Allardyce Lumber Company Ltd v Anjo [1997] SBCA 3; CA-CAC 8 of 1996 (15 April 1997)

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Nature of Jurisdiction:	Appeal from a judgment of The High Court of Solomon Islands (Awich J.)
Court File No.:	Civil Appeal No. 8/96
Date of Hearing:	13 December 1996
Date of Judgment:	15/04/97
Coram:	Kapi A/P.; McPherson JA; Casey JA

Parties:	ALLARDYCE LUMBER COMPANY LIMITED
	First Appellant

	AND:

	DOVELE DEVELOPMENT COMPANY LIMITED
	Second Appellants

	V

	NELSON ANJO
	Respondent
Advocates:	Mr. J. Sullivan for the Appellants
	Mr. P. Lavery for the Respondent Interlocutory
Key Words:	Interlocutory Injunction - proper principles to be applied. *Forest Resources and Timber Utilisation Act* (Cap 90) - scheme for felling and removing timber from customary land.
Ex Tempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed.
Pages:	15

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Civil Appeal No.8 of 1996
(High Court Civil Case No. 34/96)

Date and Place of hearing: 10 December 1996, Honiara
Date of delivery of Judgment: 15 April 1996, Honiara

This is an appeal against an interlocutory injunction granted by the High Court (Awich J) to restrain the appellants from:

2. Entering Saqalele Land at al1, except with the consent of Nickson Korikera and Nelson Anjo.

3. Entering Saqalele Land for any operation associated with the business enterprise commonly known as logging.

Before turning to the circumstances of this case, it would be helpful to set out the requirements of law in the Solomon Islands with regard to the timber industry. This activity is regulated by the Forest Resources and Timber Utilisation Act (Cap 90) (hereafter referred to as “the Act”). For the purposes of the appeal before us, the following may be briefly described as the scheme set out under the Act.

A person who wishes to engage in felling trees for sale, may make an application to the Commissioner of Forest Resources for a licence (s 5(1)).

If the felling and removal of trees are from any customary land, the Commissioner shall not grant any licence unless he is satisfied that the applicant has obtained an approved agreement from the customary owners of the land where the trees are located (see s 5 (1) (c), 5 (1A) (b)).

The manner in which such an agreement may be obtained is set out in s 5B. First, the applicant must apply to the Commissioner to obtain his consent to negotiate with (1) the Provincial Executive in the Province where the land is located (2) the Area Council appointed for the Province under the law and (3) the owners of the customary land.

Where a notice of application for a licence is forwarded to it, the Area Council shall organise a meeting with the Provincial Executive, the customary owners and the applicant for a licence (see s 5C (1)). The Area Council then determines the matters set out under s 5C (3). In so far as it is relevant to the present case, this includes:

(a) whether or not the land owners are willing to negotiate for the disposal of their timber rights to the applicant.

(b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are.

Any agreement reached is reduced to writing (see s 5C (4)). This agreement then enables the applicant for licence to identify the forest resources on the land in question and also determines other matters (s 5C (5). The Area Council then certifies its determination (s 5C (2) (a)), gives notice of the determination (s 5C (2) (b)) and then forwards the certificate to the Provincial Executive (s·5C (2) (c)) who in turn forwards it to the Commissioner (s 5C (3)).

Where no agreement is reached between the applicant and the customary owners, the Area Council shall recommend to the Commissioner to reject the application and the Commissioner shall be bound to reject the application for licence (s 5D (1)).

Where any person is aggrieved by the determination of the Area council, he may appeal within one month of the notice, to the Customary Land Appeal Court appointed for the area under the law (see s 5E). The decision of the Customary Land Appeal Court is final and conclusive and cannot be questioned in any proceedings whatsoever (see s 5E (2)).

The circumstances in which the trial judge granted the interlocutory injunction are that on 12 October 1995 Commissioner of Forests Resources granted a Licence (Ex. “A”) to Dovele Development Company (Second Appellant) under s 5 of the Act to cut, fell and take away timber from “Paraso Land” located in the Dovele area, North Vella La Vella. The licence was issued on 12 October 1995 and unless earlier determined is valid until 12 October 2000 (see Ex. “A”).

As the land covered by the licence is customary land, the second appellant negotiated and obtained an agreement with the customary owners of Paraso Land pursuant to s 5C of the Act (see Ex. “B”).

There is no question raised about the grant of the licence and the agreement negotiated with the customary land owners in respect of this land.

Allardyce Lumber Company Limited (hereinafter referred to the “First Appellant”) entered into a management contract with the second appellant to run the operations with regard to cutting, felling and taking timber away within the area licensed to the second appellant.

The boundaries of Paraso Land is simply described in the agreement (Ex. “B”) as “customary land known as Paraso and shown edged red in the plan scale of 1 : 50,000 attached to this agreement”. Unfortunately, this plan was not attached to the copy of the· agreement tendered in Court.

There is a map which was produced by the respondent in the Court below (see page 17 of the record). However, counsel who appeared before us made no attempt to explain the relationship between this map and the plan referred to in Ex. “B”. It is therefore not possible to identify Paraso Land with any accuracy in any map or plan. No doubt this will be clarified at the trial of the substantive action.

The best we can do for the purposes of the appeal before us is to simply identify this land by reference to different parcels of land which have been approved by their customary owners for logging and which form part of Paraso Land for purposes of the licence (Ex. “A”). They are: Sambe Land, Sikuni Land, Barekasi Land, Kabolasi Land, Povana Land, Sauro Land and Vuruvasu Land (see page 14 of Ex. “B”).

Nelson Anjo (hereinafter referred to as the (“Respondent”) filed a writ of summons and claims:

(1) that he is the Chief of Melele Tribe and was at all material times the owner and entitled to possession of “Saqalele Land” in Vella La Vella in the Western Province.

(2) that when the Area Council met, the respondent was identified with one other person, Nickson Korikera as the customary owners of Saqalele Land and that they did not give approval for timber rights or for any construction of any road through the land.

(3) that the claim of ownership of Saqalele Land and refusal to give timber rights was not appealed in accordance with s 5E of the Act.

(4) that in about November 1995, the first appellant entered upon the Saqalele Land and began to construct a road and a log pond. It has been alleged that a second road had been constructed on Saqalele Land by the time the application for interlocutory injunction was heard.

The respondent claims permanent injunction to restrain the appellants and their servants or agents from entering into Saqalele Land for any purpose whatsoever, a declaration that the Licence granted to the second appellants is invalid in so far as it purports to extend to Saqalele Land and damages.

The matter which came before the High Court was to grant an interlocutory injunction pending the trial of the substantive action. The trial judge concluded that the respondent’s cause of action disclosed triable issues. He further concluded that the balance of convenience favours the appellants and consequently would deny the respondent the interlocutory injunction.

However, he granted the interlocutory injunction on another basis, namely, that the appellants’ licence did not extend to Saqalele Land and therefore when the first appellant fell trees in the process of building the road on the said land, they committed a criminal offence under s 4 of the Act. He held in the following terms:

“If one operates without licence, vigilance on the part of the Forestry Division staff should result in discovering the unlicensed operation. One would be prosecuted for a criminal offence under s 4 and certainly his operation would be stopped. In this case Forestry Division has not discovered what was going, on Saqalele Land The plaintiff has and seeks to stop it. Even if the rule of balance of convenience does not favour him, the court must act to stop what appears to be violation of the criminal law. Accordingly interlocutory injunction is imposed against Dovele Development Company Limited and Allardyce Lumber Company Limited restraining them..”

The respondent has not cross appealed in relation to the finding by the trial judge that on the balance of convenience the interlocutory injunction would be denied. However, counsel for the appellants has agreed that he would not object to the respondent raising this matter before us.

The principles governing the grant of an interlocutory injunction are well settled in this jurisdiction. The leading authority on the general principles is the House of Lords decision in American Cynamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504. The rules of common law and equity form part of the law of Solomon Islands (see Sch. 3 paragraph (2) of the Constitution of Solomon Islands). These principles have been applied in the Solomon Islands in a number of cases; Tung Shing Development Ltd v Yim Kwok & Others Civil Case No. 66 of 1995 dated 7 April 1995; North New Georgia Timber Corporation & Another v Sake Hivu & Others, Civil Case No. 387 of 19:93 dated 10 February 1995; John Wesley Talasasa v Attorney General & Others, Civil Case No. 43 of1995 dated 15 May 1995.

The first question is: Is the action by the respondent frivolous or vexatious? Is there a serious question to be tried? Is there a real prospect that the respondent will succeed in his claim for permanent injunction at the trial? In essence all these questions are part and parcel of the same test. This issue does not arise for our consideration in this case. Counsel for the appellants conceded in the Court below as well as before us that the respondent has a strong enough case that discloses triable issues. With respect we agree.

The next question the Court must consider is whether the balance of convenience lies in favour of granting or refusing the interlocutory injunction. There are two sides to this question. If the respondent succeeds in his action, would he be adequately compensated for damages for loss sustained between the application and the trial. If the answer to this inquiry is positive, no interlocutory injunction should normally be granted.

If on the other hand damages would not provide adequate damages the Court should then consider whether if the respondent fails, the appellants would be adequately compensated under the respondent’s undertaking in damages. If the answer to this inquiry is positive, there would be no reasons on this ground to refuse an interlocutory injunction.

In this matter, the respondent gave no undertaking for damages. We were advised by counsel that in the Solomon Islands it is not normal to request such undertaking from customary land owners. Counsel for the appellants has submitted that this is a consideration in favour of not granting the interlocutory injunction.

As part of considering the balance of convenience, other things being even, an important factor that should be considered is preserving the status quo until the trial is held.

It may also be proper in appropriate circumstances to take into account in tipping the balance the relative strength of each parties case on the evidence before the trial judge.

The serious issues to be determined at the trial are set out in the appellant’s written submissions:

2. Whether or not the respondent had consented to the road construction on Saqalele Land.

3. Whether the road that the appellant’s intend to continue to use is within the Saqalele Land.

On the question of whether or not the respondent is the owner of Saqalele Land, the trial judge reviewed the evidence and the determination of ownership under the Act and concluded (see page 85 of the record):

“In this case Mr. Sasabule and the others failed to present themselves before the Vella Area Council when there was a ‘sit down’ to identify the persons who would grant right over Saqalele Land The plaintiff and Korikera did not fail: they were identified, ...”

The evidence in the Court below shows that the respondent and another man Nickson Korikera of Memele tribe are the persons lawfully entitled to grant timber rights over the said land. This question was determined in accordance with s 5C (3) of the Act. There was no appeal against this determination under s 5E of the Act.

In the Court below, appellants sought to dispute the question of ownership of this land. With respect the appellants were not entitled to raise this issue. The High Court has no jurisdiction to deal with questions of ownership of customary land for purposes of a licence under the Act. It follows from this that the question of ownership cannot be raised on appeal before us. The evidence clearly established that the respondent and his tribe were persons lawfully entitled to grant timber rights over Saqalele Land.

Did the respondent give any permission or consent to the construction of a road? The trial judge after finding that the respondent and Mr. Korikera were identified as owners of the land, further concluded (at page 85):

The evidence shows that the respondent and Nickson Korikera both attended the meeting of the Area Council on 23 May 1995 and they recorded their objection to the company using their land (see minutes of the Area Council Meeting on page 29 of the record). This objection was also recorded by the Area Council (see page 22 of the record).

The appellants sought to show in the Court below that the respondent in fact gave consent for the road to be built (see affidavit of Didili Sasabule at pages 44 to 48). Paragraph 16 of the affidavit simply makes the bold assertion that the respondent consented to the road being built without giving any details of where and when this consent was given.

Furthermore, the affidavit of John Mark in paragraph 11 asserts that the respondent gave his consent (see page 35 of the record). However, this is clearly hearsay and cannot be relied upon. In denying this assertion the respondent in paragraph 1(f) of his affidavit said that at no time did he ever give his consent or agreement to the road passing through the Saqalele Land.

The evidence clearly established that the respondent did not give consent for his land to be used for the construction of a road.

The next triable issue is whether the road in question runs through Saqalele Land. The trial judge appears to have dealt with the interlocutory injunction on the assumption that the road went through Saqalele Land.

The respondent gave evidence of this in his affidavit (see page 14 of the record). He also gave oral evidence and was cross examined on the issue at the trial (see pages 59 to 67 of the record).

The respondent’s evidence is supported by affidavits filed on behalf of the appellants. The affidavit of John Mark (see paragraph 14 on page 36 of the record) and the affidavit of Didili Sasabule (see paragraph 14 and 15 on pages 45 and 46 of the record) confirm that the road goes through Saqalele Land.

Did the licence validly cover Saqalele Land? The trial judge concluded (see page 85 of the record):

“I am therefore able to conclude, even in the absence of the licence on record, that the licence that the third defendant obtained did not cover Saqalele Land The Commissioner of Forests Resources could have only granted licence over Saqalele if timber right over Saqalele Land had been granted Thai is required by S:5(1)(c). “

The licence and the approved agreement in respect of the land were not produced before the trial judge. We called for and received these documents before us by consent under rule 22 of the Court of Appeal Rules 1983 (as amended). The description of Paraso Land clearly does not include Saqalele Land (see page 14 of Ex. “B”).

In any case, s 29 of the Act provides that no licence shall give any right to enter or take any action with respect to anything without the authority of the owner of the land. The effect of this provision is noted on the last page of the licence (Ex. “A”). As the respondent did not give consent, the licence cannot extend to Saqalele Land. There is no question that the licence in this case does not extend to Saqalele Land.

The timber rights given to the second appellant under the licence gives them the right to carry out any of the activities enumerated in s 5A (a) to (h) of the Act. These rights are confined to Paraso Land in respect of which the licence was granted. They cannot extend to any other land which is not covered by the licence. Consequently the appellants are not entitled to build a road through the respondent’s land.

The position seems clearly established on the evidence at this stage of the proceedings that the respondent and his tribe are the owners of Saqalele Land and therefore entitled to its possession; and the weight of the evidence before the Court strongly supports his claim that he did not consent to the land being used for the construction of a road. Unless the appellants can produce more convincing testimony that such consent was granted than they have offered to date, they had no right to enter and must be regarded as trespassers having no right to continue using any road on Saqalele Land. To allow them to do so in these circumstances would be tantamount to condoning continuous trespass to the respondent’s land.

In the circumstances, the maintenance of the status quo should be given due consideration until the matter is tried. There was no activity on this land until the appellants started to construct the road in November 1995. The respondent attempted to stop the appellants from constructing the road at the outset but the respondent’s warnings were ignored (see affidavit at page 14 of the record). The status quo in the circumstances would be to prevent all parties from dealing with title land in any manner until the substantive action is tried and determined.

The trial judge fell into error in this regard when he refused to grant interlocutory injunction in favour of the respondent.

Interlocutory Injunction Granted on Account of Violation of the Criminal Law.

While the trial judge considered that the balance of convenience did not favour the grant of an interlocutory injunction he nevertheless found that:

“...the court must act to stop what appears to be a violation of the criminal law.”

This ground of appeal raises important considerations of the proper exercise of the jurisdiction of the Court to prevent an infringement of the criminal law. However, it will not be necessary to deal with these issues, because in our view, the trial judge fell into error when he concluded that the interlocutory injunction was to stop a further violation of the criminal law. The implication of the trial judge’s ruling was that the appellants would continue to fell trees on Saqalele Land contrary to s 4 of the Act.

Counsel for the appellants· accepted in his written submissions that while the appellants may have committed an offence in felling the four trees in the past, there was no evidence that they would continue to fell other trees in the future. The intention was to simply use the road continuously to have access to Paraso Land. The use of the road of itself is not an offence under the Act. There was no apprehension that the appellants would continue to commit a criminal offence. We would allow this ground of appeal.

As the interlocutory injunction can be supported on the balance of convenience, the formal order of the Court is that the appeal is dismissed with costs.

The trial judge gave directions for further pleadings and progress of the case in the High Court. We do not see any difficulty with directions 1 to 3.

The direction with regard to the determination of the question of ownership of customary land in the Local Court is not a matter which comes within the jurisdiction of the High Court. Whether or not any of the parties wish to pursue this matter in the Local Court is a different matter. There should not be any direction in this regard.

Court of Appeal of Solomon Islands

Allardyce Lumber Company Ltd v Anjo [1997] SBCA 3; CA-CAC 8 of 1996 (15 April 1997)