Isabel Timber Company Ltd v Eastern Development Enterprises Ltd [1999] SBHC 64; HC-CC 056 of 1999 (10 June 1999)

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HIGH COURT OF SOLOMON IMON ISLANDS

CIVIL CASE NO: 056 OF 1999

ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> ISABEL TIMBER COMPANY LIMITED

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EASTERN DEVELOPMENT ENTERPRISES LIMS LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CIVIL CASE NO: 056 OF 1999

HEARING: 9TH JUNE 1999
RULING: 10TH JUNE 1999

P. TEGAVOTA FOR THE APPLICANT/ PLAINTIFF
G. SURI FOR THE RESPONDENT/ DEFENDANT

PALMER J. INTRODUCTION.span lang="EN-GB" style="foe="font-size: 12.0pt; font-family: Times New Roman"> This is an application for interlocutory injunction by Notice of Motion filed on 17th February 1999. The Applicant relies on the affidavit of Teo Siak Kui filed 17th February 1999 and affidavit of Sir Dudley Tuti filed 22nd March 1999. In its Statement of Claim the Applicant states it held a valid timber rights licence, TIM 2/32 over that area of land situate on Isabel Island known as L.R 673 ("the Concession area"). At paragraph 6 of the said affidavit of Teo Siak Kui, a copy of the said timber rights licence is attached marked "TSK4". At paragraphs 2 and 3 of the said affidavit, Mr Kui referred to the timber rights agreement entered into with the trustees of L.R 673. A copy of that timber rights agreement is attached to the said affidavit marked "TSK1". Exhibit "TSK3" is a copy of a map of the Concession area.

At paragraph 7 of his affidavit, Teo Siak Kui deposes the Respondent had moved into the said area with its logging equipment and machinery and commenced logging operations. The Applicant alleges its rights derived from the licence have been breached and continue to be breached to the point if no injunction is imposed, at the end of the day should it win its case, its rights will have been completely destroyed.

SERIOUS ISSUES. There is no doubt in my mind there are serious issues for trial before this court. The Defendant also claims competing rights to enter, fell and extract logs from the same concession area.

PURPOSE OF AN INTERLOCUTORY INJUNCTION. The aim of an interlocutory injunction is to ensure that particular acts do not take place pending the determination by the court of the rights of the parties. There are two matters which the court takes into account when it considers granting an injunction. First, the maintenance of a position which will most easily enable justice to be done when its final order is made, and secondly, an interim regulation of the acts of the parties which is most convenient and reasonable in all the circumstances. In many instances it has been found to be most just and appropriate to preserve the position which was found to exist at the time of making of the application, this is commonly referred to as the status quo. But this is not always the case. Sometimes it may be necessary to order that an earlier position be restored or that parties arrange their affairs in some other way which is more in accordance with the requirements of justice.

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ES AN ADEQUATE REMEDY. Bearing these matters in mind I now turn to the principles this Court should consider when addressing the question of whether an injunction should be granted or not. The first of these in the context of this case is whether damages will be an adequate remedy. Put another way, is it just, in all the circumstances that a plaintiff should be confined to his remedy in damages? (See Evans Marshall & Co. Ltd v. Bertola S.A [1973] 1 W.L.R. 349 at page 379H). There are two limbs to this question as put in American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396. First, the court has to consider whether if the plaintiff were to succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of trial. If damages is not an adequate remedy and the defendant not in a financial position to pay, no interlocutory injunction should be granted, however strong the plaintiff's claim appeared to be at that stage.

The second limb is if damages would not be an adequate remedy for the p plaintiff should he win his case, the court should consider if the defendant were to win his case at the end of the day, whether he would be adequately compensated under the plaintiff's undertaking as to damages for the loss that would be sustained by being prevented from doing so between the time of the application and the time of trial. If damages in the measure recoverable would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason to refuse an interlocutory injunction.

THE FIRST LIMB. Would the Applicant be adequately compensated by an award of damages for his loss? With respect, I find I have to answer this in the negative. The reason lies in the rights vested in the licence which the Applicant claims to be entitled to. It is as succinctly put by Mr Tegavota in his submissions to court that the Applicant seeks to protect its right to fell, harvest and export the said logs and make a profit out of it. An award of damages would not adequately compensate the Applicant for the losses arising from its rights as vested in the licence, to fell, extract and export the logs as it desires.

THE SECOND LIMB. This relates to the question whether damages under the Applicant's undertaking for the loss sustained by the Respondent as a result of being restrained from carrying out its planned activities would be sufficient. In my respectful view, this can be answered in the affirmative. Not only would damages be adequate, but the Defendant's rights to fell, extract and export would still have remained intact and simply re-continued.

DELAY. Has there been delay? - Vigilantibus non dormientibus jura subvenient - a plaintiff should not sleep on his rights. The operations by the Defendant were recommenced in or about November 1998. This application was commenced by Writ of Summons on 17th February 1999, some three months later. The licence of the Defendant however had been issued way back on 13th July 1995. The Applicant was aware of the existence of the Respondent's licence well before November of 1998. If it was concerned about the validity of its licence why had it not taken action earlier.

Whilst I appreciate there has been some delay, it is my respectful view that delay should more properly be considered with respect to the re-commencement of operations in November of 1998. It should be noted that the operations of the Respondent had been held up due to challenges by Landowners of the validity of the Respondent's licence in contrast to the Applicant's licence. That would accordingly have accounted for the reasons why no action was taken by the Applicant. Now that litigation had been discontinued as a result it seems, of some landowners who had previously been opposed to the operations of the Respondent changing sides, the Applicant was entitled to commence action against the Respondent. Respectfully, I am not satisfied the delay here can be described as inordinate or inexcusable.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Also in balancing the rights of the Appliagainst that of the R Respondent, and the losses and prejudice which may be occasioned if an injunction is imposed, I am not satisfied the delay factor is sufficient to make me change my mind about the appropriateness and justification of an injunction order at this point of time.

ACQUNCE. The same reasons given above equally apply here and especially in balancing the scales of justice in this case. Whilst the Applicant may have to a certain extent sat on his rights I am not satisfied that disentitles it from the imposition of an injunction in the circumstances of this case. The balance of justice taking everything into account favours the imposition of an injunction even at this point of time.

ORDERS OF THE COURT.

1. &nbssp; nbsp; ON THE PIAINTILF F A WRITTWRITTEN UNDERTAKING FOR DAMAGES, THE DEFENDANT, ITS SERVANTS, AGENTS AND OR CONTRACTORS ARE TO BE RESTRAINED FORTHWITH FROM CARRYING OUT ANY FURTHER LOGGING AND RELATED ACTIVITIES UNTIL TRIAL OR FURTHER ORDER, EXCEPT AS FOLLOWS:

pan lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman"> (a) &nsp; & p; Top; To remove ande and export all logs felled to date of this order;

(b) Pay 10% of th FOBe aluthof those log proceeds into an interest bearing deposit account in the names of the Solicitors for thties;n>

p class="Mss="MsoNormal" style="text-indent: -34.9pt; margin-left: 105.8pt; margin-top: 1; margin-bottom: 1"> (c) &nbp; &nnbsp; The Defendants shal shall be entitled to remain in the said concession area for the purpose of maintaining their machinery, equipment, buildings, roads, log ponds, camp site ny otroper thingshings in t in the sahe said concession area;

2. &nnbsp;;&nspp; Tsp; THE DEFE DEFENDANT SHALL PROVIDE WITHIN THIRTY DAYS A STATEMENT OF ALL LOG SPECIES, VOLUME, QUANTITY, NUOF SHTS ANUE OF ALL LOGS REMOVED FROM THE SAID CONCESSION AREA TO DATE OF T OF THIS OHIS ORDER.RDER.

3. COSTS IN THE CAUSE.

THE COURT

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