Niva Development Company v Pari Development Company Ltd [2008] SBHC 56; HCSI-CC 216 of 2008 (13 August 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 216 of 2008

NIVA DEVELOPMENT COMPANY

V

PARI DEVELOPMENT COMPANY LIMITED, PACIFIC CREST ENTERPRISE LIMITED AND ATTORNEY-GENERAL
(Representing the Commissioner of Forest)

Date of Hearing: 29 July 2008
Date of Ruling: 13 August 2008

Xplain Lawyers for the Plaintiff
James Apaniai for the 1st and 2nd Defendants
Attorney-General for the Commissioner of Forest

RULING

Izuako, J.

The applicant Nivah Development Company on 22 July 2008 moved a motion for interlocutory orders against the 1st and 2nd respondents. The orders sought were as follows:-

(1) An injunction to stop the 1st and 2nd respondents from accessing the applicant’s Moumou concession for any purpose whatsoever, including the construction of roads and bridges as well as the felling handling and removing of timbers for milling purposes or for sale locally or overseas.

(2) An injunction to stop the 1st defendant from carrying out similar activities within Sanalae customary lands over which the applicant has successfully acquired timber rights under application No. A10440.

(3) An injunction to restrain the 1st defendant whether by themselves, their contractor, employees, friends and agents from further accessing the bounds of the said Moumou and Sanalae customary lands.

(4) And for such further orders as the court deems just and that all such orders remain in force until otherwise ordered by the Court.

(5) An order as to Costs

In moving his application, Martyn Haurii esq for the applicant stated that his client is the grantee of a felling license No. A10530 which covers Moumou land. The applicant has also applied for a new felling license over Sanalae land. The application number is A10440 and the said applicant has done everything towards obtaining the new license but the grant has not yet been made to it.

The applicant’s economic activities and interests over Moumou land are being held in abeyance by the institution of suit CC619/2005 by the Directors of the 1st respondent against the applicants. The said suit is still pending in court and has not yet been determined. In the said suit an interlocutory order restraining the applicant from carrying out any logging operations on Moumou land was made by Mwanesalua J, on 4 April 2006 and the order is still in force.

In spite of the fact that suit CC619/2005 is still pending before the High Court, the 1st respondent has gone ahead to obtain a license to operate on a portion of land that has been approved under the license being held by applicant. Counsel for applicant submitted that this action of the 1st respondent in carrying out logging operations on lands covered by the applicant’s license is an abuse of court process. He also submitted that the 1st respondent in spite of knowing the main issues in CC619/2005 had not been determined had taken advantage of the orders of 4 April 2006 made in its favour and restraining the applicant’s activities; to obtain a logging license over the land in dispute.

Counsel continued that the economic rights and interests of the applicants which include cutting and felling trees and logs from Moumou land for export purposes would have been extinguished if the court allows the 1st respondent and 2nd respondent to continue with their current operations.

He referred to paragraph 4 of the further sworn statement of Hedison Nivah in support of the application filed on 21 July 2008 and submitted that landowners could take sides and resort to lawlessness if the orders sought are not granted.

On the issue of serious or triable issues, counsel submitted that:-

(i) The current logging operations of the 1st and 2nd respondents is a threat to the applicants rights granted by virtue of license No. 10503, the later license granted the 1st respondent having duplicated the same lands.

(ii) It is yet to be determined whether the lands over which licenses were granted to applicant are not the same lands over which 1st respondent was subsequently granted a license.

(iii) Applicant does not assert mere ownership of the lands in issue. Applicant pursues it’s economic rights and interests based on a valid license.

(iv) In suit CC619/2005, the court ordered that 1st respondent’s directors should access the determination of the chiefs before coming back to the High Court to argue their case. This order not having been complied with and 1st respondent having instead gone forward to obtain a logging license on the lands in dispute, court process has been abused.

As to balance of convenience, the applicant submitted it has filed an undertaking as to damages.

In his reply J. Apaniai esq. for the 1st and 2nd respondents invited the court to discontinuance paragraph 4 of the sworn statement of Hedison Niva dated 21st July in deciding this application.

The respondents, he said, are concerned about two pieces of land in this application. These are the Moumou and Sanalae lands which are both customary land. They are not registered land. Their ownership must be determined by the chiefs under the laws of Solomon Islands. Where the decision of the chiefs is not satisfactory, the case goes to the local court and may go further to the CLAC. From the CLAC, the matter may go the High Court on errors of law or non-compliance with written procedures.

On the nature of CC619/2005, Counsel explained that the applicant had obtained a timber licence to carry out logging operations over Moumou land. During the course of the applicant’s logging operations on Moumou land, the 1st and 2nd respondents who were claimants in CC619/2005 challenged the said applicant’s logging on the grounds that the applicant had operated beyond the boundaries of Moumou lands and had trespassed into plots 5 and 6 whose customary names are Matekoloko and Kakarumu land. Blocks 5 and 6 are owned by the Lampeza tribe with the registered business name of Pari Development Company Limited. The case CC619/2005 was filed by the Lampeza tribe or Pari Development Company who are the 1st respondent tin this applicant. They went on to obtain an injunctive order against the applicant who was stopped from operating in plots 5 and 6 on the grounds that these were not parts of Moumou land over which the applicants had a license.

There is no order of court restraining the applicants from operating or carrying out logging activities on Moumou land. The orders of court restrained them from entering plots 5 and 6 to carry out any logging operations.

In that ruling of the High Court on 13 July 2006 in CC619/2005 presided over by Mwanesalua, J. in which the said injunctive orders were made against the applicant, it was also ordered that the matter be referred to the chiefs on whom it fell to determine the ownership of the lands in dispute that is; blocks 5 and 6 and other plots of land in issue.

The respondents thereafter referred the disputed matters of ownership of plots of land to the chiefs. In their decision, exhibit "J" attached to the sworn statement of Donald Bato, the chiefs awarded the ownership of plots 5 and 6 and other plots of land which the applicant described as Sanalae land, to the 1st respondent – the Lampeza tribe.

The decision of the chiefs as to ownership of the said plots of lands has not been challenged before the local court which is the court to which an appeal against the chiefs’ decision ought to lie. That decision therefore still stands and remains valid.

Respondent’s Counsel Mr. Apaniai referred the court to a sketch map also attached to the sworn statement of Donald Bato made on behalf of 1st and 2nd respondents. The said sketch map, which is at p. 36 he submits, reflects the lands in dispute and situates plots 5 and 6 and other lands or plots described by applicants as Sanalae land within areas owned by the Lampeza tribe or 1st respondent. A sketch map on page 73 according to Counsel shows that Sanalae land is outside the lands in dispute and is in fact a cattle project. A statutory declaration by Hedison Niva who is a direct representative of the applicant is exhibited at p. 71 in which he states the exact location of the land known as Sanalae as being outside the areas in dispute.

Counsel submitted that in order for the court to grant an interlocutory application such as is being sought here; there must be a live issue, a triable issue. He submitted that there is no live or triable issue here as everything depends on who owns the lands in dispute. The issue of ownership has been determined in exhibit "J" attached to the sworn statement of Donald Bato already referred to and the decisions in exhibit "J" are valid.

Learned counsel for the 1st and 2nd respondents then cited some decided cases including Civil Appeal 8/1997 Gandly Simbe’s case; and Civil Appeal 36/ 2006, Havea Majoria v. Jino with regard to his submission that there is no live or triable issue.

In his reply to respondent’s counsel’s submission learned counsel for applicant Mr. Haurii esq. submitted further that ownership is of no relevance in this application as ownership issues and the acquisition of logging licenses are not the same. A landowner is not necessarily the one who can acquire a license over the land he owns.

He continued that the chiefs’ forum is not the proper place where the validity of the applicant’s license should be determined. The proper place, he argued, is the Court.

He finally submitted that plots 5 and 6 are within the applicant’s concessionary rights. On this score he referred the count to exhibit "EN2" attached to the applicant’s further sworn statement.

In his submissions, the 3rd respondent’s counsel D.Damilea esq. Crown Counsel of the Chambers of the Honourable Attorney-General was of the opinion that the application for interlocutory injunction ought to be granted. He stated that the applicant who had a valid license over Moumou land had gone beyond the area of his license in his logging activities. This gave rise to the suit CC619/2005 instituted by the 1st respondent.

The learned Crown Counsel further submitted that there are still some outstanding issues yet to be decided by the High Court in that case before moving any further. It is for this reason that he urges the court to grant the injunctive orders sought.

To these submissions, J.Apaniai Esq. of counsel for 1st and 2nd respondents replied that CC619/2005 was a case filed prior to the determination of the ownership of blocks 5 and 6. The outcome of the chiefs’ decision affects this present application. This is because one who does not own a piece of land cannot grant timber rights over it. He referred to Civil Appeal 36/2006 (op cit.)

He submitted that the issues raised in CC619/2005 have been determined by the chiefs. The issues of ownership of parcels of land giving rise to CC619/2005 are no longer live issues having been determined by the chiefs. Part of their decision is that blocks 5 and 6 are not part of Moumou land. The chiefs’ decisions have not been appealed against and so remain binding.

M.Haurii Esq. of counsel for applicants in replying aligned himself with the position of the learned crown counsel Mr. Damilea.

He submitted that the decisions of the chiefs were not binding on the applicants because by virtue of the CLAC Act 1985 (as amended), the decisions of the chiefs should be registered with the local court. The 1st and 2nd respondents, he added, have failed to show evidence that the decision had been registered with the local court.

He continued that the High Court has granted leave to the applicant to quash the decision of the chiefs in a certiorari application since May 11 2007 but the certiorari application has not been filed. The decision of the chiefs has no legal effect and there are therefore live issues to be determined.

In considering the application before me, I bear in mind that the usual purpose of an interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in the action.

In the American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; (1975) AC 396, the principles to be applied in applications for interlocutory injunctions were well enunciated by Lord Diplock. One of these principles is that the applicant must establish that he has a good arguable claim to the right he seeks to protect. The applicant must also show that there is a serious question to be tried. Where these tests are satisfied, the court shall exercise it’s discretion to grant or refuse the application on the balance of convenience. In the case of Lauringi v. Lagwaeno Sawmilling and Logging Ltd (1999) SBHC 93 decided in the High Court of Solomon Islands, Sam-Lungole Awich, J. restated the principles of law involved in the granting of an interlocutory injunction. He referred to the American Cyanamid Co v. Ethicon case (op cit) as the standard authority for the Common law rules in this regard. The first matter for my consideration here is: What issues have been raised in this application? In the language of the applicant it is the problem of an overlap of licenses. The applicant has come before the Court in this matter alleging that the portions of land making up Moumou land over which it has a valid timber logging license No. A10503 have been the subject matter of a new timber logging license granted to the 1st respondent.

The parcels of land complained of are: Pari, Kakarumu, Paravoe and Matekoloko lands all in Central Parara.

On their own part, the 1st and 2nd respondents have argued that there is no overlap of licenses. It is their case that the parcels of land complained of are not part of Moumou land over which the applicant has a license. They are not part of Sanalae land which applicant says it has applied for.

Are these issues live or triable issues?

It is the case of the applicant that its economic rights are threatened by the operations of 1st and 2nd respondents on the parcels of land in issue. The High Court in CC619/2005 has stopped the applicant’s operations at the instance of the 1st respondent’s directors while the 1st respondent has gone to obtain a license to operate on the same lands. The 1st respondent’s directors have not complied with the order of the court in CC619/2005 in which they were ordered to access the determination of the chiefs before coming back to court.

Again on their part, the 1st and 2nd respondents maintain that they have complied with the Court’s directive and have referred the matter of ownership of certain customary lands including Pari, Kakarumu, Paravoe and Madekoloko to the chiefs of Parara/Kohingo. The said House of Chiefs has made a decision dated 30 August 2006 which is marked exhibit "J" and annexed to the sworn statement of Donald Bato in support of the case of 1st and 2nd respondents and filed in Court on 17 July 2008.

The decision of the said House of Chiefs is that the lands in issue are all customary blocks of land owned by the Lamupeza tribe. It is the case of the 1st and 2nd respondents that since the decision of the chiefs have not been appealed against, the Lamupeza remain the owners of the lands in dispute. On the basis of the absence of any timber rights agreement with the landowners – the Lamupeza, the applicant cannot claim any economic rights on the said lands, as it is settled law in the Solomon Islands that a valid timber rights agreement is one entered into with the true land owners (See CA 36/06 Majoria v. Jino).

In considering the positions taken by the applicant and 1st and 2nd respondents and looking at the facts placed before the court and the law I make the following findings:

(1) The 1st and 2nd respondents have shown substantial diligence in complying with the orders made by F.Mwanesalua J. in CC619/2005, by referring the issue of ownership of the disputed lands to the Parara/Kohingo House of Chiefs.

(2) The said House of Chiefs has determined the question of ownership of the lands in issue.

(3) The decision has not been challenged and therefore remains valid and has legal effect.

(4) A license to log a customary block of land must be commenced with initial agreements with the real land owners.

(5) There is no evidence that the landowners have entered into any agreements on timber rights with the applicant

(6) The issues of the ownership of the lands in dispute are relevant to this applicant.

(7) I find no threat to the economic rights of the applicants in relation to the blocks of land complained of in this application.

In view of the foregoing findings I hold that there is no triable or live issues in this application. I am accordingly minded to refuse it.

In the process of going through the submissions, arguments and documents filed in this application, it is mention-worthy that none of the parties thought it necessary to exhibit the official record of proceedings in CC619/2005. The applicant was content to quote or reproduce only parts or portions of the orders made by the High Court in that suit even as it urged that the present application was brought because of what had occurred in the said suit. Such an approach cannot and did not in any way advance the applicant’s case. It also robbed this court of the opportunity of having a better appreciation of and possibly making or finding on the present status of the suit CC619/2005.

I wish to observe also that mere multiplicity of suits never helps litigants, lawyers or the courts. It would have been neater for applicants to have brought their application within suit CC619/2005. Let me use this opportunity too to prevail on both counsels and litigants to adhere to consistency in claims and submissions made and not prosecute a confused case. For instance, at paragraph 8 of the applicant’s ex parte application filed 4 July 2008 and subtitled Particulars; the applicant claimed 1st respondent had been issued a license which covered areas already granted to applicant both under license A10503 and application A0440. And continuing in the following paragraph 9 it was stated-

..."In these circumstances, the issuance of license to the 1st defendant is quite contentious as it effectively duplicated lands that have already been licensed to the applicant or they hold timber rights to...".

Going further, at paragraph 10 of the sworn statement of Chief Hedison Nivah in support of applicant’s interlocutory application also filed on the same 4 July 2008, the deponent stated as follows-

..."Our sources on the ground have witnessed the 1st and 2nd defendant’s machineries have trespassed through Moumou land in order that they access the areas licensed to them. This had happened without prior approval of the claimant and landowners..."

The question that arises here is: Is it a case of the 1st respondents obtaining a license over the same land as applicant had, or is it that the respondents have trespassed into applicant’s licensed area in order to gain access to other lands to which they hold a license?

It is a matter for concern that in the sworn statement of Donald Bato filed on 17 July 2008 in response to Chief Hedison Niva of applicant, the deponent attaches among others his exhibit "I" – shown to be a statutory declaration by Hedison Nivah on 01 August 2006. The contents of that statutory declaration are quite damaging to the applicant’s case. Chief Hedison Nivah who is the foremost representative of the applicant never responded to the depositions of Daniel Bato or denied the documents in spite of filing in the court at least two of his own sworn statements in this application.

Applicant’s counsel in arguing the application had referred to leave of the High Court obtained by the applicant since 11 May 2007 to apply for a certiorari to quash the decision of the Parara/Kohingo House of Chiefs as to ownership of the lands in dispute. Why has the applicant not proceeded with the certiorari application more than one year after it was granted leave? Is it because there is a prevailing attitude that orders of court can be sought, obtained and acted upon only when parties and counsels feel they suit their purposes or the occasion?

Logging business may mean very much to those who litigate over timber rights and licenses. When however they come before the Courts seeking the protection of the law, it behoves counsels to advise their clients on the need to exhibit a high sense of responsibility, seriousness and respect for court orders.

The applicant shall bear the costs of these proceedings and I hereby invite the parties to address me on costs. No costs to the 3rd respondent.

Addresses on Costs:

J. Apaniai esq. asks for $6,000.00. Says costs are governed by Schedule III of the CP Rules. M. Haurii esq. offers that he liaise with the respondent’s counsel to agree on costs. Makes an offer o $2,000.00

Court

The applicants shall pay the costs of these proceedings assessed and fixed at $3,000; the payment to be made within seven days from today.

HON JUSTICE N.A. IZUAKO