Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Mega Corporation Ltd v Kile; Zarihana Timbers v Kile [1997] SBCA 4; CA-CAC 1 and 2 of 1997 (24 April 1997)

THE COURT OF APPEAL OF SOLOMON ISLANDS

.................................................................................

IN THE SOLOMON ISLANDS COURT OF APPEAL
Appeal No.1 of 1996
(On Appeal from Civil Case No. 229/96)

BETWEEN:

MEGA CORPORATION LIMITED
Appellant/First Defendant

AND:

NELSON KILE
(representing Bahai Tribe)
Respondent/Plaintiff

.............................................................................

Appeal No.2 of 1997
(on Appeal from Civil Case No. 229/96)

BETWEEN:

ZARIHANA TIMBERS
(A FIRM)
Appellant/Second Defendant

AND:

NELSON KILE.
(representing Bahai Tribe)
Respondent/plaintiff

Kapi P (Ag), Williams JA, Goldsbrough JA

Date and Place of hearing: 24 April 1997
Date of delivery of Judgment: 24 April 1997

JUDGEMENT OF THE COURT

This appeal is against an interlocutory order granted by the High Court (Muria CJ) restraining the first and second appellants from felling, removing and selling (subject to an exception in respect of logs already felled) timber from disputed land known as Sareai land.

The scheme for the logging of timber on customary land is more than adequately set out in the judgment of this court in Alladyce Lumber Company Limited and Dovele Development Company Limited v. Nelson Anjo - Civil Appeal No 8/96 and consequently there is no need to repeat it here.

Similarly that case sets out the principles to be applied with regard to interlocutory orders. We see no need either to restate those principles or add to them. At the date of the order appealed the judgment had not been handed down and consequently was not available to the learned Chief Justice, although it is not in issue that he applied the appropriate principles as illustrated in Al1adyce v. Anjo.

The logging operation in question, operated by the first and second appellants on Sareai land began towards the end of June 1996 following the issue of a licence under s.5 of the Forest and Timber Ordinance (Cap 90) and the entering into by the first and second appellants of a “Technology and Management Agreement.”

Not long thereafter, on 21 August 1996 a consent order was made by the High Court with regard to the operation, the effect of which was to allow logging to continue. This order was discharged on 7 November 1996.

The specially endorsed writ commencing these proceedings alleges fraud in relation to the grant of the timber licence. By implication it questions ownership of the land known as Sareai land. At the time of the consent order a land dispute had been reported in accordance with the provisions of the Local Court (Amendment) Act 1985, which dispute had been the subject of a determination by the Chiefs by the time the application to discharge the consent order was made. The determination of the chiefs did not favour the present respondent and thus it was said that his position had been weakened. Final determination of the land dispute is awaited.

The history of the logging operation is significant in that it illustrates that the main question concerning the present respondent is not with the first appellant but with the second. This must be so by virtue of the respondent’s consent to the order of 21 August 1996, the effect of which was to allow the logging operation to continue. The question of ownership of the Sareai land will not be determined in this action, in which only the property of the issue of the felling licence is questioned. The two issues, though, cannot be entirely separated.

It is clear from the parties that there is a triable issue at least as between the respondent and the second appellant and thereafter with the first appellant. It is equally clear that the learned Chief Justice considered the balance of convenience. Although pleaded, we are informed by counsel for the first appellant that the respondent did not rely on the legality of the issue of the felling licence at the hearing but on the question of ownership. It was this aspect which the learned Chief Justice had to consider and this is reflected on page 3 at paragraph 3 of his judgment.

Had the respondent relied upon his argument of legality as pleaded, the appellants would have been afforded the opportunity to counter this. However that was not the case and the learned Chief Justice was asked to decide the issue on the basis of the disputed land ownership, evidence of which, from the respondent, amounted to nothing more than assertion.

In these circumstances the court is of the view that the learned Chief Justice erred in finding that the balance of convenience weighed in favour of the respondent. The respondent’s case was not such that it warranted the order as made.

We also note that no undertaking was required of the present respondent. This situation was referred to in Alladyce v. Anjo and all that this court wishes to say in this regard is that whilst in many instances it may not be appropriate to require an undertaking from a successful litigant the question should be decided on in each individual case. There is no principle or law that an undertaking should not and cannot be required in cases involving a dispute to natural resources concerning a Solomon Islander.

This appeal is allowed and taking into account counsel for the respondent’s concession with regard to costs of the appeal, the court makes the following orders:

(1) The appellant pay into an interest bearing deposit account in the joint names of all the solicitors of all the parties 10% of fob price each shipment net of duties and levies payable to Solomon Islands Government such deposits to be made within 14 days of the receipt by the appellants of those proceeds.

(2) That on 14 July, October, January, April the appellants lodge with the Registrar of the Court a report containing

(a) details of each shipment during the previous quarter including with respect to each shipment

(i) ) total value of timber

(ii) volume of timber per species

(iii) sale price of timber per volume and species

(iv) Destination.

(b) details of quantity of timber milled locally for disposal in the local market including

(i) volume of each species

(ii) price.

Such order is conditional upon the respondent prosecuting this action and all associated proceedings relating to ownership of subject land with all due deligence.

(3) Liberty to apply with 7 days notice to the other party.

By The Court

Kapi (Ag) P
(Acting President)