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Omex Ltd v Ngu Brothers (SI) Ltd [2021] SBCA 20; SICOA-CAC 34 of 2020 (30 September 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Omex Ltd v Ngu Brothers (SI) Ltd


Citation:


Decision date:
30 September 2021


Nature of Jurisdiction
Appeal from Judgement of The High Court of Solomon Islands (Keniapisia J)


Court File Number(s):
34 of 2020


Parties:
Omex Limited, Lorensio Tangisi, Ioane Bakua Kokona and Joseph Kuri v Vungasilo Investment Limited and Joseph Tausuli, KSY Logging Company, Ngu Brothers (SI) Limited, Mr. SII Huo Ngu, Teikare Timber Limited and Eko Harianto


Hearing date(s):
Paper Hearing August 2021 Sitting


Place of delivery:



Judge(s):
Goldsbrough P
Hansen JA
Gavara-Nanu JA


Representation:
Apaniai J for Appellant
Kwaiga L for Respondent


Catchwords:
Contempt Ex Parte Relief


Words and phrases:


Legislation cited:


Cases cited:


ExTempore/Reserved:
Reserved


Allowed/Dismissed:
Allowed


Pages:
1-10

JUDGMENT OF THE COURT

  1. The appellants appeal the refusal of the High Court Judge to find contempt by the respondents on a second contempt application. The appellants had been granted restraining order that led to two applications for committal for contempt based on breaches of those restraining orders

Background

  1. The first appellant applied for, and was granted, timber rights over a number of customary land lots in West Guadalcanal which were called the Satona Customary Land. The physical features of the boundary of the customary land were described in the minutes of the Guadalcanal Provincial Executive (GPE) and set out on a map that was exhibited to the sworn statement of Lawrence Pongo.
  2. Following the GPE determination the Timber Rights Agreement (TRA) and a Supplementary Agreement were executed between the first appellant and the second appellants, the trustees of the Satona Customary Land. A felling licence was then issued to the first appellant authorising it to carry out logging within the Satona Customary Land, which was alternatively referred to as “Satona Concession Area” or “Omex Concession Area”. The licence expired on 23 April 2015 and was renewed for a further five years up until 6 May 2020. Logging commenced and continued until 6 May 2020, when it was suspended pending a decision by the Commissioner on the first appellant’s application for renewal of the licence.
  3. On 21 August 2019 the appellants filed an urgent ex parte application. It sought, amongst other things, to restrain the first, second and third respondents from entering the Satona Concession Area until trial or further order of the Court. That application was based on allegations by the appellants that the respondents had entered into one of the customary land blocks, called the Leitseva Customary Land (which is one of the customary land blocks forming part of the Satona customary land), and were carrying out logging there. It was supported by sworn statements which included the map referred to earlier. On 22 August 2019 the Court issued an ex parte order, which we will return to.
  4. On 29 October 2019 the appellants filed an application for additional interim orders and for contempt of Court against the respondents on the basis that the respondents continued to carry out logging in that part of the Satona Concession Area called the Leitseva Customary Land. Again, it was supported by a number of sworn statements.
  5. Trespass was denied, and the Court rejected the application for contempt but ordered the respondents pay the proceeds of logs felled by the respondents into a joint trust account. Currently, the sum of approximately SI $1.9 million is sitting in the solicitor’s joint trust account pursuant to that first order. There was no appeal against that order, apparently the appellants taking the view that the orders for payment of proceeds was sufficient. However, in the course of that ruling the Judge ordered a joint survey to be carried out, which resulted in two survey reports being produced which are exhibited to the statement of Lawrence Pongo.
  6. A second contempt application, the subject of this appeal, was filed on 9 September 2020 where it was alleged that the respondents continued logging operations in the Satona Concession Area. That application sought orders that the first-named appellants pay a fine and that Mr Tausela be imprisoned for three months. It further sought that the first-named third appellants be fined $100,000, and that Mr Ngu be imprisoned for three months. It was also sought that the Pan Oceanic Bank freeze all accounts in the names of the three corporate respondents in the sum of SBD2, 398,700.16, and that such accounts to be released only upon confirmation of the solicitor for the appellants confirmation in writing that the said sum, less 25 per cent export duty, had been paid into the solicitors trust account; and there was there set out the trust account of the lawyers for the appellants. Further consequential relief was also sought.
  7. This was a matter that was decided on affidavit evidence. That means that this Court is in the same position as the trial Judge, requiring us to look at this evidence and reach our own conclusions in relation to it.

Discussion

  1. The starting point for any consideration of the second contempt application is the ex parte order made by the Judge on 22 August 2019. Paragraph 2 of that order is the relevant one for present purposes, and it reads:
  2. It is common ground that the ex parte order was served upon the respondents to this appeal. They were the defendants in the hearing in the High Court. A great deal of material was placed before the trial Judge, which we will turn to. For present purposes it is enough to say that the Judge correctly identified that to be satisfied of a contempt, the criminal standard of proof of beyond all reasonable doubt applied.
  3. He identified the issues he considered he had to determine as:
  4. The Judge found that the appellants failed to establish those matters to the necessary standard. He also found the lapsing of the licence on 6 May 2020, even though an application for renewal was alive and the subject of other proceedings, meant that Omex could not claim ownership of any known concessionary rights over the concession land, even if they had established the boundaries of such land.
  5. We will return to what it is necessary for the appellants to establish and whether they did so, but we are satisfied this matter became confused because the Judge did not pose the correct questions and strayed from the terms of the relevant parts of the ex parte order.
  6. That order makes it clear that the respondents, their servants, and agents are restrained from entering and/or remaining in any block of land comprised in the Satona Concession Area, including Leitseva Customary Land, until trial or further order of the Court. That is a blanket prohibition on the respondents entering into the Satona Concession Area, including Leitseva Customary Land for any purpose.
  7. Paragraphs [b] and [c] restrain the respondents from felling and/or removing trees or carrying out any logging activities in any part of the Satona Concession Area, including Leitseva Customary Land, and from exporting or selling any such logs felled in Omex Concession Area or Leitseva Customary Land. Finally, [d] requires the removal of logging machines.
  8. It can be seen that what the Court needed to be satisfied on the contempt application, to the applicable standard, was had the respondents entered or remained in any of the relevant land area. They were further restrained from felling or removing trees, carrying out any logging activities or exporting or selling any of them. It is those matters that the Judge needed to turn his mind to and consider the evidence, and to what standard it had been established.
  9. We express surprise that an ex parte interim injunction would seek unlimited ongoing restraint over the land in the circumstances. The purpose of ex parte interim relief is to protect the situation so that it can be properly determined by the Courts. The interim order at 2(a) seems to us to be much wider than that.
  10. Although there were a large number of sworn statements with voluminous exhibits placed before the Court, we do not find it necessary to review it in any great detail. The GPE determination described the land in question as bounded by the Gausave River in the south, Hove River in the northeast, and the Komaridi River to the interior. As noted, map was prepared and showed the boundary quite clearly, as can be seen by reviewing that document at Exhibit SV2 to the statement of Steven Veno filed on 15 August 2019. It is equally clear from the description and the map that the land at the heart of the dispute in this case is included within the Satona Concession Area, alternatively referred to as the Omex Concession Area. We are satisfied of that beyond reasonable doubt.
  11. In relation to the evidence specific to the second contempt application, the appellants relied on a number of sworn statements. The first was sworn by Cornelius Tave, who said he was hunting in the blocks marked C17 and C18 (the relevant land) in the map we have earlier referred to. He was a former security person for the appellants’ contractor and knew the area well. He spoke to the respondent’s security person, who admitted he was the security person for the respondents, and they were carrying out logging in the Satona Concession Area because the forestry division had lifted a ban on logging in that area. That was corroborated by the sworn statement of Adrian Smith.
  12. The next statement relied on was of Benjamin Rahe, who confirmed the respondents carried out logging in the Satona Concession Area since logging had been ended in May 2020 by the appellants’ contractor, Apex. He had two blocks of land in the relevant area. The first had been logged by Apex, but 58 logs were still left in the bush, while the second block had not been logged. In July 2020 he went and checked on his land and found the 58 logs were gone and the second block had been completely logged. He confirmed no other companies were operating in the area apart from the respondents.
  13. Francis Lovana confirmed similar evidence. He and his family own blocks of land within Leitseva Customary Area which is clearly established as within the Satona Concession Area. He said the blocks were divided into 12 blocks under the contractor for the appellants, Apex’s, coupe plan. He said that despite the land being so divided, Apex had never carried out any logging inside his family land at the time they left the area at the end of May 2020. He said that when the respondents came in, his family’s block was divided into only six coupe blocks. He visited the land again on 29 July after hearing rumours and was surprised to find the respondents were carrying out logging operations on their land. The respondents’ machines were on site, and he even boarded the respondents’ bulldozer to return to their log yard, as it was raining. He noted the respondents’ Chinese workers were on site on his family’s block of land on that day. Two further statements by Lawrence Pongo also confirmed this.
  14. In opposition, the respondents filed a large number of affidavits. Again, we are satisfied we do not have to deal with them in detail. The first group were sworn by Philip Game, Thompson Sotere, Leonard Chilivi, Robert Kekedo and Andrew Tola. Those sworn statements contain only the most general denials of trespass by the respondents into the Satona Concession Area.
  15. The sworn statements of Joseph Tausili, Philip Game, Use Bio Sageli, Derek Ngu and Julian Kelivani did not challenge the statements we have just referred to of Cornelius Tave, Adrian Smith, Francis Lovana and Benjamin Rahe which alleged the respondents had carried out logging in blocks C17 and C18. Nor did those sworn statements challenge or deny that they had carried out logging on the block of land which belonged to Francis Lovana and his family.
  16. The sworn statements of Saverio Tohi, Moses Sageli, Abraham Belande, Zachariat Manganigolo confirmed the respondents entered into the Satona Concession and hauled logs within that part of the Seva land which comes under the appellants’ felling licence. The reason given was that the respondents’ entry was requested by the landowners, who authorised them to haul the logs since Omex and Apex had left the concession area. Tohe’s affidavit states respondents carried out logging in an overlap area because it was a common boundary.
  17. There is very strong evidence in the sworn statements filed on behalf of the appellant that the respondents entered into, carried out logging operations and took away lands inside the Satona land.
  18. We think Mr Apaniai’s criticism of the questions the Judge framed for himself are well justified. We agree with him that the questions that needed to be answered were:
  19. That directly relates the questions back to the ex parte order that the appellants alleged had been breached. We are quite satisfied the answers of both of those questions, to a criminal standard, is Yes.
  20. In those circumstances we find the contempt of the respondents established beyond reasonable doubt. We are satisfied the appropriate course is for this Court to determine the appropriate penalty.
  21. We are not prepared to impose any penalty for the breach of such a wide-ranging prohibition as that contained in 2(a) of the interim order. We do not consider such relief should be sought in an ex parte application. However, given the breach of the other parts of the order we are satisfied that the order sought at para (3) of the application should be granted.
  22. Accordingly, this Court orders:

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

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