Manepuhi v Marovo Development Company Ltd [2010] SBHC 75; HCSI-CC 294 of 2008 (28 October 2010)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 294 of 2008

BETWEEN:

Basil Manepuhi, Ezekiel Hilly, Michael Belama,
Applicants
(Registered Trustees of LR 676 Land, Isabel Province)

AND

Marovo Development Company Limited
First Defendant

AND:

New World Ltd
Second Defendant

Date of Hearing: 18 and 22 October 2010
Date of Decision: 28 October 2010

Togamae W for the Applicants
Pitakaka M for the First Defendant
Tagini Dr P for the Second Defendant

Decision on Interlocutory Relief

Goldsbrough J:

1. This is an application, before proceedings are commenced, for interlocutory relief under Rule 7.9 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). It was filed on 5 September 2008 and amended 13 October 2010. As at the date of hearing of the application, which date has nothing to do with lack of availability of hearing time, but reflects the wishes of the claimants no substantive claim has been filed.
   
2. According to a certificate filed 22 July 2010 this matter became 'urgent' and steps were taken to secure this hearing after the second defendants landed their logging equipment on 5th and 6th July 2010.
   
3. The original application was filed by a legal practitioner naming Basil Manepuhi, Michael Belama and Joses Lote as claimants. At that time they were and they still remain only applicants for interlocutory relief, not claimants, as they have filed no claim. On change of legal practitioner, documents have thereafter been filed naming Basil Manepuhi, Ezekiel Hilly, Michael Belama and Joses Lote as applicants. Subsequently, and recently, the application has been amended to remove Joses Lote as an applicant. It is not clear on what authority the application now names Ezekiel Hilly as an applicant. The present legal practitioner purporting to represent all applicants has never met Ezekiel Hilly, has never received any signed (or unsigned) communication from him and has never required him to confirm that he is content that Basil Manepuhi give instructions on his behalf.
   
4. These pieces of information came to light on consideration of the sworn evidence of one Jeffrey Tom. In one of his sworn statements he alleges that the signature of Ezekiel Hilly is a forgery. The legal practitioner for the applicants was asked by the Court why such evidence comes from a third party and not from the client himself. Thus it was revealed that the legal practitioner actually does not have any instructions at all from that client.
   
5. In those circumstances the Court is of the view that Ezekiel's name should be removed from the record as an applicant. It cannot be correct that without confirming with the individual concerned, a legal practitioner can name a person as an applicant or claimant because another person says so. Legal practitioners cannot accept the word of a client that others want to be part of an action without taking steps to confirm that. Taking instructions without seeing the client is one thing but not bothering ever to confirm anything ever with a potential client is something quite different.
   
6. Joses Lote has now filed a sworn statement supporting the submissions in opposition to the applicants. He did that by approaching the legal practitioner for the 1st defendant. That legal practitioner took a statement from him without giving notice of this to the legal practitioner on record for him. That is less than satisfactory. A legal practitioner who is aware that a person who approaches him is represented in the same case by another legal practitioner must advise that legal practitioner of the approach. He cannot ethically take instructions or take a statement without giving notice to the other legal practitioner.
   
7. It should be apparent to any reader that an application filed in 2008 that has never proceeded until 2010 and becomes urgent and less than urgent then urgent again over time is not off to a good start. Then to lose two applicants, one who was never an applicant, then one who initially supported the applicant but no longer does is less than promising. The facts surrounding the application do not help it.
   
8. In 2006 the applicants as Trustees together with the remaining Trustees executed a Grant of Profit over land described as Parcel Numbers 071-004-2 and 071-004-5 to the 1st defendant. Thereafter a Technology and Harvesting Agreement was signed. Although the filed statement in support does not include any reference to it, it appears that all of this was followed by the necessary statutory procedure resulting in the issuance of a Timber Rights Agreement by the Commissioner of Forests. Indeed a part of the evidence now is a Notice to Show Cause from the Commissioner of Forests about Licence A 10627.
   
9. Nothing was done under the above agreement for some time and in 2008 the same Trustees, concerned over the lack of development, began to look for a new partner. They purported to terminate the Technology and Harvesting Agreement and tried to revoke the Grant of Profit, and at the same time appear to have entered into some other agreement with a different group to perform the same logging. Quite whether the Trustees could take that action when the logging was the subject of a Felling Licence one is not entirely sure but that is what they did. Certainly it is clear that if the matter was indeed urgent as set out in the original application it was urgent because of what the applicants themselves had done. They asserted then (in 2008) that they may incur losses because they could not execute another Grant of Profit to the intervening group whilst the first Grant of Profit subsisted.
   
10. But the urgency then relied upon for an order before action is not the urgency now relied upon. Now the urgency is irreparable harm from logging. The applicants, should they ever find the time to do so, intend to seek the revocation of the Grant of Profit and the termination of the present Technology and Harvesting Agreement which was signed between some of the Trustees and the 1st and 2nd defendants in 2010. This agreement replaced the first agreement that had been ended in 2008. It represents a better deal for the landowners but, perhaps, not the deal that the first applicant was looking for himself.
    
11. This is a case where everyone involved intends logging to take place. The present applicants, or at least the remaining two, intend it with another logging contractor. No doubt they are looking forward to negotiating a better deal for themselves. The defendants have negotiated the Grant of Profit, two Technology and Harvesting Agreements, have obtained a government licence and are now performing their work. They also now have Development Consent.
    
12. To fail to stop logging, it is submitted, would cause the applicants irreparable harm. This submission is difficult to accept as it is not supported by evidence. The trees will be felled, there is no doubt about that, but the trees will be felled whoever gets their own way as none of the landowners through their Trustees intend the land to remain virgin forest. The logging is being done under the authority of a licence and with (albeit belated) development consent. If there are issues with the logging they can be dealt with by the relevant authority. It is not for this court to intervene and stop that which was previously agreed that is now not agreed, through interlocutory relief. That is because in this case it cannot be said that damages alone are not sufficient.
    
13. The test on interlocutory relief is clear and simple. There may be serious issues to be tried, that will only become clear when the claim is filed and the Trustees are properly represented and their case is before the court. But any harm that may be caused to the applicants can be remedied by damages. This is really all about money and, more significantly, who gets the biggest share. It is completely inappropriate to suggest that these circumstances qualify for interim restraining orders.
    
14. In submissions for the applicants it was asserted that the test is satisfied if it can be shown that there is more harm to the applicants in allowing the logging to continue than to the defendants in being restrained. That is not the correct test but represents a misunderstanding of the balance of convenience. The balance of convenience only falls to be considered where there are serious issues to be tried and where damages alone are not an adequate remedy. The latter is not present here and the former is not shown because there is no claim on foot. It is where there is doubt as to the adequacy of damages that the balance of convenience arises. Here damages are adequate.
    
15. Counsel estimated that the hearing of this matter would occupy one morning. Because of a late start through counsel being late themselves and then counsel not having sufficient copies of material required most of that morning was wasted. If an application runs over through counsel not being available to start on time or because counsel arrive unprepared then they cannot expect other listed matters to be moved for their convenience. Lack of preparation on the part of counsel is not a reason to move other matters out of court lists. Court time is a finite resource and counsel have an obligation to use it wisely.
    
16. The application is dismissed. There is no current claim filed, even though counsel purported to file an 'amended' claim on 13 October 2010. There cannot be amendment to something which does not exist. The court considered ordering costs to be paid by the legal practitioner in person, such was the state of the matter as presented to the Court. In the event costs will be order to be paid by the applicants (whoever they might be) to the defendants, such costs to be agreed or taxed.
    

Dated this 28th day of October 2010

GOLDSBROUGH J