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Attorney-General v JP Enterprises Ltd [2006] SBHC 14; HCSI-CC 193 of 2006 (2 June 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 193 of 2006

ATTORNEY-GENERAL

–v-

JP ENTERPRISES LIMITED

High Court of Solomon Islands
(Brown, P.J)

Date of Hearing: 2nd June 2006

Date of Ruling: 2nd June 2006

Mr Nathan Moshinsky, QC and Rawcliff Ziza for the Plaintiff

RULING

REASONS and ORDERS
Application for interim injunction pending suit

The Attorney-General by Mr. Moshinsky QC, seeks to restrain the defendant J.P. Enterprises Ltd from logging operations on particular lands in the Marovo area of New Georgia known as Lio, Podokana, Buti and Choe. The Attorney-General has in the Statement of Claim shown that the issue is whether in fact a timber rights hearing was held as required by the Forestry Act before a licence to log was issued by the Commissioner of Forests. The Commissioner says that no timber rights hearing was held and Mr. Moshinsky points to material deposing to this fact in the affidavits he has read in support. Those affidavits are by those Chiefs and spokes persons of various tribes laying claims to the customary land. It is not in issue that a licence to log has been given by the Commissioner of Forests but that licence it is now argued related to others customary land and the defendant is logging land for which no lawful licence has issued. For while the felling licence named Lio, Pokokana and Nono customary land there had in fact been no compliance with the Act leading to the grant of the licence and consequently the Form 2 was not a proper certificate in terms of S.8 of the Forestry Act.

Having heard Mr. Moshinsky I am satisfied that an interim order restraining the defendant company from further work in the named land areas is appropriate. The Attorney-General is the proper authority to seek orders of this court where the Forestry Act provisions have apparently been breached.

On the material I am satisfied the Act has prima facie not been followed in that no timber rights hearings were conducted before the issue of a logging license although the assertion that this occurred gave rise to the grant of the license. The truth or otherwise of the assertion will be the issue in the trial. The continuing risk of damage to the forest outweighs for a time the right under the suspect licence to fell in Podokana, Lio, Buti and Choe land especially when the apparent right to log has, on the material read, been obtained by mistake at the very least.

There is no reason why the delay should irrevocably affect the defendant company to its detriment if it can be shown that its licences were validly and lawfully obtained. For it may resume logging later.

But if I do not stop logging now, the obligation of the Commissioner to protect landowners in accordance with the Forest Act and prevent unlawfully felling will be affected irrevocably so that the balance of convenience is with the Commissioner of Forest.

I make the orders sought in terms of the document signed by me this day.

Mr Silas Milikanda of the defendant company is in court unrepresented and I asked him to listen.

He has not been given an opportunity to oppose the making of there orders for the summons comes by way of statement of claim seeking an interim injunction and properly should be considered ex parte in accordance with the rules for the material on which the Commission of Forests relies is such that urgency is apparent. I dispense with strict compliance with the rules to enable the application to be heard today.

I direct service of the summons, material in support and a copy of the interim injunctive order and further direct that the interim injunction and summons seeking interlocutory relief filled in terms of the undertaking be made returnable on Wednesday 21 June at 1:30 pm.

Costs of the application costs will be costs of the cause.

Plan 'R H 11' forms part of interim orders.

THE COURT