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Success Company Ltd v Takolu Timber Ltd [2009] SBHC 19; HCSI-CC 80 of 2009 (5 May 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 80 of 2009

BETWEEN:

SUCCESS COMPANY LTD
Claimants

AND:

TAKOLU TIMBER LIMITED
1st Defendant

AND:

RIMA LIMITED
2nd Defendant,

AND:

PREMIER OF GUADALCANAL PROVINCE
(Representing the Guadalcanal Provincial Executive)
3rd Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
4th Defendant

Date of Ruling: 5 May 2009

For Claimants: Mr. M. Tagini
For 1st Defendant: Mr. A. Nori
For 2nd Defendant: Mr. P. Tegavota
For 3rd & 4th Defendants: Mr. D. Damilea

RULING

Naqiolevu J;

This is an application by Counsel for the Defendants for the Court to set-aside the ex parte order granted by the Court on the 16th of March 2009, restraining his clients among other things from entering and felling commercial trees, and carrying out any logging activity within the Claimants and the First Defendants concession area.

The Defendants claim that the Claimants in the process of obtaining the ex parte injunction failed to disclose certain materials relevant to the matter.

This failure goes towards the case and should result in the discharge of the injunction.

The court having carefully considered the application by counsel for the defendant and the submission both oral and the written submission tendered at the hearing. In particular that this court set aside the ex parte order granting the interim injunction against his client for breach of the rule of disclosure of relevant materials between the parties.

The court having further considered the submission by counsel for the Claimant and the further submission in writing in response, in particular the question of disclosure was addressed at the subsequent inter parte hearing.

The court is of the view that the submission canvassed have been dealt with by His Lordship Mwanesalua J when he heard the application at the inter-party hearing on the 27th of March 2009. His Lordship after hearing submission found there were triable issues that need to be dealt with by the court.

His Lordship in further refusing the application by the defence counsel to vary the ex parte order granted to the Claimant made a finding that the triable issue relate to the agreement between the plaintiff and the landowners and the issue of the Licence over the customary land, in particular the validity of Form 4 under the legislation.

It seems to me that the court at the time was clearly aware and dealt with the issue relating to disclosure at the material time, and made the subsequent finding accordingly.

This court is of the view there are serious triable issues that must be determined by the court and hereby refuse the application by counsel to set aside the ex parte order granted by the court on the 16th March 2009. The court in the circumstances order the defendants to file their defence with 14 days hereof, and the matter proceed to a speedy trial.

The Registrar is ordered to assign a date for a speedy trial, as soon as convenient to all parties.

ORDER:

1. Application to set aside or dissolve the injunction granted by the court on the 16th of March 2009 is hereby refused.

2. The Defendants are ordered to file their defence within 14 days hereof.

3. The Registrar to fix a hearing date for a speedy trial at a date convenient to the parties.

THE COURT