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Rusa v Geruana Development Association [2006] SBHC 78; HCSI-CC 264 of 2006 (16 August 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 264 of 2006

DELFISHER RUSA AND HONA HEDI
(Representing themselves and members of Tenge Landholding Group)

-v-

GERUANA DEVELOPMENT ASSOCIATION, RICKY NAMUSU AND
PACIFIC CREST ENTERPRISES LIMITED

Date of Hearing: 16th August 2006
Date of Ruling: 16th August 2006

Mr. Dwene Tigulu for the Plaintiff
Mr. Charles Levo for the Defendants

RULING AND ORDERS in relation to application for injunctive relief in logging matter.

Brown, J: I refuse the summons for interlocutory relief. The balance of convenience is not with the plaintiff’s. The logs have been felled and exported. Clearly the defendants may be brought to account for the value of the logs if it should be shown that the logs belong to the plaintiffs. The purpose of the interlocutory order, to prevent the loss of the living resource cannot be effectuated by an injunctive order at this time. The logs have gone. The argument must relate to the right or otherwise in the defendants to work & construct a log pond and camp access roads and to fell timber for export. Since this has apparently happened and there is implied evidence of a logging licence, this court should be wary of granting an interlocutory injunction in these circumstances.

The plaintiff on its pleadings seeks to argue customary rights. These customary rights if they relate to matters other than matters to be determined under the FR&TU Act need be resolved by the tribal Chiefs and failing that, the Local Court. So if, for instance, the argument really relates to the distribution of moneys for logs felled, that is for the Chiefs. If it relates to ownership of the resource then the issue should have been the subject of an appeal following the timber rights hearing. Clearly there is an issue on the pleadings about the purported right in the 1st defendant to enter land including Tenge customary land. The issue then may not be one for this court but I make no determination at this time.

I refuse the plaintiffs interlocutory application for relief. That claim by summons of the 13 June shall stand over to be heard with the originating application. When I read the material filed to date by the 1st and 2nd defendant the issue that I have mentioned, early, the timbers rights issue, has clearly been raised.

I direct that upon the filing of a certificate of readiness, the proceedings the set down for trial limited to a 3 day hearing.

Notice to require deponents for cross-examination shall be filed and served 14 clear days before the date fixed.

A defence will be filed and served within 21 days failing which the affidavits of the 1st and 2nd defendants shall stand by way of defence.

When no defence document as such is filed within that time, the pleadings will be deemed to have closed.

Where a defence is filed, the plaintiff may file a reply within the time prescribed by the Rules.

No further affidavit material may be filed without the leave of the court after the expiration of 21 days.

Costs of today are reserved.

THE COURT