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Gasa v Bako [2004] SBHC 43; HC-CC 191 of 2004 (19 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 191 of 2004.

GABRIEL GASA AND EASTERN DEVELOPMENT ENTERPRISES LIMITED

–v-

NICHOLAS BAKO, FRED SULATO,CLEMENT LINTON, ALFRED KAVALI, STANLEY ZAE, P. KALABASA, MALAKAI, DASY RIO,AUGUSTINE PIZU, CHRISTOPHER BAKO, SIMON LAMATA AND GEORGE BAKO

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 19^th May, 2004.
Date of Ruling: 19^th May, 2004.

J. Katahanas for the Plaintiff.
No appearance for the Defendants.

RULING

Kabui, J. This is a Motion described by Counsel as ex parte in nature filed by the Plaintiffs seeking the following orders-

1. The time for hearing this Motion be abridged.
   
2. Upon the Second Plaintiff giving the usual undertaking as to damages, and until further order-
   
   • (a) The Defendants, their servants, agents, relatives and wantoks forthwith vacate and do not return to the Second Plaintiff’s logging camp situated at Zazao, Santa Ysabel while the Second Plaintiff is undertaking logging operations from that camp;
     
   • (b) The Defendants, their servants, agents, relatives, and wantoks do not in any manner whatsoever interfere with the Plaintiffs’ logging operations the subject of the Timber Licence Tim 2/101.
     
3. The Provincial Police Commander and the RAMSI Police Commander at Santa Ysabel and all Police Officers under their respective direction immediately upon receipt of any order made pursuant to paragraph 2 hereof attend and enforce the said order using such force as is reasonably necessary for such purpose.
   
4. A Penal Notice attach to any order made pursuant to order 2 hereof.
   
5. Until further order, any royalties payable in future pursuant to the Timber Rights Agreement being part of Exhibit “LSI” to the affidavit of Lau Seng filed today be paid into Court to abide the decision of the Court;
   
6. The Plaintiffs shall cause details of this order to be broadcast by service message in Pidjin and English twice on Solomon Islands Broadcasting Corporation as reasonably practicable;
   
7. Any service message shall include a statement to the effect that copies of all court documents filed in this matter thus far( including this order) may be obtained by the Defendants upon request made to the office of the Plaintiffs’ solicitor;
   
8. The Plaintiffs shall take reasonable steps to cause the Writ, Notice of Motion, supporting affidavits, and this order to be served on the Defendants;
   
9. The Motion is adjourned to 1 June, 2004.
   
10. The parties have liberty to apply to the Court for further orders or directions on the giving of three days’ notice to the other;
    
11. The costs of and in connection with today’s hearing be reserved.
    
12. Such further or other order as to the Honourable Court shall seem fit.
    

The matter was said to be urgent as a log ship was arriving shortly to pick up logs and carry them to overseas market. The loading of those logs was being stopped or under the threat of being stopped unless the 1^st Plaintiff paid $400,000.00 to the 1^st Defendant and his supporters that threat being the result of an internal dispute between the same parties to the timber rights acquisition process other than the 2^nd Plaintiff.

Brief background.

The 2^nd Plaintiff is the licence holder for a timber concession covering Zazao land in LR 703 and 704 in the Santa Ysabel Province. The area lies between Heple river and Kumaibusi river in the Hograno district. The Form 2 had been completed. The 1^st Plaintiff and the 1^st Defendant do appear by their names in this Form as amongst the persons entitled to grant timber rights to the 2^nd Plaintiff. Stanley Zae’s name as the 5^th Defendant also appears in Form 2. The names of the 1^st Plaintiff, the 1^st Defendant and Stanley Zae as the 5^th Defendant also appear in Form 3, confirming the same in the Timber Rights Agreement signed between the 2^nd Plaintiff and the representatives of the two landholding groups in the concession area on 10^th July 1997. A Supplementary Agreement had also been signed on the same date between the same parties. In 1999, the 1^st and 5^th Defendants with others did stop the operation being undertaken by the 2^nd Plaintiff, resulting in Civil Case No. 350 of 1999 being filed in the High Court but the dispute was later settled out of Court. The terms of that settlement were set out in an undated Deed of Settlement signed between the parties. The 1^st and 5^th Defendants were parties to that Deed of Settlement. On 17^th May 2004, the 1^st Defendant and others entered the 2^nd Plaintiff’s logging camp whereupon the 1^st Defendant demanded that the 1^st Plaintiff pay to him $400,000.00, in default of which no logs other than those belonging to the 1^st Plaintiff’s tribe would be loaded on to the ship that was due to arrive soon to take the logs. Attempts by the 1^st Plaintiff to reach a settlement amicably with the 1^st Defendant had so far failed as the 1^st Defendant has resisted all proposed solutions.

The Relief sought.

The dispute is an internal one between members of the landholding groups themselves. It does not concern the 2^nd Plaintiff as it is not a party to the dispute. But it does concern it in another way. The 2^nd Plaintiff will lose money if the logs are not loaded on to the log ship that has come to pick up the logs for sale overseas. This is why there is the second Plaintiff in this action. The loss of money to the 2^nd Plaintiff would be demurrage at the rate of $US3,000.00 per day plus dead freight at the rate of $US45.00 per cubic metre loaded under 2,200 cubic metres (+/-10%). This loss will obviously affect the level of royalty available to the landholding groups in terms of lessening the amount. So the landowners must be careful in terms of avoiding such unnecessary losses of this nature. They will be the losers in the end with less royalty in their hands.

The most telling error on the part of the 1^st, 5^th Defendants and other Defendants is that they have breached clauses 2, 12 and 13 of the Deed. Clause 2 states-

“...The Releasees hereby declare represent warrant undertake and assure the Releasor that upon execution of the Deed they by themselves, their tribal members servants or agents shall refrain from stopping objecting interfering with or obstructing the logging activities to be carried out by the Releasor or its servants or from causing organizing or instigating any act that would affect the Releasor...”

Clause 12 states-

“...The Releasees declare represent warrant undertake and assure the Releasor that they by themselves, their relatives, their tribal members, servants or agents shall henceforth refrain from instituting or causing any suit with object of restraining or interfering with the Releasor’s logging activities within the said Zazao land.

Clause 13 states-

“...Any of the Parties hereto may plead this Deed as a bar or estopped in any suit instituted by the other...”

As I have said above, the 1^st and 5^th Defendants were parties with others to the Deed of Release. The action taken by the 1^st and 5^th Defendants with the other Defendants is a breach of negative undertakings they themselves made with the 2^nd Plaintiff. Applying the principle of granting an injunction restraining further breach of a negative undertaking as discussed and applied in Arosi Vision Link Services and Another v. George Mae and Suhidangi, Civil Case No. 171 of 2003, I granted the orders sought on the rising of the Court this morning. The 1^st and 5^th Defendants in particular must realize that when they make agreements they must abide by them, especially commercial agreements such as this. I have noticed that there is a note on Form 3 showing that Stanley Zae had disagreed over some of the trustees as far back as 20^th February, 1996 and yet his name did appear on Form 3 dated 23^rd February, 1996 and he did sign the Timber Rights Agreement on 10^th July, 1997. He cannot now resile on that understanding and commitment. Not only that but he was also a party to the Deed of Release cited above. He is expected by the law to honour this undertaking all the same. The same can be said of the 1^st Defendant also. One commentator has said that the only place where people agree today and change their mind the next day is Melanesia. That perception of us has to be removed in order to attract foreign investment into the country. When investors put in their money on the basis of commercial agreements and undertakings, the Solomon Islands partners must abide by the terms of the agreements they sign and the undertakings they make. If changes are necessary, bring them about by mutual consent rather that tearing the whole thing apart because one has had a second thought or anything of that sort.

F.O. Kabui
Puisne Judge