Solomon Islands Resources Ltd v Cui Jiantao [2023] SBHC 137; HCSI-CC 550 of 2022 (1 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solomon Islands Resources Ltd v Cui Jiantao
Citation:
Date of decision:	1 December 2023
Parties:	Solomon Islands Resources Limited v Cui Jiantao, Golden Star Resources Limited
Date of hearing:	8 & 20 November 2023
Court file number(s):	550 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	On the totality of the evidence of the Claimant and the First and Second Defendants, I am not sufficiently satisfied that the Claimant has proved their case and I dismissed it with cost.
Representation:	Mr Steve Lalase for the Claimant Mr Peter Teddy for the First and Second Defendants
Catchwords:
Words and phrases:
Legislation cited:	Mines and Minerals [cap 42] S 70
Cases cited:	Yoe v Iromea [2018] SBCA 6,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 550 of 2022

BETWEEN

SOLOMON ISLANDS RESOURCES LIMITED
Claimant

AND:

CUI JIANTAO
First Defendant

AND:

GOLDEN STAR
Second Defendant

Date of Hearing: 8 & 20 November 2023
Date of Decision: 1 December 2023

Mr Steve Lalase for the Claimant
Mr Peter Teddy for the first and Second Defendant

JUDGMENT

Bird PJ:

1. This is a claim for restraining orders and damages for nuisance, trespass and wrongful conduct. The First and Second Defendants have filed their defence denying the allegations levelled against them and a trial was conducted on 8^th November 2023.
2. As I can understand it, the claim of the Claimant is because of the interference of the First and Second Defendants, they were unable to further their application for a prospecting license over tenement D and E situated on Isabel Island. The issues for consideration by this court therefore would be:
   • (i) Whether or not the defendants interfere or disturb the claimant’s prospecting license operations on tenement D and E?
   • (ii) Whether or not the defendants incite and finance the landowners of tenement D and E to disturb the claimant’s due process under the Mines and Minerals Act?
   • (iii) Whether or not the claimant is entitled to sue for unlawful obstruction of license, nuisance and trespass against the defendants?
3. In support of their case, the Claimant relies upon the trial book filed on 3 October 2023, the Defendants answers to the Claimant’s interrogatories and the agreed facts and issues filed on 12 September 2023. Two witnesses were called by the Claimant to give evidence in court.

The case for the Claimant

4. The first witness called by the Claimant was Charles Mariu Nihamae. This witness was referred to his sworn statement filed on 23 November 2022 on pages 35 to 47 of the Court Book. That sworn statement was tendered in court as the evidence in chief of Mr Nihamae. This witness is the chief and leader of Vihuvunagi tribe who owns Nakredio Lodusapeo customary land in Isabel Province. For the purpose of this proceeding, the land mentioned is described as tenement D21 and D22 within the Claimant’s prospecting License.
5. It is stated in his sworn statement that this witness was introduced to the Defendants by John Mark Doedoe and Wilson Tohidi at Town Ground in about April 2021. That on 5 December 2021, he could recall signing a letter, in support of the Second Defendant. He also said he was paid $50,000.00 by one Mr Zhengu Li, one of the Second Defendant’s Director.
6. This witness also stated that he further signed a letter dated 28 April 2022 in support of the Second Defendant. He said that he signed the two letters because he thought, the Second Defendant had complied with the normal processes of applying for a prospecting license. It was after the signing of the letter of 28 April 2022 that he realised that something was amiss and had decided to deal with the Claimant.
7. In cross-examination, Mr Nihamae confirmed that his evidence only relate to tenements D21 and D22. Issues were raised in relation to paragraphs 9, 10 and 11 of his sworn statement on page 37 of the Court Book. He stated that the Defendants promised to pay them $50,000.00. When further questioned on the identity of the person, Mr Nihamae identified the person as Choi. He said that Choi informed them through an interpreter being Mr John Liu.
8. This witness further told the court in cross-examination that it was Zhenyu Li that gave him the $50,000.00 in cash at Town Ground. No one was with him when Mr Li gave him the money. When further questioned, Mr Nihamae told the court that he had never met Mr Zhenyu Li.
9. In relation to paragraph 13 of his sworn statement, Mr Nihamae was questioned why he signed the letter of 28 April 2022 and his answer to that question was because he was promised to be paid some money by the Defendants. He further stated that he supported the Second Defendant before 28 April 2022. He changed his mind and signed a Surface Access Agreement with the Claimant on 28 April 2022 because he was then convinced that the Claimant has a valid LOI from the Ministry of Mines.
10. In re-examination, Mr Nihamae told the court that he was advised to sign the letter of the 5 December 2021 to support the Second Defendant’s application for a LOI. The Defendants also promised to give him money. In relation to the letter dated 28 April 2022, he stated that he did not know who wrote the letter but he was advised to sign it so that a LOI could be issued to the Second Defendant. He was given substantial amount of money by the Second Defendant but he had decided to support the Claimant because he was shown their LOI by the Ministry of Mines.
11. The second witness for the Claimant was Tony Liu who is the General Manager of the Claimant. His evidence in chief is contained in his sworn statement filed on 8 September 2023 and could be found on pages 170 to 187 of the Court Book. The summary of the evidence of this witness is that the Claimant was initially issued with a LOI by the Ministry of Mines on 22 December 2020. That LOI was not further progressed because of change of management of the company and the LOI had expired after three months. A letter requesting an extension was made on 22 December 2020. That extension was granted by the Ministry on 17 September 2021 to 17 December 2021. Due to the effect of COVID-19, that period was further extended on 29 March 2022, for one month to 29 April 2022 to negotiate with landowners and to execute Surface Access Agreements. Mr Liu further stated that the Claimant had executed Surface Access Agreement with prominent landowners in April 2022.
12. In cross-examination, Mr Liu was asked by Counsel Mr Teddy to say what type of disturbances did the Defendants made to the Claimant. Mr Liu said that it was by way of a letter. When asked about which landowners, he forgot their names. He could only remember one Charles. Mr Liu also stated that the extension of the Claimant’s LOI on 29 March 2022 was due to the disturbances caused by the Defendants and not the effects of COVID-19.
13. Having called the two witnesses mentioned above, Mr Lalase informed the court that his final witness Chief Samuel Tupiti was not available for cross-examination for the reason that he is sick and is bed-ridden. No medical report was produced to confirm Chief Tupiti’s health condition. This issue will be discussed later in this judgment.

The case for the First and Second Defendants

14. The Claimants allegations against the First and Second Defendants are denied by them. The Defendants placed reliance on the Court Book and the Agreed facts and issues. The Defendants see this case as a dispute between the management of the Claimant and the Second Defendant. The Defendants called and relied upon the evidence of two witnesses.
15. The first witness called for the First and Second Defendants was Cui Jiantao. His evidence in chief can be found on pages 125 to a page that the court cannot say because the court book is illegible from that page on. This court book was filed by Mr Lalase and he had never taken the time to make sure, the court’s copy was legible. He never did and most other pages were illegible That is of no assistance to this court.
16. In cross-examination, Mr Jiantao confirmed that he was a former employee of the Claimant and a current Director of the Second Defendant. He stated that the Second Defendant lodged an application for prospecting license with the Ministry of Mines on 17 December 2021. This witness denied holding any meetings with landowners of tenement D18, 19, 20. 21, 22, 23 and 38. He also denied handing out money to the landowners. He also stated that his workers met with landowners and his company also have a LOI over tenement D.
17. The next witness for the First and Second Defendants was Jiang Zhu. Mr Zhu’s sworn statement was filed on 11 March 2023 which is also his evidence in chief. That sworn statement can be found on pages 188 to 198 of the Court Book. The summary of Mr Zhu’s evidence in chief is that the Second Defendant was issued with a Prospecting License No. PL- 02/21 with maps and coordinates over tenement D in Isabel by the Ministry of Mines. His evidence is also to the effect that the First Defendant being. Cui Jiantao and himself are directors of an entity known as Far East Resources Company Limited who possesses prospecting License PL- 06/22 over areas known as “South San Jorge Prospect, San Jorge Island, Isabel Province”.
18. Mr Zhu also stated that the landowners of the tenements within South San Jorge Prospect, San Jorge Island, Isabel Province are the same landowners who own D18, D19 and D21 and a few landowners in D38. In that regard, the First and Second Defendants would also be discussing with the same landowners but over their own tenements, and not the Claimant’s tenements.
19. In cross-examination, Mr Zhu stated that employees of the Second Defendant had discussed with the same landowners but in respect of the San Jorge tenement. He also stated in cross-examination that the Defendants do not have LOI over D18, 19, 20, 21, 22, 23 and 38 but stated that the Defendants have some land blocks in tenement D. He said they have landowners from D18, D19, D20, D21, D23 and D38 who are also landowners in San Jorge. They had meetings and discussions with the concerned landowners over their own tenements, not the Claimant’s.

Discussion on the issues

20. The first issue that this court must determine in this case is whether or not the defendants interfere or disturb the Claimant’s prospecting operations on tenement D and E. The evidence on this issue is derived from the two witnesses called by the Claimant. The third witness Chief Tupiti was not called as a witness and was not cross-examined by the Defendants’ lawyer. Notice to cross-examine this witness was filed by the Defendants on 9 October 2023. I am told Chief Tupiti is sick and bed-ridden and unable to attend court to be cross-examined on his evidence through his filed sworn statement. There is also no medical report provided by the Claimant as to the health condition of this witness.
21. Mr Teddy of counsel for the Defendants objects to the use of the sworn statements of Chief Tupiti in this proceeding on the basis that his evidence in the sworn statements filed are contested by the Defendants. They have given notice to cross-examine this witness but that cannot be achieved due to the witness’s non-availability. By the authority of the case of Yeo v Iromea [2018] SBCA 6; SICOA-CAC 13 of 2017, I would therefore disallow the admission of the sworn statements of Samuel Tupiti filed on 23 November 2022 contained in pages 49 to 88 of the Court Book as evidence in this case.
22. Having said the above, the only admissible evidence on behalf of the Claimant is that of Mr Nihamae and Mr Tony Liu. The evidence of Mr Nihamae is that he was advised by the Defendants to support them as against the Claimant and he will be paid money by one Zhengu. After giving evidence to that effect and upon cross-examination, he stated that he had never met Zhengu. He further stated in evidence that he had realised that the Claimant had a valid LOI and he signed a Surface Access Agreement with the Claimant.
23. Mr Liu’s evidence is that the disturbances and interferences by the Defendants was through a letter written by the landowners. There no other evidence of the nature of disturbances and or interferences of the Defendants. That evidence is also confirmed by the evidence of Mr Nihamae to the effect that he was advised to signed letters of 5 December 2021 and 28 April 2022.
24. It is interesting to note that apart from those pieces of evidence, Mr Liu also stated in his sworn statement discussed above that the Claimant executed a Surface Access Agreement with prominent landowners in April 2022. When the court enquired of this witness whether or not they were issued with a prospecting license, he answered in the affirmative.
25. It is also important to put into context the evidence of the Defendants on the first issue. The evidence of Mr Zhu is to the effect that the Second Defendant also have prospecting license PL- 02/22 over tenement D in Isabel. Further to that, another company in which the First Defendant and himself are directors possessed PL- 6/22 over San Jorge, also in Isabel. He said the landowners in the San Jorge tenements are also the same landowners in tenement D18, D19, D20, D21, D23 and D38. Those same landowners must also execute the necessary agreements with the First and Second Defendants over their own tenements.
26. The Claimant had failed to disclose to this court any copy or copies of their Surface Access Agreements with their landowners. They have also failed to disclose their prospecting license and when the said prospecting license was issued by the Ministry of Mines, even though they said they have a prospecting license and they are currently carrying out prospecting operation within their tenements without hindrance from the Defendants.
27. The issue of non-disclosure of material evidence would prove fatal to the claim of the Claimant. They are alleging that the Defendants have disturbed and or interfered with their prospecting operations on tenement D and E. Apart from the issue of non-disclosure of material evidence in this case, I am not sufficiently satisfied that the Claimant had proved issue one. The Claimant is currently carrying out prospecting operation on tenements D and E and there is no disturbance and or interference from the First and Second Defendants.
28. Issue two is whether or not the Defendants incite and finance the landowners of tenement D and E to disturb the Claimant’s due process under the Mines and Minerals Act. The summary of the evidence in support of the Claimant’s contention is also derived from their two witnesses. According to the summary of their evidence, the Defendants have incited and financed the landowners to work against the Claimant’s due process.
29. As discussed under issue one above, the only allegation are the letters dated 5 December 2021 and that of 28 April 2022. Notwithstanding the two letters, Mr Nihamae gave evidence to the effect that he executed a Surface Access Agreement with the Claimant on the very same day being 28 April 2022. That letter dated 28 April 2022 is of no effect because a Surface Access Agreement had been executed with the Claimant. That had led to the issuance of a prospecting license to the Claimant by the Ministry of Mines.
30. It should also be noted that the reason why an extension was granted by the Ministry to the Claimant on 29 March 2022 was because of the effect of COVID-19. See the letter from the Claimant dated 23 March 2021 at page 179 of the Court Book. From their own evidence, the reason for requesting the extension was due to the effect of COVID-19. On that note, I am also minded to repeat my paragraphs 25, 26 and 27 above.
31. It is also noted that Mr Nihamae stated in cross-examination that he had never met Mr Zhengu, whom he said earlier stated was the person that gave him $50,000.00 in cash. That had put his evidence about being paid money into doubt. How would he be given money by a person that he had never met. So on the balance of probability, I am not satisfied that the Claimant has proved issue number two.
32. The third issue is whether or not the Claimant is entitled to sue for unlawful obstruction of license, nuisance and trespass against the Defendants. The Claimant based their claim under section 70 of the Mines and Minerals Act (cap 42). I set out that provision:
    • s. 70 Any person who:
    1. .............
    2. unlawfully interferes with or obstructs any holder of a permit, license, lease or their servants or agents in to exercise of any rights acquired under this Act;
    • shall be guilty of an offence and shall be liable, on conviction before a Magistrate, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment.
33. On the outset, I would like to state in clear terms that the purpose of this section is to create a statutory offence under the Act. There is no evidence before this court that the Claimant had lodged a criminal complaint to the police for investigation and prosecution of the First and Second Defendants and or any other persons who were allegedly involved.
34. In any event, the circumstances that I have discussed in respect of issues one and two above are also very relevant consideration in respect of issue three. As stated earlier in this judgment, there is no evidence adduced by Mr Nihamae and Mr Liu that can support a finding that the issues raised in this proceeding are sufficiently proved by the Claimant. And coupled with the issue of non-disclosure of material evidence in the trial, the case for the Claimant must fail.
35. It is also pertinent to note that the witness Nihamae can only give evidence in respect of D21 and D22, over the land area that his tribes owns. His evidence does not cover D18, D19, D20, D23 and D38. In any event, there is just no evidence to show to this court that there was unlawful obstruction of license, nuisance and trespass by the First and Second Defendants. In fact, if issue three is about the Claimant’s license then it does not correspond with the evidence of the two witnesses for the Claimant. The evidence of the two witnesses of the Claimant were basically during the negotiation stages and not when the Claimant had had their prospecting license issued to them. And there is no evidence before this court that the Claimant has a valid prospecting license on foot which is the material non-disclosure by them.
36. On the totality of the evidence of the Claimant and the First and Second Defendants, I am not sufficiently satisfied that the Claimant has proved their case and I dismissed it with cost.

THE COURT
Justice Maelyn Bird
Puisne Judge