Defendant.
  2. The intention to export was cemented by the MOU signed by the Defendant and representative of land owners on 19th August 2019. The intention of the MOU failed when the Commissioner refused to grant the permit to the Defendant. This gave rise to the signing of another MOU between the Defendant and the company called Wildlife Isabel CCL on 9th July 2020, so that Wildlife Isabel CCL, which had a permit to export the tubi logs on behalf of the Defendant and landowners. That was failed as well because the logs were felled from a different constituency.
  3. The attempt to export tubi by the Defendant is an offence under S. 11 (1) of the WPM Act 1998. However, there is no relief stated in the claim for breach of an offence under WLPM Act 1998, no section was mentioned as being breached.
  4. In civil litigation perspective, there is no claim for relief of an offence committed under Wildlife Protection and Management Act 1998, against the Defendant.
  5. In the statement of case the only mention of it is in the last paragraph, paragraph (10). It refers to none compliance with Wildlife Protection and Management Act 1998. There is no section or provision refer to, even no further elaboration that the Act was breached or a particular provision was offended.
  6. In this particular issue there was no relief or remedy sought for breach under WP&M Act 1998. If no relief is sought, then there is no cause of action. The facts in paragraph (10) of the statement of case is just on ordinary mention of the Act without any specification of which provision was not complied with, which therefore give rise to a relief sought.
  7. Apart from the Wildlife Protection and Management Act, the two Isabel Provincial Ordinances, Isabel Province Management and Environment Protection Ordinances 2005 (IPRMEPO) and Santa Isabel Provincial Business License Ordinance 2013 also provided no section in law that makes it an offence to fell tubi trees. Therefore, the Defendant which felled tubi trees is not offending any section of those two Ordinances.
  8. The only provision which the Defendant failed to comply with is S. 14 (2) of WLP&M Act. When the Defendant applied for a permit from the Commissioner of Forest it failed to disclose a valid business license issued by Isabel Provincial Government permitting it to carry out trading in Wildlife.
  9. Again as I mention earlier, the provision is self-executioner. Before the Defendant can carry out trade in Wildlife this license must be obtained first. The Director or Commissioner of Forest will not consider the application for permit without this license. Perhaps this may be one for the breaches the Claimant failed to allege.
  10. Comprehensively the Claimant failed to utilize this line of argument. It merely mentions in relief 1 (c), the commission of offence under Santa Isabel Business License (Amendment) Ordinance 2013. Hence, if there is any allegation of criminal offending, under any section in the ordinance 2013 should be law provided for, in particular the actual section. In this case the Claimant provided none. Therefore, there is no cause of action disclosed.
  11. In paragraph 5 of the statement of case the Claimant merely states the Defendant has no business license, which license it refers to? The Claimant’s business license to operate business in the Province is still valid at that time. The Claimant attempted to say there should be a separate license for felling of tubi trees. There is nothing provided in the Santa Isabel Province Business License Ordinance for that.

Inter parte hearing:

  1. In considering the inter parte hearing, the question to pause is, are there issues identified for the Court to investigate at trail? Indeed, there is no issue at all. If the evidence remains as it is, the claim is likely to fall on its face.
  2. And so, where does the balance of convenience lie. Because there is no issue to be investigated at trail, there is no legal requirement for the court to convene. That should render the balance of convenience tills towards the Defendant.
  3. The extraction of tubi logs was done by consent of the landowners. Therefore, whatever damages occurred in terms of damage to soil, felling and conversion and extraction of tubi logs is absorbed by the landowners, hence no damages shall be awarded. The Province or the Claimant has no part of it.
  4. From the entire case, and having peruse the evidence, in the file, and having drawn the assessment from the evidence supporting the facts, I hereby struck-out the claim in its entirety and discharge the ex parte orders granted on 26th February 2021.

Application for default judgment:

  1. Since I have struck out the claim, there is no legal basis upon which the application for default judgment to hang on. I must therefore dismiss the application for default judgment as well.
  2. In relation to tubi logs that have been felled the Defendants have option to sell those, under the amended regulation 2018; that the Constituency, landowners and the Licensees must sign a memorandum of understanding. One thing for sure the logs have been harvested without the legitimate and proper parties to sign the MOU. However, the tubi species are now lying in log pond, they need to be removed. I suggest the Defendant, landowners and the Constituency have obligation to sell those logs.
  3. Finally let me mention that there are breaches but the claim and relief sought were poorly drafted leaving out major relief, and the rest of the reliefs are not supported by statement of case and evidence.

Orders:

  1. The claim filed on 22nd February 2021 is hereby struck out.
  2. The application for default judgment is hereby dismissed following the striking out of the claim.
  3. All the restraining orders be discharged
  4. The Defendant and landowners and constituency to sell the volume of tubi species now in the log pond complying with amended regulation 2018.
  5. All the logging machines and equipment be returned to the Defendant forthwith.
  6. The cost of this hearing shall be borne by the Claimant payable to the Defendant.
  7. That $80,000.00 advanced made by Wildlife Isabel CCL from the Defendant be reimburse to the Defendant forthwith.

The Court.
Hon. Mr. Faukona Rex.
Deputy Chief Justice.

[1] [2002] SBHC 10; HC-CC 29 of 2001 (18 March 2002)
[2] [1994] SBHC 22; HC-CC 197 of 1994 (12 August 1994)
[3] [2016] SBHC 118; HC-CC 117 of 2015 (22 July 2016)
[4] [2015] SBCA 4; SICAO- CAC 2 of 2015 (24 April 2015)
[5]. Ibid (1)
[5][1991] PNGLR 265 (7August 1999 (18 October 1999)
[6] Ibid 6
[7] [1999] SBHC 140; HC-CC 197 of 1999 (18 October 1999)
[8] Civil Case No. 65 of 1917.
[9] [2000] SBHC 31; HC-CC 127 OF 2000 (8 August 2000)
[10] [1977] 1 WLR 478
[11] [2003] SBHC 58; HC-CC 95 of 2000(5 November 2003).
[12] [2003] SBHC 78; HC_CC 134 of 2003 (6 November 2003).
[13] [2004] SBHC 45; HC-CC 172 of 2003 (21 May 2004).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2022/3.html