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Glengrow (SI) Company Ltd v Kera [2009] SBHC 26; HCSI-CC 208 of 2009 (24 July 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 208 of 2009

BETWEEN:

GLENGROW (SI) COMPANY LIMITED
1st Claimant

AND:

EDDIE KERA (Carrying business as Ruruma Development Company)
1st Defendant

AND:

MEGA ENTERPRISES LIMITED
2nd Defendant

Mwanesalua J

Date of Hearing: 21 July 2009
Date of Ruling: 24 July 2009

M Pitakaka for the Claimant
J Apaniai for the First Defendant
J Sullivan QC and Kingmele for the 2nd Defendant

RULING

Mwanesalua J:

1 This is an application by the Second Defendant to set aside the ex parte Order of 3 July 2009, or alternatively, to vary paragraphs 1 and 2 thereof.

2 The Premier of Ysabel Province is the owner of a Perpetual Estate in Parcel No. 071-001-17. On 9 August 2007, he signed the logging agreement with the Claimant covering Parcel No. 071-001-17 or Lots 18 and Lot 17. On 15 August 2007, he granted profit over Parcel No. 071-001-17 to the claimant. And on the 15th of November 2007, the Commissioner of Forests issued Felling Licence No. A10767 to the claimant over Parcel No. 071-001-17 and 18 of LR 516.

3 The Commissioner of Forest issued the First Defendant with Felling Licence No. A10247 covering Lots 4, 5 (8) and (13 (16) of LR 516. The claimant complained to Commissioner of Forest that the Second Defendant has logged its concession of Lot 17 of LR 516. An assessment report made by Forestry Officers following that complaint established that the Second Defendant has logged in Lot 17 outside its concession. It was further established that the First and Second Defendants’ access roads are constructed in Lot 17.

4 Trespass and conversion are matters to be considered at trial. Filing of a claim is a matter for the claimant. There is no evidence that the defendants were prejudiced by non disclosure of the previous proceedings relating to this case. Paragraph 6 of the ex parte order of 3 July 2009 requires the Applicant to file and serve its claim within 21 days. The Claimant has not filed any claim within this period. The second defendant says that the ex parte order should be set aside for such failure. The way to deal with such failure is provided under rule 17.43 of the Solomon Islands Courts (Civil Procedure) Rules 2007.

5 There are serious issues regarding trespass and conversion to be tried. The Court will not set aside the ex parte order granted to the Claimant. It will, however, allow variation of paragraphs 1 and 2 thereof to reflect the variations sought in the application by the Second Defendant. Costs of this application be costs in the cause. Order accordingly.

F Mwanesalua J
THE COURT