Boso v Commissioner of Forests [2005] SBHC 164; HCSI-CC 391 of 2005 (25 October 2005)

HIGH COURT OF SOLOMON ISLANDS
At Honiara

Civil Case No. 391 of 2005

RICHARD BOSO AND HOPEFUL PIOSASA

-V-

COMMISSIONER OF FORESTS
(First Defendant)
JETTY NIVAH AND HEDISON NIVAH INTEGRATED DEVELOPMENT COMPANY
(Second Defendant)
and PACIFIC CREST ENTERPRISES LIMITED
(Third Defendant)

Date of Hearing: 25th October 2005
Date of Judgment: 25th October 2005.

Andrew Radclyffe for the Plaintiff/Applicant
Attorney General for the 1st Defendant
Andrew Nori for the 2nd Defendant
Charles Ashley for the 3rd Defendant

Motion for injunctive orders

Brown PJ:

The Plaintiffs come seeking orders restraining the second defendant Jetty Nivah and Hedison Nivah (trading as the Nivah Integrated Development Company)( "the company") from carrying out logging and associated operations on central Parara land in the Western Province.

The plaintiff also asks this court order that the proceeds of sale of logs felled be deposited into an account in the names of the plaintiffs and the second defendant’s solicitor until further order. This urgent application has come about by reason of the fact that has been logging carried out by Bulacan it would seem, as the contractor for the second defendants, on land known as central Parara claimed by the plaintiffs.

Mr. Radclyffe for the plaintiff has pointed to material in his client Richard Boso’s affidavits and Mr. Nori has relied on material that he has filed, to show, it would seem, that his client has a valid logging agreement and a licence to log in respect of land described by the Commissioner of Forests as blocks 2 and 4 at central Parara. Those blocks which accord with a form 1 application, may be described as "Ngaki, Momou, Vilorae and Pitikole point and Nepia Momou" customary land. Having read the Commissioner of Forest’s affidavit the Commissioner makes the point that the form 1 application in respect of blocks 2 and 4 does not cover operation blocks 1, 3, 5, 6 on a map which he annexes to his affidavit. In fact the Commissioner of Forest asserts the current operation by the second defendant Jetty Niva and Hedison Niva and the contractor Bulacan under a particular logging licence has been done in operational area blocks 1,3 5 and 6 outside the concession areas that I have mentioned in blocks 2 and 4. So clearly there is an issue about whether the area described as central Parara can be treated as one for the purposes of this application today. Mr. Nori’s clients have not had an opportunity to respond to the material in Mahlon Ali’s affidavit on which I have relied and I am satisfied that there is a serious issue to be tried for that one area; central Parara; may include the logging blocks 2 and 4 and whether they exclude the logging blocks 1, 3 5 and 6 which apparently Bulacan has entered upon and logged. Whether in fact that has happened is yet to be seen but it is in my view is a serious issue which needs to be determined.

The other serious issue Mr. Radclyffe for the plaintiff says stems from Madou village meeting where chiefs had been called pursuant to a CLAC directive. Hedison Nivah refusal to attend is a matter of some importance for at that meeting the various chiefs determined the appropriate persons entitled to speak for the landowners about that area. I am satisfied as a result of the CLAC finding and orders in the absence of any directions by this court or appeal pending prima facie the CLAC order and its direction are valid. They and the Commissioner of Forests favour the plaintiff.

Another issue

Whether the apparent change in attitude since Napia Niva’s time in 1989 seeking John Rove’s support for the form 1 application to the present day and the disassociation by Hedison Nivah from the convocation of Chiefs at Madou village meeting on the 23rd June this year reflects a real loss of authority or not in those two second defendants Jetty Nivah and Hedison Nivah a loss of authority referrable to the argument that obviously has arisen following the CLAC determination and directions to identify appropriate representatives of land owners. So there again there is a serious issue to be tried.

I am satisfied that the plaintiff has made out a case in relation to those three serious issues to be tried.

Another issue which Mr. Ipo raises is whether the absence of the consent under section 19 of the investment act before logging operations is a relevant consideration which I need take into account today. Mr. Nori says it’s not for the very good reason that it was never pleaded by the plaintiff and of course Bulacan was not joined and have no opportunity to be heard. But the issue does arise when I have regard to the letter which is annexed to Mr. Ali’s affidavit already read in this cause for in that letter there is a clear referral to the application by Nivah Integrated Development for approval to a technology agreement between the Development Company and Bulacan. Again that issue is one that deserves further argument but I am not prepared to make orders in favour of the plaintiff on that issue alone for there is some doubt as to whether or not this technology agreement has been approved but of course there is no evidence to support the assertion although I am prepared to accept from the bar table that such approval has been granted.

The issue which raises me some concern however is whether I should expect an undertaking as to damages from the plaintiffs in these circumstances. Mr. Nori says the plaintiffs are not helpless landowners the very fact of their form 1 application years ago puts them in a position as potential loggers and persons of substance. Mr. Radclyffe is not prepared to give an undertaking on behalf of his clients. Firstly he says undertakings should not be given where there may be some doubt as to the ability of the undertakers to honour such an undertaking and secondly he says the undertakings are not essential in logging matters in the Solomon Islands. So far as the first aspect is concerned as I have said previously the absence of an undertaking to my way of thinking enables plaintiffs seeking stop orders to have a free kick at various defendants, free in the sense that they are not really subject to any financial risk if they loose. Mr. Radclyffe argues forcefully that these particular plaintiffs have every right to seek injunctive orders and if I follow as I should the Court of Appeal comments on undertakings as to damages I should not call for nor expect an undertaking in these circumstances. I must take account of the various Court of Appeal comments which if my memory serves were obiter but nevertheless guide me in this case today.

The absence of the undertaking is not fatal to the plaintiff’s application. There is the question in the absence of further factual matters dealing with the application to the foreign investment review board for approval to the technology agreement as to whether or not the second defendants has acted illegally. I don’t believe that is an issue I need to address and I have said in a round about way earlier I don’t propose to treat that as a serious issue to be tried at this time. It may be something that the plaintiffs may address on the hearing of this case if it cannot be resolved by negotiation before trial.

I am satisfied however from reading Mr. Ali’s affidavit that there is a real issue in relation to the area that has been entered upon by Bulacan and logged an issue that supports the plaintiff’s application for an injunction. Clearly the matter argued by Mr. Nori that the area councils findings go nowhere for the 2000 Amendment Act does not pick up as it were those findings is one which has caused me some concern. For in 1989 it appears the area council was happy with the plaintiff’s application and a form 1 subsequently issued by the Commissioner of Forests on the basis of that area council’s earlier finding. That form 1 agreement is dealt with in Mr. Richard Boso’s second affidavit. Mr. Nori quite rightly points to the fact that the Commissioner of Forest has apparently acted on advice including amongst other advice a letter by Suri dated the 28th January in which the status of the 1989 area council’s decision was raised. I am satisfied that the information by the Commissioner of Forest of that earlier finding so as to afford those representatives in the form 1 including the plaintiffs, was a finding made by the Commissioner in good faith. Whether it is in fact a proper finding in terms of the legislation can be left for another day but clearly it is an issue to be tried and a serious issue.

I am satisfied then that there is a clear overlap as it were of persons purporting to represent land owners and logging areas. I am further satisfied that the Commissioner of Forests acknowledges that overlapping. I am satisfied that there appears to be on Mr. Ali’s affidavit, logging of an area that Mr. Ali’s says, was not included in the concession area given the second defendants and that assertion, a serious issue, is sufficient to afford the plaintiff the rights to his injunctive orders.

Clearly on the balance of convenience the money should be injuncted for if it is dissipated the plaintiff may well be left without recourse.

I make orders in terms of the application of the 29th September last paragraphs 1, 2 and 4. Those orders may be taken out forthwith.

So far as order one is concerned that order may be made as it stands. So far as order 2 is concerned that order may be made and varied by inclusion of the words "that the duties and charges payable to the Government be paid before the balance is paid into the Trust account.

These orders stand until the hearing of this cause or until consent order. I further direct that the Registrar shall on either parties application fix the proceedings for trial in accordance with the rules as an expedited hearing as early as possible.

BROWN PJ
THE COURT