Paza v Nivah [2005] SBHC 163; HCSI-CC 483 of 2005 (8 October 2005)

HIGH COURT OF SOLOMON ISLANDS
At Honiara

Civil Case No. 483 of 2005

KILO PAZA AND PACIFIC CREST ENTERPRISE LIMITED

-V-

JETTY NIVAH & HEDISON NIVAH,
BULACAN INTEGRATED WOOD INDUSTRIES (SI) COMPANY LIMITED,
ATTORNEY GENERAL AND THE SHIP "MV INTER DAVID"

Date of Hearing: 8th October 2005
Date of Judgment: 8th October 2005.

Charles Ashley for the Plaintiff/ Applicant.

RULING
Court Reasons refusing ex parte application for injunctions to prevent immediate log shipment and associated orders.

Brown PJ:

Facts:

Forestry officials must presumed to have had proper documentation clearly pricing and valuing logs to be shipped

Logs deteriorate if shipping prevented

Shipping costs and arrangements in place at expense to defendants and known to plaintiffs.

No undertaking as to damages

1. Triable issues

I am satisfied there are triable issues. Triable issues/Forest and Timber Utilities Act and Investment Act appear to be satisfied, but the plaintiff claims the process was in some way flawed. The plaintiff may however be time barred and that issue goes to the balance of convenience as well as to whether a claim may lie at all.

2. Damages an adequate remedy rather than injunctive relief?

On material available - what defendant seeks to do by shipping logs could be prima facie excused, despite the plaintiff’s assertions to the contrary, for having regard to the logging licence, the defendants may presumably ship. This course of action, seeking "stop orders," denies the defendants any opportunity to be heard when prima facie, the 1st defendant has a licence to log.

2nd Plaintiff asserts it is entitled to a "stop order" by initiating process to harvest this forestry resource and expended money at that stage and thus, in fairness, should have been given a licence, it says. It was not given a licence which was given the 1st defendant. This presuppose an agreement (predating the grant of the licence to log by the Commissioner of Forests) between the plaintiff and the landowners - a breach of that implied agreement may give rise to a claim against the landowners but that claim is ring fenced as it were and may not give rights to claim against those other defendants so named in these proceedings. This issue is important when I consider the balance of convenience.

The fact the plaintiff expended money in preliminary negotiations when seeking to enter into a logging agreement with those found able to represent the landowners and thus contract, clearly may be quantified but is not "damages" in the sense understood by the authorities; a primary consideration when I look at this issue; - whether damages by a "money" award would be an adequate remedy in this case, for the plaintiff has shown no claim as owner of the logs, the plaintiff clearly cannot asset the logs belong to it.

3. On balance of convenience

The plaintiff asserts that the defendants should not be afforded the convenience of having the logs exported - they should not benefit from the illegal activities. Also if the logs were to be off-loaded the 2nd defendant should give an undertaking to market logs and pay proceeds into court to a trust account -that is the way the court should look at the plaintiff’s application.

I am not satisfied about any illegal activities; such a finding of such serious import should not be made without the other parties having had an opportunity to be heard. The confidential material from the government departments coming into the plaintiff’s hands has not been explained and may or may not comprise the whole material relevant in this case. Obviously the departments, (to be represented by the Attorney-General) when their files have been used in this fashion should explain why the plaintiff has been apparently advantaged by the free availability and use of government internal memoranda in this way.

The logs clearly have not suddenly sprung up, ready for shipment, as it were. They needed to be accessed by the making of roads and skidding trails, the provision of log points or ponds, associated machinery and equipment brought to site, log ponds and wharf facilities arranged before the trees can be felled, trimmed and scaled, inspected by forestry officers and permits for export obtained.

Yet at the deathknoch, as it were, the plaintiff now comes to stop a log shipment. No undertaking as to damages has been given. The damages suffered by the defendants if the log shipment was stopped, the ship seized or sent away could be envisaged to be very great. The trees will deteriorate for the court may presume the logs have been felled. The plaintiff does not own the trees.

The plaintiffs have not satisfied me the balance of convenience is with them.

4. Relative strength of the plaintiff and defendant case.

It is asserted that the plaintiffs do have a strong case so far as the law is concerned. I cannot see it.

The plaintiffs have not satisfied me that they have a strong case. Certainly the defendants have not been warned the plaintiff disputes their right to export logs. It does seem the plaintiffs have been disappointed by the failure of those persons identified pursuant to the Form 2 agreement and the steps taken after the issue of the Form 3 agreement, not to use the plaintiff’s resources to fell logs and market timber, but that aggrievement cannot amount to a strong case against these various defendants when the issue here, is whether or not to stop a log shipment, rather than rely on a money claim for damages if the plaintiff later shows and wins a claim against any of these defendants. The claim to injunctive relief is weak.

I refuse the application.

I direct and order that the originating process and material in support be served in accordance with the Rules and the Statement of Claim proceed in the usual way.

THE COURT