Iputu v Lasi [2006] SBHC 54; HCSI-CC 483 of 2006 (12 December 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 483 of 2006

ELIJAH IPUTU, MESACH TIVURU, JEREMIAH PIKO and ALICK NGIRA

-v-

SAMUEL LASI & NONULU LANDOWING GROUP & MEGA CORPORATION LIMITED AND ATTORNEY GENERAL

Date of Hearing: 12 December 2006

Date of Ruling: 12 December 2006

Dwayne Tigulu for the Plaintiffs

RULING
on ex parte application for injunctive orders stopping logging

Brown J: An ex parte summons is normally one where the urgency is such that notice cannot reasonably be given the defendants so that irreparable harm will be avoided were an order to be made and it is clear that the change to the status quo is justified in the particular circumstances. The applicant has not satisfied me on either aspect. I gave short reasons on the day and now publish my reasons.

Mr Tigulu filed his writ of summons and statement of claim on the 1 December so that the requirements of 0.53 r8 appear to have been met when the Court accepts that the statement of claim supports a prima facie cause of action.

But here Choe land which the plaintiff wants preserved is the subject of the plaintiff’s own application for logging. It is clear then that the forest resource is to be logged so that the issue of protection of the resource is not a live issue in these proceedings. The issue on the material before me is whether the various defendants have encroached upon Choe land in their logging of the adjacent Nono-ulu land for it may be there is overlap of logging areas. But that is an argument of facts and since, as Mr Tigulu says, there is no licence to log nor technology agreement in existence over Choe land, this Court should not accept the presumptions of fact, the encroachment, which the plaintiff seeks the court to draw in the absence of the opportunity to the various defendants to be heard.

There is then the question of balance of convenience where the logs, if show to have been taken from land of the plaintiff, can be sufficiently identified so as to the valued for the purposes of the proceedings. Once felled, the value can easily be ascertained and damages assessed. The interference of the Court is not justified when the alternate remedy of damages is available. The argument that the Court order should firstly be obtained since it is difficult to serve the various defendants is not an argument which will tilt the balance of convenience in the applicant’s favour when there is a clear alternative in damages, for continuing breaches. I need make no finding on the actual difficulty in service but it is wholly likely the difficulty in service of any ex parte injunctive orders would be overcome if an order was to be made.

The other issue which appears from the affidavit of Mr Hiva read in support is that apparent refusal of the Commissioner of Lands to interfere. That apparent refusal cannot go to support this applicant’s right to claim an injunction for the material matters for consideration by this court of interim injunctive relief, whilst encompassing the Commissioner’s acts or inaction cannot be said to be the same matters which the Commissioner has been asked to consider, and thus, the acts of the Commissioner is but part of the material which this court must look at.

In the circumstances I am not minded to exercise my discretion and grant interim injunctive orders, without having given the various defendants an opportunity to be read.

The ex parte summons is refused. It shall stand over to be heard on a date to be fixed by the Registrar as an interparty summons.

I direct service of all the accompanying material with the originating process in accordance with the Rules.

THE COURT