In his opening paragraph, Mr. Szetu sought permission to allow him to respond to my article published in your Issue No. 5393 on 3rd January 2014 “for the sake of the public”.
Sadly, Mr. Szetu failed miserably to clarify the issue I raised. What transpired in his article though was a clear Issue No. 5410 on Thursday 23rd January 2014.
What I fairly raised in my article was that there were two Ex-parte orders issued by the High Court in two different cases that have similar if not the same facts.
First was the one issued in respect of CC 1/2012 by His Lordship Justice Rex Foukona. Second was the one issued in respect of CC 476/2013 by Justice Leonard Maina.
This is what I asserted as a clear abuse of process.
In response to what I raised, Mr. Szetu wrote and I quote. “Whilst I am not in a position to argue the legality of both orders, one only need(s) to see the chain of events” and of quote.
He then went on to talk about what happened at the neck of the main issue. What Mr. Szetu failed to inform the public about is the chain of events that stemmed the one he get bogged down with. If he is not in a position to explain the point I made then let me do it for him.
In fact, the crux of the matter is that Chachabule Amoi is clearly hiding behind the veil of incorporation.
Unless the contrary is proved, there is no dispute that Chachabule Amoi was the third defendant in CC 1/2012. That Chachabule Amoi is the sole owner of Fair Trading and Sol Pacific Timbers in Honiara.
That these two companies were only incorporated in 2011 after the Marovo Council of Chiefs (MCC) made a decision in favour of Ataban Tahu and Skinner Rence since 2008 one of was CC 1/2012.
Whilst Chachabule Amoi was bound by the Consent Order perfected in the High Court on 21st November 2012 followed by Ex-parte orders in CC 1/2012, Sol-Pacific Timbers came to his rescue by rushing to the High Court and filed a claim in CC 476/2013 with a claim that Sol-Pacific Timbers is an incorporated entity that never been named as party to CC 1/2012. This what I described as a clear abuse of our judicial process!
Even if Fair Trading and Sol-Pacific Timbers are incorporated entities as claimed, they have no legal rights to enter and harvest other people’s resources without the consent or permission of the rightful owners.
By doing so, they are committing serious offences under the Forest Resources and Timber Utilisation Act (FRTUA) and the Penal Code of the country.
Mr. Szetu admitted that the timbers in issue were bought by Sol-Pacific Timbers from villagers from Nazareth village.
Unfortunately, they are the same people whose claim has been thrashed by the MCC in its decision on 12th October 2010.
The very same people applied to the High Court for a judicial review in CC 367/2010 but the High Court refused the application in a decision that was further appealed to the Court of Appeal in CA 1/2011.
The Court of Appeal rejected the application on grounds that the argument put forward by the applications was “built on sand”.
If we are to talk about ownership of timbers bought by Sol-Pacific Timbers, the right principle in case-law to call for is the one in Simbe’s case in which the High Court reiterated the principles of “who owns the land owns the trees”.
According to the MCC decision of 12th October 2010 upheld by the High Court in CC 367/2010 and Court of Appeal in CA 1/2011, Ataban Tahu and Skinner Rence are the legal representatives of the rightful owner of the timbers bought by Mr. Szetu and his Sol-Pacific Timbers.
Those so-called villagers who sold the timbers are therefore liable under provisions of the Penal Code.
Section 279 states in part “Any person who steals or cuts, (...), with intent to steal, the whole or any part of any tree, (...) being to the amount of ten cents at the least, is guilty of a misdemeanour.”
It follows that general punishment for misdemeanour offences is provided by section 44 of the Penal Code as follows “When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment of a term not exceeding two years or with a fine or with both.”
The term “steal” is defined in section 258 (1) of the Penal Code as follows; “A person steals who, without the consent of the owner (...), takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof”.
If Mr. Szetu was the person who bought the timbers on behalf of Sol-Pacific Timbers then he is also liable as a party to the offence under section 21 of the same Penal Code. The provision states;
“When an offence is committed, each of the follow persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids or abets another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.”
Having said that, what else did I miss Mr. Szetu? I agree with you that High Court orders are made by the High Court and not the Judges.
But it doesn’t make sense when it is clear that you and your So-Pacific Timbers have continued to defy that other valid orders issued by the High Court and Court of Appeal.
The chain of events stated by Mr. Szetu was a reaction taken by the rightful owners of the stolen resources.
They were acting in accordance with a valid High Court order and there was nothing unlawful in it. The vehicles used were hired and those people involved were recruited on casual basis.
That is normal in our business world. If your need examples, look no further, just look at your employment with Sol-Pacific Timbers and ask yourself why are you there?
It is incorrect to say that they were armed and it also misleading to say that threatening violence occurred.