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Maina v CE Forestry Development Ltd [2012] SBHC 159; HCSI-CC 477 of 2011 (18 December 2012)

HIGH COURT OF SOLOMON ISLANDS
(Faukona J).

Civil Case No. 477 of 2011.

BETWEEN:

TITUS MAINA AND VICHAEL MAINA
Claimants

AND:

CE FORESTRY INVESTMENT LIMITED
1st Defendant

AND:

ASIA PACIFIC INVESTMENT DEVELOPMENT LIMITED
2nd Defendant

AND:

PAUL BUARE AND PELLION BUARE
3rd Defendant

Date of Hearing: 5th December, 2012.
Date of Ruling: 18th December, 2012.

Mr. W. Rano for the Claimants.
Mr. S. Tabu for the Defendants.

RULING.

Faukona J: An application for Court Contempt was filed on 21st June 2012, following allegations of non- compliance with the Ex-parte orders granted by this Court on 2nd December 2011. It would appear the allegations of breach premises on orders 1, 2 and 3.

2. For the benefit of this case it is ideal to paraphrase the three orders.

3. Order 1.

That the First and Second Respondents whether by themselves, their agents, servants or otherwise be restrained from entering Rorau customary land and from carrying on any further felling of trees and from constructing any access roads until further orders of this Court.

Order 2.

That all proceeds of logs currently prepared for export and/or any proceeds of export which are still pending distribution be restrained either at the Central Bank of Solomon Islands or paid into Court or alternatively paid into joint trust account in the names of the parties, until further orders.

Orders 3.

That the First Respondent provide by sworn statement records of all logs felled to date including their species, volume within 14 days.

4. On the outset, the orders were made specifically and directed to current 2nd and 3rd Defendants and not CE Forestry Investment Limited, the current 1st Defendant, who was not a party in the orders.

5. Order 1 by construction mean that the Respondents Defendants 2 and 3 (current), and their agents or servant be stopped from entering the land if they had entered before the order and persistently remain thereupon. In other words, the orders purportedly direct the Respondents/Defendants to remove themselves, their assets and equipment from the land where a legal dispute is current and ceased from carrying on further felling and further constructing access road.

Guideline Considerations for Court Contempt:

6. Where a party fails to comply with an order under Rule 23.1, the party who is entitled to the benefit may require non-compliance party to show cause why an order should not be made against him under Rule 23.2, and an order be made against him under rule 23.4.

7. From reading of rules 23.1 and 23.4 it seems that there are two considerations. One is a simple breach and another is deliberate and sustained failure. In any event, the consequent is the same. Any order made under rule 23.4 does not limited the powers of the Court to punish under rule 23.5.

8. In the case of Nathaniel Waena v Casper Maetoha and Others[1] Brown J made further guideline principles to be considered. On page one paragraph 5 he said;

"There are two matters for my consideration. The first is whether this man's conduct can be said to be contumelious or insolent and second whether it is such on the face of the order of 12 June (which had attached a notice warning breach will be contempt of Court punishable by imprisonment). Of course knowledge of the order is imperative before I can be satisfied that breach of any can be said to be in the face of the order".

9. From perception the case indeed set out significant guidelines and they can be summed up as this;

(a). No question the orders were made on 2nd December, 2012.

(b). That there is knowledge of the orders.

(c). There is wilful disobedience of the orders.

10. It is not disputed that the Ex-parte orders were made on 2nd December, 2011. Prior to the orders being made the Defendants' Counsel submits by agreeing that his client entered Lot 2, which at that time was not disputed until its presence brought about the dispute. This was confirmed in paragraph 7 of Pellion Buare's sworn statement of 20th August, 2012, and Ray Chu sworn statement filed on 20th August, 2012; but said after receiving the Court Orders they withdrew the operations. Counsel also agrees and accepts the sworn statement of Fred Rilalo filed on 21st August, 2012, which gives indicative boundary demarcated between Lot 1 and Lot 2 and the development activities that took place around the peg pala.

Whether the defendants aware of the order:

11. One of the essential criterions in considering application of this nature is a need to be shown that the Defendants have knowledge of the order. Knowledge of the order springs from the effective service that was done. In this case, there are two sworn statement to that effect.

12. From those sworn statements there is no doubt that Defendant 2 and one of 3rd Defendants were served with orders. There is no evidence that service was done on Defendant Paul Buare. However, in another development the current Defendants 1 and 2 are operating under the same registered office and has the same postal address. This rather state of confusion is cured by the sworn statement of Mr Ray Chu filed on 20th August, 2012, deposing that Defendants one and two are his Companies. And by effecting service on him at his company's office is valid service.

13. Having served two important characters of the logging operation there was no service of the orders done upon Mr Paul Buare. I put aside any speculation based on presumption that whilst important figures of the operation have been served, there is no excuse by Paul Buare that he would have knowledge of the service. That would be presumption. I must rule on the outset that the requirement of effective service be done to allow knowledge to be contumelious. This was not done on Paul Buare.

14. On the 3rd issue of wilful disobedience, it is apparent the Orders were effectively served on the same date they were granted. Excuses for not being aware of it immediately, but only after sworn statements were served cannot be accepted. This case and this application were filed on 21st June, 2012. Six months before filing of the case and applications is sufficient time to comply with the orders.

15. There is material evidence available which indicative of the Defendants persistence to remain on Lot 2, the disputed land. A temporary house was located above the peg pala. It would appear the labour line's position may subject to some confusion. This is because Mr Rilalo's sworn statement does not mention whether the labour line building was erected within Lot 2. Even maps he drew as plan A and B do not indicative of it.

16. In addition, sworn statement of Mamion further stated there were recent cutting of timbers at the side of the house and log pond of which photographs annex JMM/3 and JMM/5 were taken.

17. Apart from that there was evidence of sighting tow boat with its barge/flying top birthing at the landing site. Further evidence reveals that there was also heavy machinery parked along the access road and log pond. There was also a truck with fixed motion carrying container at a location within Lot 2.

18. Evidence from sworn statement by Titus Maina filed a 26th November, 2012, that the Defendants continue maintain living within the disputed land and had access to other areas. This is supported by the sworn statement of Mary Laore filed on 26th November, 2012. She also deposed that there was a new road construction on the land. Despite that evidence, others who visited the land as well did not mention construction of a new road.

19. Further evidence supporting continuous inhabitation of the land is deposed by Aloysiaus Pela in his sworn statement filed on 21/6/2012 and John Mamion in his sworn statement filed on 26th June 2012.The sworn statement of Pela witnessed felling of 100 logs, a clear evidence of activities carrying on. He also saw 200 logs lying at a spot up the hill. This witness made five trips to the land after the orders were granted. He stated there were also many skid roads created to haul logs.

20. In explanation, Counsel for the Defendants submits admitting that his clients entered into the disputed land. He affirms that the leaf house was sitting on peg mark pala. Simply mean the part of the building is within Lot 2 and part in Lot 1. The Defendants also accepted the sworn statement of Fred Rilalo of 1st August, 2012. Mr Rilalo was the Lands Officer who identified the boundary between Lot 1 and Lot 2, and also identified the area where the encroachment was done.

21. By sworn statement of Rey Chu who deposed that after receiving the orders informed the operation manage to separate logs from Lot 1 and Lot 2. And that logs from Lot 2 be properly scaled and recorded and abandoned.

22. On that basis their shipment per MV Sharrow Bay was not to its capacity because logs extracted from Lot 2 were not exported.

23. On the whole Mr Tabo's submission premise on the fact that after the Orders there was no new logging activities carried out, and the Defendants had attempted to comply with the orders. In my view that is a clear admission of the breach. By attempting to comply is not complying with the orders. The orders are very clear. If the Defendants had entered the land before the Orders they have to exist. And if persist to continue inhabit then in itself is a breach of orders. Activities like further carrying on of felling of logs and construction of new access roads are activities that weigh more on the scale.

24. Attempt to comply with the orders is simply an admission of failure to comply with the orders. Change of administrative arrangement to align with the orders by separating the logs is a realisation of failure, a mischief the orders intended to cure.

25. Apparently, the Orders are simple and clear allowing export of logs extracted from Lot 2. Any proceeds which are still pending be restrained at the Central Bank or paid into Court or into a joint trust account in the names of the parties. By ignoring logs from Lot 2 and abandoned is breach of the Orders.

26. Having said that I am satisfied on the evidence adduce by claimants beyond reasonable doubt that the Defendants did breach the Ex-parte Orders granted on 2nd December, 2011. Therefore, have to be punished for their actions. The orders do not mention a specific punishment to impose; neither a penal notice is attached to them. This is significant to avoid excuses of having no knowledge. Further the Directors of the 1st and 2nd Defendants are not mentioned by name except for one. I therefore found the Director of Defendant 1 and 2 Mr Rey Chu guilty together with Pellion Buare. I find Mr Paul Buare innocent on the ground of none service of the orders upon him.

27. The penalties impose here reflect the importance of Court orders which must be respected and complied with by corporate bodies, individuals, Solomon Islands citizens and overseas friends living in Solomon Islands. Any violation of any Court order is a serious offence which the Courts cannot tolerate. The Courts are prepared to impose severe penalty for any such violation.

Orders.

1. Ex-parte orders granted on 2/2/2011 to continue to have effect.

2. Mr Ray Chu and Mr Pellion Burae are ordered to pay fine of $5000 each. Pay within seven days in default three months imprisonment.

3

4. Mr Pellion Buare is innocent of the contempt.

That the operating bank account of the First and Second Defendants or their directors be frozen until further orders.

4. Cost on indemnity basis.

The Court:

^[1] (2001) HCSI.CC No. 55 of 2001.