Hearing: 27th & 30th September 1996
Judgment:
7th October 1996
Counsel: P Lavery for the
Plaintiff;
J Sullivan for Defendants 1 &
3;
Attorney General for the
second Defendant
INTERLOCUTORY JUDGMENT
AWICH, J:
On 2/2/96 Mr Nelson Anjo, the plaintiff and applicant
in this case took advantage of the High Court sitting at
Gizo
by bringing an urgent application seeking interim
injunction to restrain Allardyce Lumber Company Limited,
the
first defendant, from entering Saqelele Land on Vella
La Vella Islands in the Western Province. He filed the
application
together with the writ of summons at the
Magistrate's court, that court being the district
registry for High Court
cases. Mr Anjo's application was
brought ex parte. He cited the Attorney General as
representing Commissioner of
Forest Resources as second
defendant. It was my view that it was a case that
required service on the first defendant,
a large company
that usually acted by known solicitors; and service on
Attorney General could be easily effected
and could not
result in any prejudice to the plaintiff. In any case I
did not think that much damage would be occasioned
by
delay brought about because of the time required for
service, and certainly the object of the application
would not be defeated if service was effected. The first
defendant was alleged to have entered the plaintiff's
land, without consent, constructed transit road to reach
lands beyond the plaintiff's, for purposes of cutting
trees for timber and transporting them to sea, a business
enterprise commonly referred to in Solomon Islands as
logging. It was my view though that the affidavit
evidence was so strong in favour of Mr Anjo being the
person entitled to grant timber right under section 5 of
the Forest, Resources and Timber Utilisation Act. Because
he said that he never granted any right over the land, I
granted the interim injunction ex parte, but
for a very
short time before inter partes hearing which was to be in
Honiara. Subsequently parties agreed to consent
order
wherein the first defendant undertook not to enter the
land until inter partes hearing on a distant date.
That
order was accordingly adopted by court.
On 28/9/96 inter partes hearing was held. Dovele
Development Company Limited applied to be joined as
defendant,
on the grounds that Dovele Development Company
was the licencee to log in the area and Allardyce
was merely running the operation under a
management agreement. It must be noted that the
application was not for third party
notice under Order
18. Such an application is made by someone already a
defendant, for notice to joint a non party
as additional
defendant. The present application was made by Dovele a
non party, asking to be joined. The application
did not
identify the law under which it was being made. I granted
the application, based on order 17 rule 11 because
it was
my view that Dovele, the licencee, should be joined in
order to enable the court to effectually and completely
adjudicate upon the trespass, the subject matter, and to
settle all the questions involved in the cause before
court. Dovele Development Company Limited became the
third defendant. Further direction orders are stated at
the end of this judgment.
The plaintiff's case for injunction was that at the
meeting of the Vella Area Council held for the purpose of
determining
the people entitled to grant timber right, it
was determined that he was the person entitled to granted
timber
right in the land known as Saqelele Land. He
attached to his affidavit, a copy of exhibit No. 2.1,
which is a copy
of FOREST AND TIMBER ORDINANCE "FORM
II." In that form in the second schedule, appear
these words:
NELSON ANJO (Memele tribe) - All rights will not
be granted.
NICKSON KORIKERA (Memele tribe) - All rights will
not be granted.
From his evidence in court, upon leave having been
granted to have him cross-examined, the plaintiff said
that the
first defendant had built two roads into his
land, the upper and the lower roads. The upper one
traversed his land
over a distance estimated by court to
be a little over one kilometre. The lower one came from
the sea into his
land. A log pond was built to it. He
does not want any roads into his land and has never
granted any right to have
roads through his land. He said
that during the road building, he lost 4 trees and small
trees and other vegetation
he would use for local
materials in his village life. Erosion would result from
the continued use of the roads.
He wants injunction
stopping the use of the roads until determination of the
case finally.
The second defendant, the Attorney General filed
memorandum of appearance, but has not as yet filed
defence and
has not come to court to be heard on the
question of interlocutory injunction. Presumably it does
not matter to
the Attorney General which way the case is
determined as between the plaintiff and the first
defendant. The Attorney
General has done the right thing
by entering appearance so that he leaves the court in no
doubt that he defends
the correctness of the official
action of the Commissioner of Forest Resources in
granting the logging licence
in issue here. I have seen
cases in which the Attorney General has not filed
memoranda of appearance. I would not
be surprised if I
were to be told that in such cases he had not been served
with the case papers, although he was
cited as a party.
It would be discourteous to court if Attorney General
simply ignored to file memorandum of appearance
which is his acknowledgment of service and signal that he
supports the official action of the government
official
whose action is being challenged in court. I am grateful
for the acknowledgment by the Attorney General.
The first defendant opposed the application for
interlocutory injunction. Dovele Development Company
Limited, now
the third defendant is said to be the holder
of the licence by which authority the first defendant is
logging in
the area including Saqelele land, so its case
is the same as that of the first defendant. Learned
Counsel Mr Sullivan
represented both and stated so.
The case of the first and third defendants is that
they are operating in the area by authority of a licence
dully
granted by the Commissioner of Forest Resources.
That licence was not presented to court. In support of
their case,
they filed affidavits which among other
things, challenged the stated position of the plaintiff
as chief of Memele tribe and presented the
position to be that several Memele tribespeople agree to
logging and road building. The
position of the plaintiff
as the one entitled to grant right over Saqelele Land was
also challenged. A letter from
some tribespeople to that
effect was filed.
The two defendants conceded that the plaintiff has
presented a strong enough case that discloses triable
issues.
They, however, contended that he has not
presented a case for interlocutory injunction to be
granted. Mr Sullivans
cited the case of John Wesley
Talasasa -v- Attorney General and others Civil Case No:
43 of 1995 for the guiding principles. He submitted
that the damages that the plaintiff seeks to
put a stop
to, by the injunction, have already been done; the four
trees and the undergrowth have already been
cut and the
roads have already been built. Erosion will not occur
because the defendant s now desire to use only
one of the
roads, the upper one and will maintain it. The damages
caused can, in any case, be adequately compensated
by
monetary award, should the plaintiff be successful in his
suit in the end. Counsel stated that the defendants
will
give undertakings that 1. They will not use the lower
road until determination of this case, 2. They will
maintain the upper road so as to avoid soil erosion. He
dwelt on other matters that concern public good for the
local population such as the roads beings available for
the use of all, and a school that the first defendant is
building for the use of the population there including
the plaintiff.
Mr Sullivan's submission was an excellent example to
any less senior counsel, of ability of a senior counsel.
He
presented to court material of the case law he relied
on and clearly referred to pages and paragraphs. I am
grateful
for his being of great assistance, and making
the courts work much easier.
Defendants' good work for the benefit of the community
is commendable, but are not the determining factor in
this
case. If the plaintiff has right to exclude people
from Saqelele Land and he would selfishly like to keep
out people
without right, from transversing his land even
for purposes that bring a lot of good to the community,
the plaintiff
inclusive, he would be entitled to do so. I
would imagine that there would be legislation about
access road which
one would have to have invoked before
access through someone's land can be regarded as legal.
I agree with the submission that damage has already
been done, and that the loss of the vegetation now will
have
to be compensated by money and so may be taken as
compensatable adequately. There is no other way now to
compensate
for the four big trees and the smaller plants.
Interlocutory injunction cannot bring them back. The
trespass that
has already occurred will also have to be
compensated for in injunction is refused now there
would be future trespass (in the event of the plaintiff
winning), for which
damages will have to be sought and of
course the more adequate relief of granting permanent
injunction at the final
determination will be the
appropriate relief. Soil erosion is likely to be
contained by the defendants' undertaking.
So the damages
that would arise if interlocutory injunction is refused
is the future incidents of entering which
are on each
occasion, trespass and attract award of damages without
proof of any loss arising.
The balance of convenience; of the magnitude of non
adequately compensatable loss would be to balance the
incidents
of trespass not shown to cause any identified
damages, and the loss in revenue from the logging
operation of the
defendants. It is clear that the loss of
the defendants would be the greater.
For what I have stated in the immediate two paragraphs
above, I would hold that the balance of convenience
favours
the defendants and would deny the plaintiff
interlocutory injunction.
An important aspect of the application was not raised.
I think the Attorney General might have done so. It may
be
put in question form. Is the area described as
Saqelele Land, through which the first defendant, the
licence holder
and its manager have built road, within
the area stated as covered by their licence? If
defendants are found not
to have licence covering that
land, would it be within the court's power to stop
them if the plaintiff cannot show that he has right to
apply to court for injunction?
Under part II of Forest Resources and Timber
Utilisation Act, a person who would like to fell tree and
remove timber for sale requires licence. If he does not
obtain licence,
he commits offence under section 4 (1)
for which he is liable to pay find of $3,000 or suffer
imprisonment for
2 years. The procedure to obtain licence
is outlined in section 5. The licence that the third
defendant holds was
obtained by going through that
procedure. An important feature of the procedure is a
meeting of the area council
to determine the identity of
the persons who are entitled to grant timber right over
customary land. In this case
that is the meeting whose
minutes is filed with the plaintiff's affidavit and to
which is attached Form II, marked
exhibit No. 2.1.
Defendants have not challenged that and have not filed
alternate minutes or alternative Form II.
In the form II,
it is clearly stated that Nelson Anjo, the plaintiff and
Nickson Korikera were the persons determined
by the Vella
Area Council as the persons entitled to grant timber
right over Saqelele Land. In the second schedule,
it was
clearly stated that they did not grant any right at all,
over Saqelele Land. S:5 D provides for appeal against
determination by a council, to the Customary Lands Appeal
Court, within one month. The applicants to the Vella
Area
Council, in this case, the directors in the third
defendant company did not appeal and so the council's
determination remains to this day. No rights over
Saqelele Land were granted and the plaintiff and Nickson
Korikera are the persons to grant rights. 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 Saqelele Land. The Commissioner of
Forest Resources could have only granted licence over
Saqelele if timber right over Saqelele Land had been
granted.
That is required by S:5E.
The defendants have challenged customary ownership and
or customary right of the plaintiff in Saqelele Land.
They
filed affidavit of Didili Sasabule who said that he
was a member of the plaintiff's tribe, Memele, and that
Bobby
Matebuta is their chief, not the plaintiff,
Matebuta would be the one to represent the tribe and
grant timber right. He stated in paragraph 30
that none
of the plaintiffs' land is affected by the logging
proposal of Dovele and Allardyce. It was a careful
affidavit which avoided to say anything about the roads
on Saqelele Land. Defendants also filed letters from
persons said to be members of Karokesa Memele tribe in
which they challenged the plaintiff's status in
representing
them in customary land matters. Those
challenges do not advance the defendants' case any
further. In Solomon Islands,
cutting and removing trees
(logging) must be by authority of licence issued by the
Commissioner of Forests Resources.
For licence to be
granted over Saqelele Land, Mr Sasabule and those
tribespeople agreeable to the defendants' operation
would
have to present themselves to the area council, be
accepted by the council as persons entitled in custom
to
grant the right. That exercise is what was described by
Commissioner of the High Court Crome in Fugui and
Another -v- Salmac Construction Company Limited and
Another (1982) SILR 700 at page 105 as, "the
essence of procedure leading to the granting of a
licence." 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 Saqelele Land. The
plaintiff and Korikera did not fail; they
were
identified, but they refused to grant any right. The
position still remains that notwithstanding some support
by some tribespeople of Memele, the defendants do not
have licence to operate on Saqelele Land.
If one operates without licence, vigilance on the part
of the Forestry Division staff should result in
discovering
the unlicenced 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, on
Saqelele 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
a violation of the criminal law. Accordingly
interlocutory injunction is imposed against
Dovele
Development Company Limited and Allardyce Lumber Company
Limited restraining them from:
1. Using the two roads built into Saqelele Land on
Vella la Vella.
2. Entering Saqelele Land at all, except with the
consent of Dickson Korikera and Nelson Anjo.
3. Entering Saqelele Land for any operation
associated with the business enterprise commonly
known as logging.
Costs of the application is awarded against the first
and third defendants in favour of the plaintiff.
This judgment is only about interlocutory matter.
Parties sought direction as to further pleadings and
progress
of the case. Learned counsel Mr Lavery is now
entitled to enter judgment instead of submitting for
direction. In
the normal sequence of pleadings, the
plaintiff applies for direction, and usually when
pleadings are deemed to
have closed - see Order 32 of the
High Court (Civil Procedure) Rules. In some circumstances
the defendant may do
so. In this case defendants have
filed memoranda of appearance as long ago as March 1996.
They have not to date
filed defence. Pleadings cannot be
deemed to have closed. Mr Lavery should by now be
applying for judgment on account
of the default. He has
now lost that opportunity in view of the directions the
court is about to order. Direction
order is made in the
following terms:-
- Dovele Development Company Limited having been
joined as party, the plaintiff is to file amended
writ of summons in which Dovele is cited as the
third defendant, and the allegation that
Allardyce
is on Saqelele Land by reason of the
licence issued to Dovele or other facts having
similar effects
or otherwise disclosing cause of
action against Dovele.
- The amended writ of summons in 1 is to be served
on all the three defendants within 14 days of the
date of delivering this judgment.
- The rest of pleadings beginning with entering of
appearance is to be in due compliance with the
Rules.
- Any party who wishes to rely on customary
ownership or customary right in customary land is
to commence
any proceedings in local court within
14 days of this judgment, to obtain judgment
establishing
the customary right the party relies
on.
Delivered this 7th day of October 1996.
Sam Lungole-Awich
dge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1996/54.html
