HIGH COURT OF SOLOMON ISLANDSLANDS
Civil Case No. 143 of 1999
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JULIAN NGELEMENGE & amp; OTRS
v
ATTORNEY-GENERAL & OTRS
High Court Of Solomon Islands
(Palmer J)
Civil Case No. 143 of 1999
Hearing: 11 May 1999
Ruling: 12 May 1999n>
A.. Nori For The Plaintiffs
G. Samuels ForFirst Respondent
J J. Apaniai For The Second Respondent
A.. Radclyffe For The Third Respondent
PALMER J.:
The Plaintiffs obtained leave on 28th April 1999, to commence
inter alia, action for certiorari to quash the decision of the Commissioner
of Forests which
had granted an extension to the licence of the Second
Respondent (Licence Number TIM 2/77) into Nunughu Land. The
Plaintiffs claim the extension was unlawful as it contravened the provisions
of the Forest Resources
and Timber Utilisation Act, 1990 (�the Act�).
They claim rights of ownership over the said Nunughu Land.
Other orders obtained included an order to restrain and pay into an interest
bearing deposit account all proceeds
of the logs felled and removed and
exported from that land area. This is now the subject of the summons filed
on 5th March 1999 by the Third Respondent and which is the
subject in this ruling.
The Third Respondent, Dalgro (SI) Limited was the contractor engaged by the
Second Respondent inter alia, to extract and
transport logs to the log pond
for export (see affidavit of Keith Douglas filed
5th
March 1999).
At paragraphs 2 and 3 of the said affidavit, it was agreed the Third
Respondent would be paid the sum of USD60-00 per
cubic metre for its
services. The rate however has been reduced by consent to USD56-00 per cubic
metre (see annexure �B�). It claims the said amount be released for
its services rendered according to the terms of that agreement.
The Third Respondent also claims refund of the sum of SBD45,000-00 for money
advanced to the Second Respondent for the
hire of a barge and tug boat from
Silvania Products (S.I.) Ltd and SBD4842-00 for the payment of stevedores
who loaded
the ship. These were expenses under the agreement to be borne by
the Second Respondent.
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Mr. Apaniai for the Second Respondent doe object the orders sought bght by
the Third Respondent as proper, and in accordance
with the terms of the
agreement entered into with the Third Respondent.
Mr. Nori forPlaintiffs objects the orders sought, essentially on the
he
grounds that the Third Respondent should not
be permitted to benefit from
what might turn out to be an illegal and criminal operation by both the
Second and Third
Respondents, apart from the claims of trespass which are
yet to be heard. He argues releasing the payments now would give the
appearance of validating such questionable operation at this stage and the
agreement between the two Respondents which
are yet to be determined. He
points out the Plaintiffs were never a party to that agreement and so are
not bound by its
terms.
Unfortunately, the grounds raised by learned Co for the Plaintiffs fail
il
to distinguish the difference between an
award for damages which may be
awarded by the court at the end of the day as opposed to the proceeds of the
logging operation
on the said land. These are not one and the same thing.
Whether the operation was illegal or criminal makes little difference
to the
fact that costs and expenses had been incurred. It is inevitable in my
respectful view these will have to be paid
in any event. These were
necessary expenses incurred in the said logging operation without which the
proceeds now restrained
would not have been possible. I consider it only
fair and just in the circumstances the expenses incurred be released. No
evidence has been adduced to suggest the rates charged and the expenses
claimed by the Third Respondent are unreasonable,
There is also no evidence to suggest at this stage that both Respondents
would not be in a position to pay any award of
damages that may be awarded
in favour of the Plaintiffs if they should win their case at the end of the
day.
I
tisfied the Order of the 28th April 1999 be vari varied to permit
payment to the Third Respondent of all monies due to it from the Second
Respondent
under the contract between them dated 14th December
1998 and the invoice dated 28th April 1999.
The Third Reent has also provided conflicting information at this stagestage
concerning representation of all twelve Plaintiffs
and whether all are
willing to continue with this action. Accordingly I consider it only proper
at this stage for learned
Counsel for the Plaintiffs to file within seven
days a notice indicating which Plaintiffs he represents to date.
Also an order will be included to have the Notice of Motion filed 29th
April 1999 adjourned sine die with liberty to restore.
ORDERS OF THE COURT:
1. &nsp; THE FOLL AMOUNTS BE RELEASELEASED AND PAID TO THE THIRD
RESPONDENT WITH IMMEDIATE EFFECT:
<
(a) <(a)
n/spa
USD203,180.43 being for sums due at the rate of USD56-00 per m3 X
3,628.22p>3
>
(b) &n
SBD45,000-00 plus SBD4842-00 being for advances made to the Second
Respondent for hire of barge and tug boat and cost
of stevedores.
2.   &nbssp;&nnbp; Nsp; NO AWARD FOR COSTS.span>
langGB" s"font-size: ize: 12.0pt; font-family: Times New Roman"oman">&nbs>
3. CLUNSE TFORPLAE TIFFN FILE FILE WITHIN SEVEN (7) DAYS A NOTICE TO
">
IN INDICATDICATE WHICH PLAINTIFFS HE REPRESENTS TO DATE.
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HE COURT.
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