Alamu v Ziru [1996] SBHC 83; HCSI-CC 103 of 1996 (26 April 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.103 of 1996

JOYCE ELEANOR ALAMU
and ROLLAND RODI (Representative of Losa Tribe)

-v-

RONALD ZIRU (Tradinq as Mbaeroko Timbers)
and COMMISSIONER OF FOREST

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No.103 of 1993

Hearing: 3 April 1996
Judgment: 26 April 1996

A.N.Tongaratu for Applicants
C.Ashley for 1^st Respondent

MURIA CJ: The applicants in this case have come to this court seeking the following the following interim orders:

1. That an interim injunction be issued restraining the first respondent and his agents from trespassing onto Lot 75 of LR 395/2, Mbaeroko

2. That an interim injunction be issued restraining the first respondent and his agents from carrying on any logging and or milling operation and activities related thereto on Lot 75.of LR 395/2, Mbaeroko.

3. That the logging and milling licence issued by the second respondent to the first respondent be suspended.

4. That the High Court Order dated 21 March 1996, Civil Case No. 89 of 1996 be set aside.

5. Any other orders that this court deems fit to make.

Before I proceed any further, I think it will also be necessary to set out the order made by this Court on 21 March 1996 in CC89/96 which the applicants seek to have it set aside. That Order is in the following terms:

“Upon hearing Mr. Ashley of counsel for the plaintiff and upon reading the affidavit of Ronald Ziru sworn on the 20th day of March 1996 and filed herein on the same day IT IS HEREBY ORDERED THAT:

1. And injunction restraining the first and/or second defendants and their agents from trespassing onto Lot 75 of LR 395/2 is granted.

2. an injunction restraining the first and second defendant and their agents/relatives from doing any act/omission that would interfere with the plaintiff's logging operations on Lot 75 of 395/2 is granted.

3. an injunction restraining the first and second defendants and their agents/relatives from doing any act that would cause damage or physical injury to the plaintiff's equipment and personnel on Lot 75 of 395/2 is granted.

4. Costs in the cause.

AND the first and second defendants and their agents are liable to be committed for contempt of this Court for any breach of these injunctive Orders.

PERFECTED, SIGNED AND SEALED at Honiara this 21^st day of March 1996.”

The applicants sought to have the application heard ex parte on 1 April 1996. However, as the first respondent still has a valid order (until otherwise shown) from this court in his favour in respect of Lot 75 of LR 395/2 which is the same land from which the applicants are now seeking to restrain him from entering, I indicated to counsel for the applicants that the court would not deal with the application ex parte. The first respondent must be given the opportunity to be heard so that he would be able to defend the order made in his favour over the same piece of land.

It seemed to the Court that a restraining order if made ex parte against the first respondent in these particular circumstances would be prejudicial to him in view of the order of 21 March 1996. This cautionary principle was pointed out in Thomas A. Edision Ltd-v-Bullock (1912) 15 CLR 675 and referred to in Rolland Masa & Others-v-Kololeana Development Company Limited & Others (HC) CC361 of 1995, Judgement given on 29 March 1996. I said at pages 21-22 of the judgement:

“The practice of granting ex parte interlocutory injunction against defendants 'until trial of further order' has grown up in the courts here in Solomon Islands even in cases where there were no sufficient urgency for such an order. Prudence must be exercised by the courts before granting interlocutory injunctions on ex parte applications because, as it has been said in Thomas A. Edison Ltd-v-Bullock [1912] HCA 72; (1912) 15 CLR 679 at page 681:

“There is a primary precept governing the administration of justice, that no man is to be condemned unheard, and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence.’”

Consequently the application had been adjourned for notice to be given to the first respondent. The matter came on for hearing on 3 April 1996 and the first respondent attended the hearing, represented by Mr. Ashley of counsel.

The Court had also pointed out to Counsel for the applicants that as the first respondent, by the order of 21 March 1996, now has a restraining order in his favour, restraining others (1st and 2nd defendants in CC89/96) from entering onto Lot 75 of LR 395/2, the applicants should first show that the said order ought to be discharged or set aside before they can proceed to seek an injunction restraining the first respondent from entering onto and carrying out activities on the land. That order of 21 March 1996 was granted to the first respondent after considering the materials placed before the Court, one of which was the approval granted on 23 December 1993 to the first respondent by the Western Provincial Government to occupy the land, lot 75 of LR 395/2 under a Temporary Occupation Licence (TOL).

The applicants' case is that the first respondent has no right in lot 75 of LR 395/2 since the consent given to him by the Commissioner of lands on 24 December 1993 had been revoked on 17 January 1994. On the other hand the first respondent, pursuant to the approval to occupy the land granted on 23 December 1993 and the consent to extract logs granted on 24 December 1993, applied for a licence to fell and remove trees on the said land. The licence, TIM 2/59, was issued to the first respondent on 26 October 1995 which will expire in 2001.

It is not the purpose of this application to go into the substance of the rights of the parties and the related substantive legal issues. That will be done at the hearing of the main action. For the present purpose, what must be ascertained is the question of whether on the evidence the order of 21 March 1996 should be set aside and the first respondent be restrained from entering and carrying out activities on the land in question.

In order to see how the parties based their claims over the land, it will be necessary to refer to the various documents upon which they rely. For the first respondent, there is the letter of 23 December 1993 which is in the following terms:

“Dear Mr. Ziru

RE: TOL ON LOT 75 OF LR 395/2 MBAEROKO/ENOGHAE LAND

Further to your letter dated 18^th October 1993, I am pleased to advised (sic) that approval has been granted to you for temporary occupation arrangement on the above land, pending further deliberation by WP Executives at its next meeting.

Meanwhile, I would be grateful if you could pay to the COL your TOL fee so that you can go ahead with the development of the land.

Yours sincerely,

James Nage (Signed)

Senior lands Officer (WP)

for: Provincial Secretary

Western Province.”

and also the memorandum of consent dated24 December 1993 as follows:

“Commissioner of Forests

Ministry of Natural Resources

Honiara

APPLICATION FOR LOGGING LICENCE ON LOT 75 LR 395/2

Consent is hereby given to Ronald Ziru and his group to extract logs on lot 75 LR 395/2.

(Signed) CT

Commissioner of lands (Ag)

for: Permanent Secretary

Ministry of Agriculture and Lands.”

In addition, the first respondent has also relied on his felling licence, TIM 2/59, issued to him on 26 October 1995. That licence authorises the first respondent to cut, fell and take away timber from Lot 75 098-005-70 LR 395/2 in the MBAEROKO ENOGHAE areas only.

The applicants relied on the TOL No. 1 issued on 24 January 1994 and the memorandum from the Commissioner of Lands to the Commissioner of Forests dated 17 January 1994 revoking the consent issued to the first respondent on 24 December 1993. The TOL No: 1 authorises Pr. Joseph Douglas and Mrs Joyce Alamu,

“to occupy for the purpose of development as an agricultural small holding and extracting of logs on Lot 75 of LR395/2.....”

The memorandum of revocation is in the following terms:

“To: Permanent Secretary

Ministry of Natural Resources

Honiara

Attn: Commissioner of Forests

REVOCA TION OF CONSENT TO EXTRACT LOGS IN LOT 75 LR 395/5

Due to the formal application made by Mr. Joseph Douglas and his group prior to the application of Mr. Ronald Ziru and his group, I was directed to revoke my consent dated 24/12/93 which allowed you to issue logging licence to Mr. R. Ziru and his group on Lot 75 LR395/5.

I was further directed to issue a temporary occupation licence to Joseph Douglas and his group for the purpose of extracting of Logs in Lot 75 LR 395/5 therefore you may proceed to issue a Logging Licence to Joseph Douglas and his group in Lot 75 LR395/5.

Cherry Tanito

Commissioner of Lands (Ag)

For: Permanent Secretary

Ministry of Agriculture and Lands.”

It is not in dispute that the land is an alienated land, the perpetual title to which vests in the Commissioner of lands, for and on behalf of the Government. There is also no dispute that the first respondent was granted a TOL on lot 75 of LR 395/2 on 23 December 1993 nor is there any dispute that the first applicant and one Joseph Douglas were also granted TOL on Lot 75 of L395/2 on 24 January 1994. According to the perpetual Estate Register the area of this piece of land is approximately 305.5hectares.

As the land is a government land, any development on it by the licensees must be done with the consent of the Commissioner of Lands. In this case, both the first applicant and first respondent have the consent of the Commissioner of lands to carry out development on the land, as is evidenced by the TOL No.1, the letter of 23 December 1993 and the memorandum of 24 December 1993.

In so far as the evidence shows, the first applicant and Pro Joseph Douglas have yet to undertake the development stipulated in the TOL granted to them. One of such development is the extraction of logs from the land. The first applicant and Pr. Douglas have been given permission to do that on the land in question. However that permission must be conveyed to the Commissioner of Forests through the normal process of obtaining a licence to extract logs from the land. There is no evidence that the usual procedure of obtaining licence to extract logs from a government land had been taken by the first applicant and Pr. Joseph Douglas. If that had been done, no licence had yet been issued to them to carry out extractions of logs in the area. See paragraph (5) of the first applicant's affidavit filed on 28 March 1996.

The first respondent on the other hand applied for licence under section 5 of the Forest Resources and Timber Utilisation Act (cap.90) and was issued with the licence to cut, fell and take away timber from the said government land.

The argument for the applicants here is that the consent given on 24 December 1993 to the first respondent had been revoked by a memorandum of 17 December 1994, which memorandum had also authorised a TOL to be issued to the first applicant and Pr. Joseph Douglas. It is not the purpose of this hearing to decide the on the validity or invalidity of the first respondent’s licence. Suffice for the present application is to decide whether the first respondent was not entitled to the restraining order of 21 March 1996 and as such he should now be restrained from entering onto Lot 75 of LR 395’2.

When one looks at the consent claimed by the applicants to have been revoked, it is clear that revocation was a “Revocation of Consent to extract logs in Lot 75 LR 395/5.” As it made by the memorandum, the revocation was in respect of the consent granted on 24 December 1993 to extract logs from the land. The permission from the Commissioner of lands to the first respondent to occupy the land remains unaffected. For if the approval granting the first respondent TOL on lot 75 of LR 395/2 was the subject of the revocation mentioned in the memorandum of 17 January 1994, there is no doubt the Commission of lands would have clearly said so and would have referred to the letter of 23 December 1993. He did not. He only mentioned the revocation of his consent to extract logs contained in his memorandum of 24 December 1993.

The plain difference between the two permission or approval or consent or whatever one likes to call it, is that the permission to occupy a government land under a TOL is issued to the licensee pursuant to the provisions of the Land and Titles Act. The consent (if such is required) from the Commissioner of Lands before the issuing of a licence by the Commissioner of Forests to extract logs from a government land pursuant to section 50 of the Forest Resources & Timber Utilisation Act bears little connection to a grant of TOL on a government land. They are two different processes altogether.

In the present case, the first applicant has licence to occupy Lot 75 of LR 395/2 but she is yet to obtain a licence to enable her to extract logs from the land. The first respondent has both the licence to occupy the land and the licence to carry out logging operation on the land. If, for argument's sake, the consent to extract logs given to the first respondent had been revoked, there remains still his right to occupy the land granted under his TOL which was confirmed to have been granted to him by the letter of 23 December 1993.

In those circumstances I cannot see how the Court can issue an order depriving the first respondent of that right granted to him under his TOL. The Order of 21 March 1996 was issued by this Court taking into account his right to occupy the land as well as his rights stemming from the licence issued to him by the Commissioner of Forests.

Might I mention before leaving this judgment that the consent relied on by the applicants to have been revoked is the Consent to extract logs in “Lot 75 of LR 395/5” as stated in the Memorandum of 17 January 1994. There is no evidence before the Court to suggest that Lot 75 of LR 395/5 is the same as Lot 75 of LR 395/2 on which the first respondent was given consent to extract logs and the logging licence clearly shows.

The other argument raised by Counsel for the applicants relates to allegations that the first respondent deliberately deceived the Court into granting the injunction on 21 March 1996 in his favour in order to perpetuate his logging operation. This is an allegation in my view that has no basis as I have already pointed out that he was entitled to the order for the reasons which I have already stated.

There are other argument raised on behalf of the applicants but I feel those can be appropriately dealt with at the hearing of the main action. This hearing is, as I have already stated earlier in this judgment, to consider whether on the affidavit evidence before the court the injunction order made on 21 March 1996 should be set aside and the first respondent be in turn restrained from entering onto and carrying out his activities on Lot 75 of LR 395/2.

On the evidence presently before the Court and in the light of what I have stated in this judgement, I come to the conclusion that the injunction order dated 21 March 1996 issued on the application by the first respondent in CC89/96 should remain and the application by the applicants in this case seeking to restrain the first respondent from entering onto and carrying out his activities on Lot 75 of LR 395/2 should be refused.

The application to set aside and to restrain the first respondent is refused. I feel in the circumstances the costs of this application to be the respondent's costs in the cause to be paid by the applicants.

Order: Application refused with costs.

(G.J.B.Muria)
CHIEF JUSTICE