Tahoria v Laumare Development Company [2008] SBHC 45; HCSI-CC 261 of 2008 (26 August 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 261 of 2008

ULALIA TAHORIA and FRANCIS CHULUI
First Claimants

AND

LAUMARE DEVELOPMENT
Second Claimants

-V-

LAUMARE DEVELOPMENT COMPANY
First Defendant

AND

ELITE ENTERPRISES (SI) LTD
Second Defendant

AND

ATTORNEY-GENERAL
Third Defendant
(representing the Commissioner of Forest)

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 21st August 2008
Date of Judgment: 26th August 2008

Global Lawyers (M. Tagini) for the claimants
Pacific Lawyers (B. Titiulu) for the second defendant
No appearance by the first defendant.
No appearance by the third defendant.

Palmer CJ.:

This is an application for interim injunction to inter alia restrain the first and second defendants from continuing with logging activities currently proceeding in Chocho, Vatugao and Komibo customary lands ("the concession area").

The first claimants say they are members of the Lakwili tribe which are the landowners of timber rights over Vatugao customary land. They say they were two of the persons identified as lawfully entitled to grant timber rights over that land. The other three persons identified were Elijah Legani, John Suga (jnr), and Victor Chobo.

They were identified as representatives following a timber rights hearing on 10th March 2004. On 1st April 2004 a certificate of customary ownership (Form II) was issued in their favour. On 24th October 2004, a timber rights agreement was executed in respect of Vatugao land but signed by only two of the grantors identified. This raises the question of validity of that timber rights agreement as a triable issue.

On 27th October 2004 a certificate of timber rights agreement negotiation (Form III) was issued authorizing the issue of a licence and on 28th October 2004 a licence was issued to Laumare Development ("Laumare"), licence number A10401. At that time the sole proprietor of Laumare was John Suga (snr).

The first and second claimants allege that the first and second defendants have trespassed into the second claimant’s concession area and felled and removed logs illegally from that area. They come to this court for orders to restrain the defendants from continuing with the trespass and illegal felling of logs.

The claimants had initially sought to commence this application on ex parte basis. This was however rejected and the matter listed for inter partes hearing. Mr. Titiulu appeared on behalf of the second defendant. No one appeared from the Attorney-General’s Office.

The issue for determination in this type of application is first and foremost whether there are any triable issues for determination. Of-course the locus of the applicants is a prerequisite in this type of applications. I am satisfied they have locus as landowners to come to court over the issue of validity of licence and timber rights over Vatugao land.

A quick perusal of the claim and sworn statements filed in support of an interim injunction reveals some material defects in the process in which the licence had been issued. First the so-called timber rights agreement appears to be flawed in its execution. Only two of the persons identified as representing the Vatugao customary land signed the agreement. One of the signatories was Francis Chului but I could not decipher the signature of the second person. For the timber rights agreement to be valid and binding in terms over Vatugao land, all five signatories ought to have signed that agreement. If this allegation is established, then it will invalidate the licence issued to Laumare. I am satisfied this raises a clear triable issue.

Secondly, the technology, marketing and logging agreement ("the technology agreement") was signed by Laumare Development Company ("LDC"), an entity which appears on the face of the record to have no valid licence to sub-contract. The claimants say that LDC is a different entity to Laumare and therefore did not hold any valid licence. It was only registered as a business name on 7th May 2007 and the proprietors of that business entity were Mateo Matai, Eddie Matai, Paul Chavuselo, John Suga (Jr), Tekela Manganimate and Ulaua Tahoria. I presume Ulaua Tahoria is the same and one person as Ulalia Tahoria, one of the first claimants. On the material before me, there is no suggestion whatsoever that LDC is the holder of any valid licence over Vatugao land or the concession area.

On the face of the records before this court therefore I am satisfied this allegation raises another triable issue. If this allegation is established then the technology agreement will be void ab initio.

The third issue raised by Mr. Titiulu also relates to the validity of the licence held by the new proprietors of Laumare after the death of John Suga (snr). It is not clear when John Suga (snr) passed away but it would appear to be sometime before 20th June 2007. If that is the case, then the question of how the new proprietors were registered as the proprietors of Laumare becomes an issue. On the death of John Suga (snr) his interest inter alia (licence) automatically vests on the Public Trustee if he died intestate. The Public Trustee would then be responsible in assisting the next of kin to obtain letter s of administration over the estate. One of the responsibilities which the Public Trustee would require to determine is the question of transfer of that licence. Assuming that the licence is valid and not struck down, it will have to be valued in terms of its concession and be transferred for value. This raises the question whether this was done. If not then no valid transfer of the licence has occurred. This however will also be subject now to the question of validity of that licence in view of the triable issue regarding the possible invalidity of the timber rights agreement.

The next question for determination relates to the question of whether monetary damages will be adequate to compensate the loss to be incurred from the logging activities if no interim injunction is granted.

On this issue I am not satisfied damages will be an adequate remedy. But even if damages will be an adequate remedy in this case, the question of maintaining the status quo and weighing the balance of convenience in the circumstances of this case shift the scale of justice in favour of the imposition of an interim injunction.

This raises the question of whether an undertaking for damages should be ordered as a prerequisite to the issuing of an interim injunction. An undertaking for damages is a normal requirement in such applications. Where an undertaking for damages is readily given, it makes it easier for the court to decide where the balance of convenience will lie all things being equal. It lets the court know that the applicant is serious about his claim and is prepared to meet the costs of the defendants in the event they win their case at the end of the day. There are instances however where the court may exercise its discretion not to impose such requirement and this is one of such cases. Not only are the applicants not in a position to give any undertaking financially but where there is a prima facie case put before the court, such as where the validity of the timber rights agreement and licence are in serious doubt, the court may decide that to impose such requirement may deny the applicants access to justice in this case. Accordingly, I rule in this instance that the requirement for undertaking for damages in this instance be waived.

A number of orders are sought by the claimants. Those orders however must be confined to the Vatugao customary land. I am satisfied the following orders should be made.

Orders of the Court:

1. Grant order restraining the First and Second Defendants from carrying out any logging activity within the Vatugao customary land immediately until trial or further orders of this court.
   
2. Direct that the first and second Defendants provide all records of accounts and proceeds derived from the logging operation within the Vatugao customary land.
   
3. Direct that all monies, including royalty monies, derived from the logging operation be paid into a trust account to be created in the names of the Solicitors for the Claimants and the first and second Defendants pending trial or further orders of this court.
   
4. Direct the first and second Defendants to remove all their machineries and equipment from Vatugao customary land within 7 days from the date of receipt of these orders.
   
5. Direct that the first and second Defendants and all their agents, employees and contractors to vacate the said land within 7 days from date of receipt of this order.
   
6. Costs of this application to be paid by the first and second Defendants.
   

The Court.