Sunrise Investment Ltd v Tohidi [2021] SBCA 18; SICOA-CAC 33 of 2020 (30 September 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Sunrise Investment Ltd v Tohidi
Citation:
Decision date:	30 September 2021
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	33 of 2020
Parties:	Sunrise Investment Limited v Wilson Tohidi, John Mark Doedoke, Patterson Nagive and Mathias Loji
Hearing date(s):	Paper Hearing August 2021
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Gavara-Nanu JA
Representation:	Apaniai J for Appellant Teddy P for Respondent
Catchwords:	Interim Restraining Orders
Words and phrases:
Legislation cited:
Cases cited:	Siota v Galego Resources Ltd [2016] SBMC 5, Tatalu v Lifuasi [1996] SBHC 32, Alu Lumber Company Ltd v Famoa Development Association Ltd [2002] SBHC 96,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-6

JUDGMENT OF THE COURT

1. This is an appeal against an interlocutory ruling by the High Court on 13 November, 2020 to perfect the interim restraining orders obtained by the respondents against the appellant on 25 August, 2020.
2. The interim restraining orders related to Category A Civil Case No. 374 of 2020. In that proceeding the respondents who are owners of Korona customary land made certain claims against the appellant which is a logging company. The respondents claimed damages for trespass into their land and illegal logging of Tubi trees which are protected by law; exporting of illegally logged Tubi trees and misleading the people at Korona that its extraction and export of Tubi trees were legal.
3. In his ruling on an application by the appellant to set aside the orders of 13 November, 2020, the primary judge said the core issue was whether the extraction or logging and exporting of Tubi trees were legal. The judge considered the relevant tests for granting of interim restraining orders as formulated in many decided cases, including American Cyanamid case, viz; whether there was a serious issue to be tried, whether damages would be adequate remedy and undertaking as to damages, and found that balance of convenience favoured the preservation of the status quo and dismissed the appellant's application. The judge said, there was no change in the circumstances since the granting of the interim restraining orders on 25 August, 2020.
4. In ordering the status quo to be preserved pending trial, the judge said:
   • “To extract and export Tubi one must possess special permits under the relevant laws. From the materials before me, there is no reason to believe that the defendants are in possession of a permit to export Tubi. The materials are pointing in favour of claimants’ case, that the extraction and export of Tubi were made without a permit. And if the materials should remain the same to trial, claimants do have a strong case – for illegal extraction and export of Tubi”. (Our underlining).
5. The appellant argued before the primary judge that respondents had sat on their rights for 8 months. To this argument, the judge said whilst that may have been the case, it was not easy for the respondents to travel to town and obtain legal aid, let alone issue proceedings, because they did not have money. Furthermore, they could not afford to engage lawyers. The judge said those considerations aside, the respondents had already lodged complaints with the relevant Government authorities regarding illegal logging of Tubi trees by the appellant.
6. The learned primary judge said:
   • “...But the important consideration in my mind is: “Why defendants would want to extract Tubi at the first place? It should be clear, all that Tubi on Isabel and Choiseul are protected species (public knowledge). So I do not accept laches, acquiescence and estopped (sic.) submissions.

Furthermore, I have stopped defendants not to operate on KCL. There is no relief sought against the license to prohibit operation on KCL. However, if the defendants are allowed to operate on KCL, they may be tempted to fell more Tubi. Defendants say it is hard to fell commercially permitted species, without felling Tubi. And gave an example where Tubi trees are to be cleared to make way to fell commercially permitted species on KCL. Materials say Tubi is plentiful on KCL. And on evidence, Tubi were felled and prepared in large quantify for export. That speaks of real intent to extract Tubi for export, not just to clear road access to fell commercially permitted trees. For me to lift the general injunction over KCL - defendants must file new materials to show that they can operate without cutting a single Tubi, for whatever purpose”. (Our underlining).

7. In perfecting the interim restraining orders, the judge made following orders:
   • (i) Export and proceeds of Tubi may be revisited on subsequent applications;
   • (ii) Claimants to quickly demonstrate they have ability to export Tubi;
   • (iii) Operations on KCL may be revisited as per the condition in paragraph 11;
8. In paragraph 11 of his ruling, the judge said:
   • “Defendants must file new materials to show how they can operate without cutting a single Tubi, for whatever purpose”.
9. The judge held that lead plaintiff had standing to make claims and noted that he had already laid complaints with the Minister for Forests regarding illegal logging of Tubi trees.
10. A copy of the Minutes of the meeting of the Korona customary landowners held on 27 October, 2017, specifically noted that Tubi tress are protected species by law; and they needed to negotiate more with the Government.
11. There is material that Tubi trees were felled by the appellant to clear log ponds and to build access roads for the loggers. This is clear evidence of illegal destruction of Tubi trees.
12. The appellant argued that the respondents may have been in general agreement for the appellant to carry out logging in Korona land.
13. This argument is futile for two reasons. First, if it is true that the respondents agreed for the appellant to carry out logging in Korona land, the license obtained by the appellant was a general license to log trees other than Tubi trees. Second, any agreement between the parties to log Tubi trees without the appellant obtaining a special license to log Tubi trees would be illegal and such agreement would be unenforceable.
14. It is not disputed that complaints were lodged with the relevant Government authorities against illegal logging of Tubi trees by the appellants, and the appellant is fully aware of those complaints.
15. There is material confirming that 10,000 cubic meters of Tubi trees were logged and stockpiled in Isabel Province for export. There is no dispute that Tubi trees are special and have special quality; hence its protection by law.

Grounds of appeal.

16. There are two grounds of appeal which can be summarized as follows:
    • (i) The judge erred in restraining the appellant from carrying out logging in the whole of Korona land.
    • (ii) The judge erred in requiring the appellant to reimburse proceeds of exported Tubi logs.
17. Regarding the first ground of appeal, the fact remains that it is illegal to log Tubi trees anywhere in the country, whether in Korona land or elsewhere. This is because every Tubi tree is protected by law, and that is the end of the matter. There is no way around it. Every Tubi tree carries the tag that it is a special species protected by law. Therefore, unless and until that law is repealed, it remains enforceable. This ground is misconceived and is dismissed.
18. As to the second ground of appeal, the appellant has been given an opportunity by the judge to revisit his orders in subsequent applications. It has not exhausted that remedy. The avenue is still open to it. In that regard, this appeal is an abuse of process. The illegal logging of Tubi trees has been admitted by the appellant. That is a strong ground for the judge to perfect the interim restraining orders. See, Siota v Galego Resources Ltd [2016] SBMC 5. The judge said, there was no change in the circumstances since the granting of the interim orders on 25 August, 2020, and based on the material before him, if the case was tried on those same materials, the respondents had a strong claim against the appellant and had good chance of success. Thus, there is a serious issue for trial which required preservation of the status quo. See Tatalu v Lifuasi [1996] SBHC 32. There was strong evidence of very high possibility of uncontrolled logging and further destruction of Tubi trees, and given its value, damages may not be an adequate remedy. See Alu Lumber Company Ltd v Famoa Development Association Ltd [2002] SBHC 96. This ground is also misconceived and is dismissed.
19. For the foregoing reasons, we do not find any error in the decision of the primary judge. The appeal is therefore dismissed with costs to the respondents.

Goldsbrough (P)
Hansen (JA)
Member
Gavara-Nanu (JA)
Member