Keuni v Kia-Katova Area Council [2000] SBHC 63; HCSI-CC 382 of 1999 (26 January 2000)

CC No 382, 99, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 382 of 1999

IRENE KEUNI, MARGARET BELAMA & SELWYN DIKA

-v-

KIA/KATOVA AREA COUNCIL AND OTHERS

High Court of Solomon Islands
(PALMER J.)
Civil Case Number 382 of 1999

Hearing: 25th January 2000
Judgment: 26th January 2000

G. Suri for the Plaintiff
E. Manetoali for the First Defendant
P. Tegavota for the Second Defendant
C. Ashley for the Third Defendant

PALMER J.: The Plaintiff seeks by Amended Summons filed 19 January 2000 interlocutory orders inter alia, restraining the Second Defendants, their agents, servants, or contractors from further felling, harvesting and extracting timber from within the Rereona/Rogataro land (also identified as LR 671) pending determination of this case.

It is not in dispute there are triable issues before this Court. These pertain to allegations of breaches and non-compliances with the provisions of the Forest Resources and Timber Utilisation Act (Cap. 40); in particular sections 8(2) and (3) and 10(1), and questions as to the validity of the timber rights and licence subsequently issued.

As to the question whether damages would be an adequate remedy, this can be rephrased as whether the Plaintiffs should be confined to their remedy in damages? One of the orders sought by the Plaintiffs is an order seeking to prohibit any further felling of trees on LR 671. The Plaintiffs object to any further felling and removal of trees on LR 671. One can deduce from this that the Plaintiffs are not merely concerned about the monetary benefits that logging would bring, but the conservation of their trees and forests, rivers and streams, the wildlife and land in its natural virgin state. To that extent it is not too difficult to conclude that damages would never be adequate to address the concerns of the Plaintiffs. I accept nevertheless, monetary damages would go to some extent to compensating the Plaintiffs for the losses that might be incurred as a result of the logging activities of the Second Defendant and that the Second Defendant would be in position to make some payments in damages to the Plaintiffs. It is not disputed by the Plaintiffs that ownership of LR 671 had been correctly identified as the Kokopi Clan, of which both the Plaintiffs and the Third Defendants are members of. The essential dispute of the Plaintiffs pertains to the identification of the Third Defendants as the persons lawfully entitled to represent the Kokopi Clan and therefore entitled to grant timber rights over LR 671. Not only do they claim this was erroneous in custom but that they were never given opportunity pursuant to the requirements set out under sections 8(2) and (3) and 10(1) of the Forest Resources and Timber Utilisation Act to challenge these claims. These will be addressed in detail at trial. On the other hand, it is clear any losses that might be incurred by the Defendant as a result of any injunction that might be imposed should the Defendants win this case at the end of the day, may not be compensatable in damages by the Plaintiffs. Even to this point of time, no undertaking for damages had been offered by the Plaintiffs. To that extent the question of adequacy of damages in my respectful view slightly favours the Second Defendant.

On the question of balance of convenience, the Plaintiffs obviously would contend that the status quo to be maintained is that prior to the logging operations on the land. The Defendants would contend it should be the current operations already in full swing on LR 671 since August or September 1999. The problem faced by the Plaintiffs at this juncture is the fact that until the issues raised are finally determined, it is not in dispute that the Third Defendants are also members and close relatives of the Plaintiffs, in particular Irene Keuni and to that extent do have some rights as members of Kokopi Clan over LR 671. The hurdle yet to be overcome is the fact that there had been a determination by the Kia/Katova Area Council that the Third Defendants were the persons rightfully entitled to grant timber rights as opposed to the claim of the Plaintiffs. The maxim “omnia praesumuntur solemniter esse acta” (all things are presumed to have been done rightly) applies to this case. It might turn out at trial that the contentions of the Plaintiffs are correct, but at this point of time, it is not proper for this Court to go into the merits of those claims without all the necessary evidence and documents before it and arguments of Counsels. Again it would seem unfortunately for the Plaintiffs, the balance of convenience does not go in their favour.

Some argument was raised over the question of delay. Whilst I do not give much weight to this factor, I accept it does not help the case of the Plaintiffs. The explanations offered unfortunately do not assist the Plaintiffs because the application for restraining orders was lodged only after operations had already commenced. The Plaintiffs knew well before operations commenced of the impending logging operations on LR 671. It would have assisted their case had appropriate action been taken promptly.

As to the strength of the parties case that does not take the matter any further either. In my respectful view, the application for injunction should be dismissed. This disposes of the orders sought under paragraphs (i), (ii) and (iii) of the Amended Summons. As to the orders sought in paragraphs (iv), (v) and (vi), I take the view the matters raised in the affidavits of Irene Keuni filed 17 November 1999 and Selwyn Dika filed 19 January 2000 in support of this application, show that despite the fact the orders to restrain the Second Defendant from carrying out any logging operations on LR 671 might have failed there is cause for concern that if the proceeds to date are not accounted for and restrained, further injustice might be committed against the Plaintiffs by the Third Defendants over the question of distribution of the shares of the Landowner (in this instance, Kokopi Clan). One of the live issues amongst the members of the Kokopi Clan is the question as to who are the persons in custom to represent the Clan. This would seem to be an internal matter amongst the Clan itself to sort out and and resolution of which might assist in sorting out some of the disputes and disagreements amongst the Clan itself. If the Clan members cannot solve this matter then it would seem to be a simple matter for the Chiefs in that locality to sort out. Paragraph (v) of the Amended Summons seeks order for all proceeds of logs exported to be paid into an interest bearing account in names of Solicitors for the parties. In my view, the proper order would be for 15 % of any proceeds of logs exported hereafter to be paid into an interest bearing deposit trust account in the names of Counsels for the Plaintiff and Third Defendants. As to paragraph (vi) it would be premature to grant this order at this point of time. The question as to whether damages would be due to the Plaintiffs should they win their case at the end of the day is a matter which can be addressed during trial. There is no suggestion the Second Defendant would not be in position to meet any damages which might be awarded to the Plaintiffs should they win their case at the end of the day.

ORDERS OF THE COURT.

1. DISMISS APPLICATION FOR RESTRAINING ORDERS.

2. ORDER SECOND DEFENDANT TO PROVIDE WITHIN THIRTY DAYS A STATEMENT OF ALL LOG SPECIES, VOLUME, QUANTITY, NUMBER OF SHIPMENTS AND VALUE OF ALL LOGS REMOVED FROM REREONA / ROGATARO LAND (LR 671) AND TUSA LAND (LR 672) AND THE AMOUNT FROM THE PROCEEDS PAID TO THE THIRD DEFENDANTS TO DATE.

3. ORDER THAT 15% OF THE SALE PROCEEDS OF ANY LOG EXPORTS HEREINAFTER MADE BE RESTRAINED AND PAID INTO AN IBD ACCOUNT IN THE NAMES OF THE PLAINTIFF’S AND THIRD DEFENDANT’S SOLICITORS PENDING TRIAL.

4. DENY ORDER SOUGHT IN PARAGRAPH (VI) OF THE AMENDED SUMMONS FILED 19 JANUARY 2000.

5. COSTS IN THE CAUSE.

THE COURT