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Shell Company (Pacific Islands) Ltd v Korean Enterprises Ltd [2001] SBHC 107; HC-CC 323 of 1999 (24 April 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number: 323 of 1999

SHELL COMPANY (PACIFIC ISLANDS) LIMITED

-V-

KOREAN ENTERPRISES LIMITED AND ANOTHER

High Court of Solomon Islands
(Palmer J.)

Hearing: 24th April 2001
Judgement: 24th April 2001

Sol-Law for the Applicant/Plaintiff
Radclyffe for the First Respondent/First Defendant

PALMER J.: The Applicant has had access to the fuel pipeline traversing the First and Second Respondents lands and the inspection hatch and non-return valve on the First Respondents land since the construction of the pipeline in 1962. Since 1999, when the First Respondent acquired a leasehold estate over its land, it has made its intentions clear to the Applicant that it wanted its fuel pipeline removed from its land. The question of the rights of the parties regarding that pipeline and inspection hatch and non-return valve are the substantive issue in this case of which judgment is yet to be delivered. In the meantime, a fence had been constructed over its land by the First Respondent, which according to the Applicant gives the appearance of pre-empting the Court’s ultimate judgment in this case. The construction of the fence appears to block off access to the pipeline and the inspection hatch and non-return valve. Also the Applicant contends the hatch and non-return valve have been covered over by the First Respondent and thus jeopardizing the supply of fuel to the country in the process; a fuel tanker expected in the not too distant future. Hence the urgency of the application. The Applicant relies on the affidavit in support of Dennis McGuire filed 24th April 2001. The Applicant seeks three orders from this Court:

1. removal of all rubble and material covering the hatch and non-return valve;
   
2. construction of a gate to allow access to the pipeline and accessories;
   
3. a restraining order to prevent further blockage and obstruction of the hatch and non-return valve.
   

In the hearing this morning, Mr Kim Durk Kee, Managing Director of the First Respondent gave oral evidence explaining the reasons for erecting a fence on its boundaries. I do not think for one moment there has been any direct intention to pre-empt this Court’s judgment; the Applicant has not suggested so. The main reason and a justifiable one, in the circumstances had been the security of his premises. It has been quite obvious that prior to the construction of the fence passers-by had been taking advantage of the man made pit over the hatch and non return valve to relieve themselves. This has been one of the complaints put forward by the Applicant. The erection of the fence therefore to certain extent perhaps can be seen as a blessing in disguise. Trespassers would now be controlled and perhaps the safety and security of the hatch enhanced.

In his oral evidence before this Court, Mr Kim has agreed to remove the rubble over the hatch and non-return valve. I grant the order sought for that and also direct that the First Respondent must keep the hatch clear at all times of any rubble and material.

On the question of construction of a gate to allow access, I am not satisfied that is necessary. The issue is access. That as stated by Mr Kim and learned Counsel Radclyffe is secured through another gate at Mendana Avenue. I direct that a key is to be supplied to the Applicant for the sole purpose of accessing its pipeline and accessories. This is to ensure that the Applicant can have access to its pipeline at any time outside of working hours and when the security guard might not be available. Access is ordered on a 24 hour basis and 7 days a week. I would expect a lot of common sense to be applied in the implementation of this.

I have considered the case Daniel v. Ferguson [1891] 2 Ch. Division 27, relied on by the Applicant, but the circumstances warranting the removal of the wall in that case are not on all fours with this case. Hence I do not find it necessary to take the same approach here. I note the Applicant has given the usual undertaking for damages in the event the First Respondent wins its case at the end of the day.

ORDERS OF THE COURT:

1. Order that all rubble and material around and covering the inspection hatch and non-return valve to be removed and kept clear at all times, such clearance to be sufficient to permit the Plaintiff and its servants or agents safe access to the said hatch and non-return valve for the purpose of inspection, repair and maintenance.
   
2. Order that access be granted at any time deemed necessary by the Plaintiff, its servants or agents, to the pipeline and the inspection hatch and non-return valve for purposes of inspection, maintenance and repair; a key to be provided and to be used only in the event the First Respondent, his servants or agents may not be available at any time to facilitate access.
   
3. The First Respondent, his servants, agents or invitees are hereby restrained until judgement or further order from covering up or hindering in any way the Plaintiff’s access to the said hatch and valve for the purpose of such inspection, maintenance and repair or the Plaintiff’s ability to traverse the right of way over the pipeline.
   
4. A penal notice to be attached.
   
5. Costs in the cause.
   

THE COURT.