Somma Ltd v Hoda [1999] SBHC 86; HC-CC 271 of 1999 (2 September 1999)

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HIGH COURT OF SOLOMON ISLANDS

HC - Civil Case. No. 271 of 1999

SOMMA LIMITED

V

BEN MATO'O HODA AND OTHERS

In the High Court of Solomon Islands
(FRANK KABUI, J)
Civil Case. No. 271 of 1999

Hearing: 1st September, 1999

C. Ashley for the Plaf

JUDGMENT

(Frank Kabui J): This is an ex parte application by the Plaintiff for the orders set out in the Ex parte Summons filed on 18th August 1999 in the High Court Registry. The Orders being sought by the Plaintiff are:-

1.  p; &bsp; That the Defen,antsir agen agents, relatives and servants be restrained from interfering with the Plaintiff's logging operations on West Makira;

2. &nnbsp;; nbsp;nbsp;&nbp; That the Defes forthwith rith remove any road block that interferes with the Plaintiff's logging operations;

3. ;&nbssp;&nbs;&nbs; Cop; Cost be reserved e trhe trial Judge; and

class="MsoNormalormalormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 0; margin-bottom: 0"> 4. &nbs; &nbbp;&nnbp;& Anp;further oher orders the Court deems fit.

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The Facts

The Plaintiff is a Company locally incorporated under the prov provisions of the Companies Act (Cap. 175). It is the holder of a Logging and Milling Licence No. Tim 2/36 issued to it on 21st December 94 by the Commissioner of Forest Resources. The licence covers a number of customary land areas including Ward 5 in the Makira Province. The customary land areas in Ward 5 are BIAARO and MANUGERE customary land areas owned by the ARAHA CLAN. The standard logging Agreement between the ARAHA CLAN and the Plaintiff was signed in Honiara on 20th September, 1994. Prior to this Agreement was a Technology Agreement signed on 27th May, 1994 between the Plaintiff and Goodwill Industries Limited (the contractor). The contractor does the logging operation for the Plaintiff for reward the particulars of which are set out in the Technology Agreement. On or about 10th June, 1998 the Defendants obtained the sum of $88,142.40 from the Plaintiff on the ground that an entity called "Markwest" was the legitimate representative of the landholding group of Ward 5. This was subsequently disputed by the trustees of the ARAHA CLAN whereupon the Plaintiff paid to them the sum of $35,365.50. On hearing this, the Defendants who comprise "Markwest", blocked all logging access road within Ward 5. This blockage of access roads commenced on 27th July, 1999. The result of course is that the Plaintiff is unable to ship out 100 logs in its log pond and another 100 logs in the bush ready for hauling to the log pond. An attempt to ship out 700 logs had to be postponed as a result of the Defendants' action.

The Law

The law on interlocutory injunctions is well settled in this jurisdiction. I need not repeat it here in great detail other than restating the main principles that govern the granting of interlocutory injunctions. There must of course be evidence of a serious issue to be tried. That is there must be a triable issue than being a vexatious or frivolous matter. I find that there are triable issues in this. There is of course the issue of customary land rights in the customary land areas in Ward 5 between the ARAHA CLAN and those who are represented by "Markwest". There is the issue of fraud alleged against the Defendants. There is also the issue of privity in contract. The next thing is to find out where the balance of convenience lies. This exercise depends on three things. First is assuming that the interlocutory is denied in favour of the Defendant, and supposing the Plaintiff wins his case, would the Plaintiff be adequately compensated for its loss? If the answer is yes, then an interlocutory injunction is not granted. Second is if an interlocutory injunction is granted on the undertaking that the Plaintiff would abide by any order for damages that may be made by the Court, would the Defendants be adequately compensated for their loss? If the answer is in the affirmative, then an interlocutory injunction would be granted. Third is that if there is a doubt in the mind of the court, then all other factors must be taken into account bearing in mind the need for keeping the status quo at the time of the Defendant's action. If all these steps have been taken and yet doubt still remains in the mind of the Court, then the comparative strength of each of the party's case must be taken into account upon the evidence before the (Court). See Nelson Meke v Solmal Construction Company Limited (Civil Case No. 44 & 45/82).

Evidence in this Case

Obviously, in case Plaintiff would stand to lose a lot of money if the the logs in the log pond are not sold in the overseas market. This is quite clear from the affidavit evidence of Mr. Tohi, the General Manager of the Plaintiff. On the evidence before me, I doubt the Defendants would adequately compensate the Plaintiff if I deny the Plaintiff the injunctive order sought by the Plaintiff. In this case, the Plaintiff has said nothing about its ability to provide an undertaking to abide by any order for compensation that may be made by the Court. However, even in the absence of an undertaking on the part of the Plaintiff, any loss by the Defendants would most likely be met by the Plaintiff. The number of logs already felled and are or about to be ready for sale is considerable not forgetting that the Plaintiff's licence expires in year 2009 there being scope for the Plaintiff's ability to pay for any damages that may be incurred as a result of a grant of an interlocutory injunction. It would appear from Exhibit KT8 to Mr. Tohi's affidavit filed on 18th August, 1999 that the Defendants are persons within Ward 5 and are obviously related to the ARAHA CLAN in some way or else they would not have raised their views and taken action. I would say that the balance of convenience lies in granting an interlocutory injunction in favour of the Plaintiff in this case. This interlocutory injunction remains in force until the inter partes hearing is completed or until further order of the Court. I therefore grant the interlocutory injunction sought in Order 1 in the Plaintiff's Ex parte Summons.

O2 being sought in the Ex parte Summons is obviously a requerequest for a mandatory injunction. This Order is obviously supplementary to the interlocutory injunction I have granted above for obvious reason. That is to say, without the removal of road block by the Defendants, the Plaintiff would not be able to go about its business in getting the logs to the market for value. At pages 486 - 487 of EQUITABLE REMEDIES Injunctions and Specific Performance, First Edition, 1971, I.C.F. SPRY says,

"I cases of this nature onee one of the most important circumstances which will be taken into account by the court is the degree of probability with which it appears to be established that the plaintiff will ultimately succeed at the final hearing. The stronger is the case of the Plaintiff that the matters complained of are unlawful, the more likely it is that it will be found to be just and equitable that his interests be protected by the immediate issue of an injunction. Other matters of particular importance are, on the one hand, the ease or difficulty with which there can be compliance with a mandatory order and the extent of hardship which compliance will cause the defendant, and, on the other hand, the nature of the injury and inconvenience which will be caused to the plaintiff if he does not obtain protection at once. The strength of claims of hardship by the defendant will ordinarily be diminished, although they will by no means become irrelevant, if he has acted with the knowledge that his actions are unlawful, or if he has hastened his actions deliberately in order to forestall the commencement of proceedings or the making of an order, or if he has avoided service of documents upon him, whilst proceeding with the unlawful acts in question. Thus in Daniel v Ferguson it appeared that after the defendant discovered that an injunction would be sought against him he caused a large number of men to work day and night so as to complete, as far as possible, his wrongful enterprise before an order could be made against him; and he was compelled by mandatory injunction to restore the status quo. And similarly, claims of hardship on the part of the defendant will be given little weight indeed if it appears that the acts which are in question were performed in breach of a prior order of the court.

Ordinarily, nonethelesseless, it must always be borne in mind that because what is sought in cases of this nature is an order requiring, not simply abstention from actions of a kind sought ultimately to be perpetually enjoined, but rather the taking of positive steps for the removal of structures or for the restoration of a particular state of circumstances, so that an expenditure either of money or of effort will be needed in order that there be compliance, the plaintiff will generally be required to establish strong considerations of continuing or imminent hardship or inconvenience, so that it appears to be just and reasonable to grant him interlocutory mandatory relief."

Applying these principles to this case, it is obvious there is a need for ther the removal of the road block set up by the Defendants. I think it is just and reasonable to grant a mandatory injunction also in this case. I therefore grant Order 2 sought in the Plaintiff's Ex parte Summons. Costs be reserved.

F. O. Kabui
Judge