Success Company Ltd v Tova [2009] SBHC 21; HCSI-CC 147 of 2009 (3 July 2009)

CC 147 2009 HC

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Case No: 147 of 2009

BETWEEN:

SUCCESS COMPANY LIMITED
1st Claimant

AND:

BULACAN INTERGRATED WOOD INDUSTRIES COMPANY LTD
2nd Claimant

AND:

ONESIMO REINUNU and KASIANO VEOMATE
3rd Claimant

AND:

MARK TOVA
(Representing his agents, friends & invitees)
Defendant

Date of Hearing: 25/5/09, 27/5/09 & 28/5/2009
Date of Ruling: 3 July 2009

Counsel for Claimants - Mr M Tagini
Counsel for Defendant - Mr D Tigulu

RULING

Naqiolevu J:

The Claimants seek several orders against the Defendant to restrain him from felling and cutting into sawn timbers and harvesting of all commercial trees within the First Claimant’s concession area.

The orders sought are:

(1) An interim injunction to restrain the defendant, his agent, invitees, relatives, family members, associates, tribal members, and friends from felling and cutting into sawn timbers all trees within the First Claimant’s concession areas.

(2) An order restraining the Defendant from interfering and disturbing the logging operations of the First and Second Claimants.

(3) An order that the Defendant remove all his machineries, equipments, agents, invitees and relatives from the First Claimant’s concession areas within the next 48 hours from receipt of this order.

APPLICANT’S SUBMISSION

Counsel for the First Claimants asserts the company has a Timber Felling Licensee No. TIM 2/38 to operate in its licensed concession area in Ward 1 and 2, West Guadalcanal.

The Second Claimant is a registered company subcontracted by the First Claimant to provide machineries and equipment for logging operation within the first claimant’s concession area inclusive of Honiata customary land.

Counsel assert the First Claimant has fully complied with the procedures provided under the Forest Resource & Timber Utilisation Act and was granted a felling licence over the above lands.

The First and Second Claimants entered into a Technology Agreement for the Second Claimant to provide machineries and equipment for the logging operation with the first claimant concession areas.

In the course of carrying out the logging operation, the Defendants threatened, demanded and illegally cut into sawn timbers, logs extracted from the Third Claimant’s block of land. The logs were felled by the First and Second Claimants for the purpose of exporting them.

Counsel assert the only issue before the Court is whether the Defendant has the right to cut, fell and harvest logs within that First Claimant’s concession areas without any valid milling licence, and even if with valid license, whether the defendant had obtained consent of the First Claimant as required under Section 5(1) (2) (b) of the Forest Resource and Timber Utilisation Act.

Counsel asserts the claimant has locus standi to bring the proceeding to Court. The Claimant is the licencee, the Second Claimant is the contractor and Third Claimant are the landowners who owned the block of land mark "OK" which the current operation is taking place.

Counsel submit that there are serious triable issues to be tried in the proceeding on whether the defendant has the right to cut logs within the First Claimant’s concession area, even without the consent and agreement of the First Claimant as required under Section 5(1) and (2) (b) of the Forest Resources and Timber Utilisation Act, whether the Defendants’ action amount to conversion of trees and trespass. Further, whether the Claimant have exclusive rights over all commercial trees within its concession areas by virtue of the licence issued to it.

RESPONSE

Counsel for the Defendant in response asserts the First Claimant was granted timber rights over Ravuneha/Honiata lands in 1993. As a result of the timber rights process, the First Claimants executed a Standard Logging Agreement with the grantors of the timber rights on the 10th of September 1993 for 15 years.

The grantors of the timber rights as representing all persons lawfully entitled to grant timber rights over Ravuneha/Honiata lands were Siriako Usa, Peter Chaci, Sabino Mele and Onesiniu Reinunu and the late Gregory Tukuli.

Counsel assert since the First Claimant was granted timber rights in 1993 and it is not known when it was originally issued, the only evidence they have is a felling licence issued on or about 23 December 2004, and it cannot be determined whether such licence is an extension of the earlier licence.

Counsel assert the First Claimant under the SLA is required to commence logging within twelve months from the date it executed the grantors of timber rights. No logging actually commenced within the Ravuneha/Honiata land until 2007. There was no contract variation or renewal of the time limit in the SLA to allow the First Claimant to validly commence logging after twelve months from 10th September 1993.

Counsel assert assuming that the First Claimant renewed its felling licence in 2004, that was not done in consultation with the grantors of timber rights and landowners. The First Claimant engagement of the Second Claimant on or about 2006, was also done without consultation with the grantors of timber rights and landowners.

Counsel claim on the 10th of September 2008, the SLA lapsed and so the First Claimant’s rights to log Honiata then ceased. It was never renewed with the grantors of timber rights over Honiata land. Instead the First Claimant executed an access agreement with Simon Haoliu and regarded it as a timber rights agreements. Unless Mr Haoliu is identified as a grantor of timber rights the agreement he made with the First Claimant to try and justify current operation is not complying with timber rights regulations.

Counsel submit the case entirely rests on the question of whether there is a valid SLA over Honiata land. The answer must be in the negative, the defendant had established by prima facie documentary evidence that the SLA had lapsed on the 10th of September 2008. Further the Second Claimant’s engagement was not made with the consent of the grantors of timber rights. The evidence had not been contested by the Claimant. There is no evidence the SLA was renewed or extended with the approval of the Commissioner of Forest.

This argument therefore establishes a presumption of irregularity which is crucial in the determination of the question of whether the injunction as sought by the Claimant should be granted or not. The Claimants’ standing to seek injunction is doubtful in the light of the prima facie evidence that the SLA over Honiata land had expired on the 10th of September 2008.

DISCRETION TO GRANT INJUNCTION

The Court’s discretion to grant an injunction is clear and the authority in this jurisdiction is Talasasa -v- Attorney-General¹, where Muria CJ as he then was, stated, "the leading case on this issue is the case of American² Cyanamid Co. -v- Ethicon Ltd, where Lord Diplock summarized the principle and these are":

(1) There must be shown to be a serious issue to be tried. This means a triable issue beyond a vexation or frivolous matter.

(2) Once satisfied there is a triable issue, the Judge should apply his mind in the question of the balance of convenience. This falls, into three parts:

(a) Could the Plaintiff, if denied an interim injunction and supposing he wins his case, he adequately compensated in damages for his loss?

If he would, usually no interim injunction will be granted, if he would not, then,

(b) If the interim injunction issues, carrying, as it would, an undertaking that the Plaintiff will abide by any order for damages the Court may make, will the Defendant thus be adequately compensated for any loss he may suffer?

If he would, then the interim injunction should be granted.

(c) If doubt remains, all the other factors should be taken into account, the Court bearing in mind all the time the ‘heart’ of the matter, that I the desirability of preserving intact the state of affairs which existed at the time when the Defendant embarked upon the activity complained of in the substantive action.

(3) If, after all these steps have been taken, the question remains in doubt, then the relative strength of the parties cases, as put in evidence orally or, as is the usual case if not the invariable rule, upon affidavit, should be enquired into and, upon consideration of the merits, a decision taken.

The Court is of the view that the principle as set out are quite clear, and must consider whether there are serious issue to be tried in this case. Both parties have raised issue that should be determined by the Court and the issues affect both the claimants and the defendants.

The Defendant asserts that First Claimant was originally granted timber rights over the Ravuneha/Honiata lands in 1993, and there were other customary lands outside the Ravuneha/Honiata lands involved as well but owned by the other tribal group.

The Court has considered the First Claimant was later issued with the Felling Licence TIM 2/38 for the customary land valid until 23rd of December 2010. The First Claimant has fully complied with the procedures provided under the Forest Resources and Timber Utilisation Act. The First and Second Claimant have entered into a SLA with the landowners for the logging operation.

The Court is of the view that there are clearly some triable issues for both the Claimants and the Defendants that should be considered by the Court, although not at this stage. There are issues which affect the rights of the plaintiff as well as the defendants. The issues are serious and must be tried.

The Court consider given there are prima facie evidence of irregularities in the logging operation and disputes as to ownership, and more importantly the validity of the licence and indeed the standard logging agreement. The Court having applied the test set out in the American³ Cyanamid Case and indeed, the Talasasa authority and the materials before the Court.

The Court must refuse the application for an injunction but will impose an injunction against any further logging operations, in the subject land pending determination of the triable issues. The Court adopt the principle of law enunciated by Palmer CJ, in the case of Tarao4 Development Associates -v- Gabriel Manelusi & Others, where his lordship refused an application for injunction and imposed an injunction against any further logging operation pending determination of all triable issues and outstanding issues.

ORDER

1 The application for interim injunction against the defendants is hereby refused and all parties are hereby restrained from any further logging activity in the subject land until further order.

2 Order Proceeds of disputed logs be hereby restrained. Claimant is hereby ordered to file its statements of case within 21 days hereof.

4 Defendants to file its defence within 14 days hereafter.

5 The matter is adjourned to the Registrar’s list for assignment of hearing date.

THE COURT

¹ [1995] SBHC 27
² 1ALL ER 504
³ ibid
⁴ Civil case No. 609/05