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Linear Perspective Ltd v Attorney General [2009] SBHC 43; HCSI-CC 157 of 2009 (26 June 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 157 OF 2009

BETWEEN:

LINEAR PROSPECTIVE LIMITED
Claimant

AND:

ATTORNEY GENERAL (Representing Commissioner of Forests)
1st Defendant

AND:

PATUDOKA LANDOWNERS ASSOCIATION
2nd Defendant

AND:

PACIFIC METRO LIMITED
3rd Defendant

(MWANESALUA J)

HEARING: 29 May 2009
RULING: 26 June 2009

D Tigulu for the claimant
J Muria for the 1st Defendant
J Apaniai for the 2nd and 3rd Defendant

RULING

Mwanesalua J: Ex parte Order. This is the inter partes hearing on the ex parte order of 14 May 2009 granted to the claimant against the Second and the Third Defendants on 14 May 2009. That order restrained the Defendants "(i) from felling, removing and selling any logs from Patulavata Concession area, and their log pond and access road in Choiseul Province until the determination of the claimant’s claim in this action challenging the validity of the Second Defendant’s felling licence; and (ii) that the First and Second Defendants shall pay all proceeds of the 3,000 cubic metres of logs into an interest bearing account in the joint names of the Solicitors for the parties herein in any commercial bank until trial of this action or further orders,"

Issue. The issue to be determined by the court at this stage of the proceedings is whether to maintain the ex parte order until the trial of the claim or to discharge it. The claimant submits that it should be maintained, whilst the Defendants urge the court to discharge it.

Background. On 10 February 2000, Fabiano Alurolomo, Martin Pirivolomo, Rinisi Sababatu, Gordon Vanakana and Roger Tapidaka registered their names under the Registration of Business Names Act 1971 to carry on business under the business name of Patudoka Association. On 3 November 2001, the Commissioner of Forests approved Patudoka Association’s Form 1 application to negotiate for timber rights on Patulavata and Todoka customary lands on Choiseul Island. On 6 to 7 of March 2003, the Choiseul Provincial Executive ("the Executive") held a public hearing to determine the persons in Patulavata tribe who were lawfully able and entitled to grant the timber rights on Patulavata land to Patudoka Association. On 11 March 2003, the executive published its determination in Form 2. On 8 May 2003, the CLAC (w) issued a certificate of no appeal. On 20 June 2003, the business name Patudoka Association was cancelled, and was changed to Patulavata Development Association. Fabiano Aluvolomo, Martin Pirivolomo, Renisi Sababatu and Collin Rugebatu were to carry on business under that business name.

On 12 May 2003, the claimant signed a Standard Logging Agreement with the Patulavata landowners. Then on 1 December 2003, it obtained felling licence No. A10139 to fell and remove timber from Patulavata land. And it became incorporated as a company on 24 September 2003. On 7 November 2007, it executed a logging and marketing agreement with Metro Pacific Limited to log Patulavata land for it. It made a log pond agreement with the chiefs and trustees of Nanaviru land on 7 March 2008, and, on the next day 8 March 2008, made an Access Road Agreement with the chiefs and Trustees of Penebito, Korasana, Kove and Todoka customary lands, But its Felling licence expired on 1 December 2008.

The Commissioner of Forests approved Patudoka Association’s Form 1 application to negotiate timber rights on Patulavata and Todoka lands on 3 November 2001. The executive convened a public hearing to determine the persons lawfully able and entitle to grant timber rights on Patulavata land on 6 and 7 of March 2003. The Executive published its Form 2 determination on 11 March 2007. The Certificate of No Appeal was issued by the CLAC (w) on 8 May 2008. On 12 January 2009, Martin Pirivolomo and Collin Rugebatu registered Patudoka Association to carry on business under this business name. Patudoka Association then signed the Timber Rights Agreement with the owners of Patulavata Land on the_same day, 12 January 2009. On 16 March 2009, the Commissioner of Forests issued Felling License No. A10913 to Patudoka Association to log Patulavata land.

Triable Issues. There are triable issues regarding the validity of claimant’s standard Logging Agreement and Felling Licence. The agreement and Licence were signed and issued prior to its incorporation as a company. On the other hand, there are also issues regarding the validity of the timber process on the part of the second Defendant. The Form 1 application was approval on 3 November 2001 but the Executive merely held its public hearing to determine the persons lawfully able and entitled to grant timber rights on Patulavata land on 6 and 7 March 2003.

Balance of Convencence. The triable issues described above favour the maintenance of the ex parte order to maintain the status quo until the claim and the triable issues are heard and decided. Order accordingly.

THE COURT