Kalena Timber Company Ltd v Otto [2005] SBHC 66; HCSI-CC 229 of 2005 (26 April 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 229 of 2005.

KALENA TIMBER COMPANY

-v-

DELESO OTTO, VALE ORO, ESAU KADU, NELSON LEKELALU AND NELSON NEKETE, (representing their clan) AND NARUPIQE K. WYCLIFFEE, M. VALE, L. VIQOPALA C. MUTASOLE D. PIKOEE AND NELSON NEKETE (representing themselves)

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 26^th April 2005
Date of Ruling: 26^th April 2005

G. Suri and M. Tagini for the Applicant

RULING

Kabui, J. This is an ex parte application filed by the Plaintiff/Applicant on 25^th April 2005 for the following orders-

1. Until further orders, an order restraining the First and Second Defendants by themselves, their agents, associates, friends, and tribesmen from disturbing, by any means, the Plaintiff’s use of Kuava log pond or any part thereof and from interfering with the logging of the Plaintiff.

2. An order restraining the First and Second Defendants from interfering, disturbing or sabotaging the Plaintiff’s export of logs on MV Iner Pride.

3. The costs of and incidental to this action be paid by the Defendants.

4. Further order or orders the court deems [meet].

This application is supported by an affidavit filed on the same date as above by Mr. Ketsiong.

Brief background.

The Applicant is a logger carrying on logging operation on Vella La Vella Island in the Western Province. The logging operation is being done on Kuri Kuri Sarapaito land. The Applicant also has a log pond on Kuava land, allegedly owned by the Defendants in custom within Sarapaito land. The Applicant’s presence on the Kuri Kuri Sarapaito land is sanctioned by a Standard Logging Agreement signed on 25^th July 2002. A licence (A10106) was issued to the Applicant on 9^th August 2002 under the Standard Logging Agreement authorizing it to enter Kuri Kuri Sarapaito land and carry out logging activity. The parties also signed a separate Supplementary Agreement. There was also a Log Pond Agreement (the Agreement) signed by the parties. By letter dated 19^th April 2005, the 2^nd Defendants informed the Applicant of their intention to renegotiate the terms of the Agreement and called for a suspension of the export of logs pending the review of the Agreement.

The relief being sought.

The Applicant is seeking an interim injunction to stop the 2^nd Defendants from suspending the export of logs pending the hearing of its case filed on the same date as above. The subject matter of the dispute are the terms and conditions of the Agreement which, according to the 2^nd Defendants, are not satisfactory. The 2^nd Defendants are said to be members of the same tribe whose trustees signed the Agreement. The action by the 2^nd Defendants seems to point to the conclusion that they did not sign the Agreement in the first place. Alternatively, the trustees who signed the Agreement had not been authorized by them to sign the Agreement. That is obviously an internal matter between them to be sorted out in the Chiefs forum, if needs to be done. The typical interim injunction application is a stop gap remedy to prevail until the main issues are dealt with by the court. That is, maintaining the status quo to prevent irreparable damage to the interest of the Applicant for that remedy and thus applying the balance of convenient test to reach a conclusion. The triable issues in this case, if anything, are the membership of the same tribe that signed the Standard Logging Agreement, the Supplementary Agreement and the Log Pond Agreement and the rights of the Applicant as the lessee in the Agreement. The ownership of land on which the log pond is located or Kuri Kuri Sarapaito land for that matter or the membership of any tribe in that area of land are matters for the Chiefs to determine. It may well be a triable issue but one this Court cannot entertain for lack of jurisdiction as stated in Simbe’s case often cited in this jurisdiction. The rights of the Applicant as a lessee under the Agreement is superfluous like saying by declaration that a house has a roof. A triable issue must be one that entails the determination of legal rights that are in dispute. There is nothing wrong with the Agreement. What is in issue is whether it can be varied by the 2^nd Defendants by mutual consent of the parties to it. If the proposed variation cannot be agreed, then it cannot be varied. If the 2^nd Defendants are not parties to the Agreement, then they cannot vary the Agreement. They must first have to establish themselves as landowners and then negotiate a fresh Agreement with the Applicant. I do not think there are triable issues in this case which this Court can determine at a later date to be fixed for the reasons stated above. Such is enough to enable me to dismiss this Application.

However, the gist of the Applicant’s fear is the likelihood of the 2^nd Defendants taking the law into their own hands and physically going to the camp and stopping the loading of the logs from being loaded for export. The appropriate remedy for such a situation is an injunction not of the kind asked for but a “quia timet” injunction, which literally means “since he fears.” (See Arosi Vision Link Services and Another v. George Mae and Suhidangi, Civil Case No. 171 of 2003). The Applicant has not asked for this remedy, and even if it has, there is not sufficient evidence to sustain the fact of fear. Exhibit NK5 being a letter dated 19^th April 2005, addressed to the General Manager of the Applicant, does not in any way suggest that threat was impending although there is a remote possibility to the point of speculation. In fact, the letter was merely suggesting that it was advisable to suspend loading until the Agreement was reviewed. The Applicant has not responded to the letter and so it can be assumed that the Applicant is not willing to talk with the 2^nd Defendants about the matter of reviewing the Agreement. There are also no negative covenants in the Agreement which the 2^nd Defendants have breached which the Applicant is seeking to enforce by injunction. (Again, see Arosi Vision Link Services and Another v. George Mae and Suhidangi cited above). All in all, this application cannot be sustained on any of the above grounds and is dismissed. I make no order as to costs.

F.O. Kabui
Puisne Judge