Marasini v Haga [2024] SBHC 66; HCSI-CC 99 of 2024 (10 April 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Marasini v Haga
Citation:
Date of decision:	10 April 2024
Parties:	Walter Marasini & Party, Emmanuel Tora v Rodney Haga & Others, Green Gold Holdings Pty Ltd, Middle Island Investment Ltd
Date of hearing:	10 April 2024
Court file number(s):	99 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	1. This proceeding is hereby dismissed by the Court’s own motion pursuant to Rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 on the grounds of disclosure of no cause of action and an abuse of the Court’s process. 2. In consequence hereof, the Interim Orders issued in this proceeding on 26th March 2024 is entirely set aside. 3. The Claimants to pay cost of this proceeding to all the Defendants on standard basis, to be taxed if not agreed. 4. Right of appeal applies.
Representation:	Mr. J. Iroga for all the Claimants (not present) Mr. S. Lalase for all the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r9.75 (b) and (c), Australia Civil Procedure C by Bernard Cairns, Third Edition, 1992
Cases cited:	Uiga v Habo [1998] SBHC 114,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 99 of 2024

BETWEEN:

WALTER MARASINI & PARTY
First Claimants

AND:

EMMANUEL TORA
(Representative of late Beato Tora)
Second Claimant

AND:

RODNEY HAGA & OTHER
First Defendants

AND:

GREEN GOLD HOLDINGS PTY LT
Second Defendant

AND:

MIDDLE ISLAND INVESTMENT LTD
Third Defendant

Date of Hearing: 10 April 2024
Date of Ruling: 10 April 2024

Mr. J. Iroga for all the Claimants (not present)
Mr. S. Lalase for all the Defendants

RULING

Commissioner Aulanga

1. This is an application by all three Defendants (Applicants) to vary the ex parte order issued by the Court on 26^th March 2024. The application was supported by a sworn statement of Rodney Haga filed on 2^nd April 2024 and a sworn statement of Samuel Torrecampo filed on 5^th April 2024.

Brief fact of the case

2. The First Defendants have ownership of Gatogauwaria customary land in Makira, Makira-Ulawa province. Gatogauwaria is one of the concession areas under felling license no. A102222 of the Second Defendant, issued by the Commissioner of Forest. That license is currently valid and will expire on 18^th May 2028. The Third Defendant is contracted by the Second Defendant to do logging operations inside Gatogauwaria and other customary land listed in Form B of the felling license of the Second Defendant.
3. The Claimants are from Tahitarau customary land. Tahitarau is not a concession area and therefore, is not subjected to the logging operations of the Defendants.
4. In order for the Defendants to access Gatogauwaria, they have to go through Tahitarau and other land as access roads pursuant to access agreements. Except for the access road, the logging operations never entered or trespassed into the Tahitarau land. It appears that based on the access agreement, the parties herein have agreed to use Tahitarau as a log pond.
5. As the logging operations continued inside the concession areas, the Claimants mounted roadblocks at the access roads and caused disturbances against the Defendants. This prevented the Defendants from using the access roads to conduct their normal logging operations and moreover, from transporting and exporting of the logs felled from the concession areas. As a result of the ongoing disturbances, the Defendants commenced a proceeding in HCSI CC 94 of 2024 against one of the Claimants herein named Walter Marasini. That proceeding is still active and is yet to be finalised.
6. On 11^th March 2024, an ex parte order was issued by the Court in that other High Court proceeding, restraining the First named Claimant (respondent in HCSI CC 94 of 2024) from causing the roadblocks and other forms of disturbances against the Defendants. I shall refer to this order as the First Order.
7. Despite the existence of the First Order, the Claimants herein somehow filed a claim in Category A on 13^th March 2024 for this proceeding. On 26^th March 2024, they applied for an ex parte order. Unbeknown to the Court of the First Order, the application was heard and the ex parte order was granted. I will refer to this as the Second Order. In other words, the Claimants did not disclose the First Order to the Court at the time they made the application for the Second Order. The Second Order, amongst others, in fact restrained the Defendants from carrying out logging activities inside Tahitarau land and also from exporting of the logs extracted from the Tahitarau land. That order only confined to Tahitarau and not Gatogauwaria and other concession areas.
8. By the operation of these two orders, the nature of both cases (HCSI CC 94 of 2024 and present case) now turns out to be that all the parties are now restrained and become deadlock in the orders.
9. Realising the predicament caused by the Second Order, the Defendants on 5^th April 2024 then filed an application to vary the Second Order, purposely to allow the export of the logs felled and extracted from concession areas that are outside of Tahitarau and are lawfully granted under the license of the Second Defendant.
10. Unfortunately, there is no response by the Claimants.

Defendants’ submissions

11. The evidence from the sworn statements of Samuel Torrecampo and Rodney Haga showed the Claimants are from Tahitarau land. They have no customary ownership or interest in the Gatogauwaria land. All the logs restrained by the Second Order are from the Gatogauwaria and other concession land. Tahitarau and Gatogauwaria are two different customary land with no common or shared boundary. Gatogauwaria is within the Marugunai customary land, physically and geographically far from Tahitarau. Except for the road access and the use of the log pond, the logging operation has never reached or trespassed into Tahitarau. By implication, the Claimants are simply causing unnecessary disturbances into the affairs of the Defendants by unnecessarily restraining the export of the logs extracted from the concession areas by the Second Order.
12. The non-disclosure of the First Order by the Claimants at the time the Second Order was procured is also a ground to vary or perhaps to set aside the Second Order. This is a recognised ground in any interlocutory hearing to set aside an order. The Claimants knew of that order, yet they deliberately concealed that from the Court. That is unethical and a ground to set aside the order.

Should the Second Order be varied or set aside?

13. The application herein is to vary the Second Order so that the Defendants can be allowed to export the logs felled and extracted from the Gatogauwaria and other concession areas.
14. I have had the opportunity to look at this case and noted the following pertinent matters considered decisive to the outcome of the case. First, the Claimants are from Tahitarau, a different land from Gatogauwaria. Therefore, their interest is unconnected and too remote over the logging operations in Gatogauwaria and other concession areas. I do not have any evidence before me to show that their claim in disturbing the logging operations of the Defendants could be attributed to disagreements over unresolved ownership of the Gatogauwaria. Even if it involves a disagreement over the use of the log pond or access road, unfortunately, the case of the Claimants is not based on a breach of the log pond or road access agreement, but rather about illegal logging operation inside Tahitarau which is contrary to the claim and evidence relied upon by the Claimants in obtaining the Second Order.
15. Second, the logging operations inside Gatogauwaria never entered Tahitarau at all. I have noted the map annexed as “RH-1” in Rodney Haga’s sworn statement that these two lands did not have a common or shared boundary. In fact, they are separated by Hasio and Tarahane. In reality, the Claimants have to jump over Hasio and Tarahane land before they could reach Gatogauwaria. Hence, the issue of trespass has not been established in order to show there is a serious issue for trial.
16. Third, the Second Order only confined to Tahitarau and not Gatogauwaria. Therefore, it is incorrect for the Claimants to use it as a leverage to halt the logging operations of the Defendants inside the Gatogauwaria or even other concession areas that are physically and geographically far to each other. As the evidence showed, except for the road access and the log pond, there is no illegal logging operations by felling of trees inside Tahitarau in order the issuance and maintenance of the Second Order is necessary. Viewed in this context, it is my view that this will have a bearing on whether or not there is a serious issue to be tried or even whether there is a cause of action against the Defendants.
17. Fourth, the logs estopped from export by the Second Order are from Gatogauwaria and not Tahitarau. The Claimants did not provide any concrete evidence to show the logs were extracted from the Tahitarau. All I can say is that, this is a pure disturbance of a logging operation case initiated by the Claimants, as busybodies, against the lawful logging operations of the Defendants.
18. Fifth, at the time the Second Order was obtained, the Claimants deliberately withheld and concealed the First Order in HCSI CC 94 of 2024 from the Court. By timeline, the First Order was issued on 11^th March 2024 and the Claimants made the application for the Second Order on 26^th March 2024. This was only fifteen days apart after the First Order was issued. However, at the time of making the application for the Second Order, the Claimants never disclosed that First Order which is contemptuous. In an interlocutory hearing, the Claimants as the Applicants have a legal duty of disclosure. That is, they must disclose to the Court all information operating for and against them before a decision on whether to grant the interlocutory order can be made. Many precedents resounded that position in this jurisdiction. For example, in Uiga v Habo [1998] SBHC 114, Kabui J, when referring to Australian Civil Procedure C by Bernard Cairns, Third Edition, 1992, made the following statements about the need to make frank disclosure during an interlocutory application at [2]:
    • “In all applications for ex parte injunctions, the applicant must make a full disclosure of all relevant facts to the court. This means disclosure of the facts that are unfavourable to the applicant as well as of those that support the application. All the facts which are material to the application must be brought to the attention of the court.”
19. The failure to do so by deliberately withholding the information can be amounted to misleading of the Court, which is a ground to discharge the order as stated by the same Court at [2]:
    • “Facts must not be withheld, nor may the court be in any way misled, either in what is said in support of the application or as to what is left unsaid.
    • The consequences of a misleading application are serious. Normally the court dissolves the injunction on the day fixed for the further hearing, or the return date as it is often called, if it becomes obvious that because of a failure to disclose material facts the applicant was given an injunction to which that applicant was not entitled...”
20. In this case, the Claimants failed terribly to disclose that First Order as required of them by the law which is contemptuous and a ground to discharge the Second Order.
21. Finally, it would appear that the Claimants’ claim in reality should be a cross-claim against the Defendants. Therefore, it could be convenient in case management if that can be raised or litigated in HCSI CC 94 of 2024 because it involves the same parties, the same dispute over the same logging operation. By filing this separate claim, it has the potential to duplicate the proceedings tantamount to an abuse of the Court’s which is a ground for dismissal of the proceeding.
22. Based on the above reasons, the question of whether the Second Order should be varied or set aside is answered in the affirmative. Consequently, the application must be granted. Considering that this proceeding has no cause of action and is amounting to an abuse of the Court’s process, it is my view, that the entire proceeding must be dismissed by the Court’s own motion pursuant to Rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. As a result, the Second Order must be entirely set aside.
23. Cost of this proceeding is to be paid by the Claimants to all the Defendants on standard basis, to be taxed if not agreed.

Orders of the Court

1. This proceeding is hereby dismissed by the Court’s own motion pursuant to Rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 on the grounds of disclosure of no cause of action and an abuse of the Court’s process.
2. In consequence hereof, the Interim Orders issued in this proceeding on 26^th March 2024 is entirely set aside.
3. The Claimants to pay cost of this proceeding to all the Defendants on standard basis, to be taxed if not agreed.
4. Right of appeal applies.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court