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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).
Civil Case No. 263 of 2010.
BETWEEN:
PATRICK SANGA, FRANK TIBUA,
JOHN SA'OHATOGHA
Claimants.
AND:
AMOS TEIKA (Trading as AMOS COMPANY)
First Defendant.
AND:
SAMLINSAN COMPANY LIMTED
Second Defendant.
AND:
ATTORNEY-GENERAL
Third Defendant.
(Representing the Rennell and Bellona Provincial Executive)
AND:
ATTORNEY-GENERAL
Fourth Defendant.
(Representing the Central Islands Customary Land Appeal Court).
AND:
ATTORNEY-GENERAL
Fifth Defendant.
(Representing the Commissioner of Forests).
Date of Hearing: 21st August, 2012.
Date of Ruling: 12th September, 2012.
Mr. N. Laurere for the Claimant.
Mr. C. Hapa for the First and Second Defendants.
Mr. Banuve and Mr. Hanu for the Third to Fifth Defendants.
RULING
Faukona J: This application was filed by the Claimants on 3rd January, 2012, seeking the grant of injunctive orders. The orders sought can be paraphrased as follows:
2. The 1st and 2nd Defendants oppose the Claimant's application on three principal grounds;
(1) The Claimants' locus standi
(2) A Court decision is favour of the 1st Defendant's father render the Claimant's claim res-judicata in terms of customary ownership of Tehakamagoku land.
(3) No undertaking as to damages has been given by the Claimants.
The issue of locus standi:
3. The test to be satisfied is that the applicant must show that his interest is peculiarly affected. How extent that interest be is not clear, but the case of Ombudsman V Attorney-General[1] where his Lordship stated;
"... In matters which affect the public at large, the party seeking to sue must show his own interest are peculiarly affected by the defendant's conduct. The court will exercise its discretion widely but it will not exercise it in favour of the plaintiff whose claim is too direct or insubstantial..."
4. Mr Hapa argues that Central to the issue of locus standi, the applicant must first establish his rights in custom in terms of ownership and or representation before he can come to Court and be heard on issues affecting customary land.
5. It appears from the applicants point of view which I could able to perceive, that he comes to Court equipped with the evidence premise on two grounds, (a) his appeal against the decision of the Rennell and Bellona Provincial Executive to the Central Islands Customary Land Appeal Court is current and pending and (b) though the local court had given the land (appear to be four blocks) to the 1st Defendant's father, the identification of boundaries of those lands must be well defined. From the map there are no defining boundaries.
6. The argument advance by the applicant is that the decision of the Local Court covers for blocks of land. The concession area granted by the Defendant and others as persons lawfully entitled to grant timber rights covers other blocks of land own by others, even to the extent of including lands outside of Tehakamagoku land.
7. It may perhaps be true that the applicant may be precluded from litigating the four blocks by operation of the principal of res judicata. However, the assertion that the concession area protruded into other blocks and other lands is an issue to be resolved in an appropriate forum. Through that forum parties will establish their rights. Meantime whilst the appeal to CLAC is still pending determination, the right of the applicant to be heard takes precedent over all other. That interest was shown when the applicant has to travel from Yandina to Rennell to attend the timber rights hearing.
8. The principal of locus standi has been succinctly set out in Simbe V East Choiseul Area Council and others[2] where the court of Appeal held as follows;
"The function of the Court Injunction. The jurisdiction of the High Court to grant an injunction in a case like this, however, not unlimited. To the extent that a local court or customary land appeal Court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by a local or customary appeal court of its jurisdiction to decide such disputes".
9. In the case of Derrick Habu, Sam Kevu v JP Enterprises Limited and Others,[3] the emphasis expressed by the Court is that the parties came before the High Court having already established their locus standi before that Court. In this case the Claimants are yet to establish their right, see also Leslie V Mina and others[4].
10. The authorities pronounce plainly that injunctive relief can be granted in two circumstances. One where the issue of customary ownership is pending either in the local court or the customary land appeal Court. Secondly, where the Claimant has established his right in custom of ownership. Simply put, that right has been shown by way of decision either by Chiefs or the Courts. In either case the applicant has establish his standing.
11. In this case the application premise on the first instance expressed in Simbe's case where the applicants appeal is still pending CLAC determination. That is a process provided by law and that appeal has to be heard. The applicant has a right to be heard. This is a simple and clear case that the claimant has locus standi to come to Court.
Triable issues:
12. The first issue raise is noncompliance with section 8 of the Forest Resources and Timber Utilisation Act. The requirement is that timber rights hearing conducted not less than 2 months or not more than 3 months from the date of receipt of the application. The date appeared on Form 1 was 16th September, 2005, the date when the application was determined was 27th April, 2007. This is an issue in law which is yet to be determined on appeal.
13. Another issue is that whilst an appeal is pending determination by the customary land appeal Court, a felling licence No. A10543 was issued to the 2nd Defendant by the 5th Defendant. And perhaps upon recognisance of the error the licence was suspended. This issue in particular is a serious one and in the context of law is genuine.
14. The issue pertaining to grant of timber rights in the concession area include blocks of land not covered by the local Court decision is a real issue. However, it may be difficult to litigate lands which had already being part of the decision of the local Court which was not appealed.
15. Another issue as advance concern the validity of agreement executed by the 2nd Defendants. If it can be proved that S.8 of FRTU Act was not complied with then the process that follows is questionable. The same can be said with reference to paragraph 13 above.
16. The issue of trespass is an issue to be reckon with. The plaintiff in the Local Court talked about four blocks of land without any well demarcated boundaries of the blocks. As such it is difficult to identify which land was given by the Local Court and whether the same lands were covered by the concession. If it could be identified that the concession area covers lands outside the lands given by the local Court then the issue of trespass is a life one. On the same note while the claim is on foot concern trespass, the Defendants are yet to file defence.
17. Having said that there can be no doubt that there are triable issues which the Central Islands Customary land appeal Court is yet to try.
Balance of Convenience:
18. The test is whether there is more harm to the applicants in allowing logging to continue than to the defendants being restrained. Common knowledge will prevail and rule, to allow logging to continue would be more harmful to the applicant's interest, with contemplated severe damage to the natural forest, landscape and streams which are natural habitat for animals and birds. Furthermore, once the natural forest is damaged will be irreparable, and of course will take generations for it to be replenished.
19. I have noted as well Licence No. A10543 had already been suspended by a letter dated 11th May, 2012, and addressed to the Director of Amos Company. The argument is that the order is necessary to prevent the Commissioner of Forest lifting the suspension in the near future.
20. From the evidence in my view the balance of convenience tilts towards the Claimants.
Inadequacy of damages:
21. The question whether money compensation is sufficient to meet damages when ordered at the end of the day. In any logging operation damages to the environment, landscape and streams are substantial, and irreparable. It will definitely take years and generations for the environment to naturally replenish itself. It is a long term destruction. As long as logging operation continues substantial damages is prevalent where money could not be an adequate remedy. Any pecuniary damages awarded would still be inadequate to indemnify the harm. If damages will be an adequate remedy for the Claimants then there is no ground for interference with the Defendant's freedom. Noted as well, Defendants have not obtained development consent from the Director of Environment and Conservation. That itself is contrary section 24(3) (a) of the Environment Act.
22. The Claimants come to Court for tort of trespass. Comprising the claim for damages to the environment and clam for value of logs and royalty.
23. From materials before the Court the 2nd Defendant landed machines on Rennell Island in September, 2008, and started felling and hauling of logs in June, 2011. So far they have exported about 8,000 cubic meters according to sworn statement of Jonathan Tohuika filed on 30th December, 2011. For an island like Rennell 8,000 cubic metre is quite substantial and should be sufficient benefit.
Undertaking:
24. In an application for injunctive relief Rule 7.38 require a cross undertaking in damages as a condition to grant interim relief, unless the Court orders otherwise. It means the Court may take into account the means of the applicant to weigh his capability to make a deposit. In this case the Claimants have not made any undertaking by paragraphs 1, 3 and 7 of Sanga's sworn statement filed on 9th January, 2012, that he is an ordinary villager with no source of income.
25. In the case of Allan V Jambo Holding[5], Lord Denning said,
"I do not see why a poor plaintiff should be denied a Mareva injunction just because he is poor, whereas a rich plaintiff would get it".
26. On the same note I have reiterated in Bako & others V Lepping & Others[6] that if the Court should strictly adhered to undertaking requirement as to damages upon grant of interlocutory injunction, then the theory that the ability to pay seems to favour the rich.
27. The approach by Brown J in Lokopio & others v JP Enterprise & others[7] is more advocacy of strict approach. However, Rule 7.38 gives discretionary power to the Court to exercise in circumstances where appropriate.
28. I feel it would be injustice not to consider the circumstance of the applicant who cannot meet his undertaking in damages. In this instance circumstances permit, this is an appropriate case where an undertaking in damages should not be required.
Issue Estopped:
29. The argument that the claimants are estopped from involving in any case under the provisions of Local Court Act and the Forest Resources and Timber Utilisation Act in terms of appeal. This is because the previous Local Court has determined the same issue between the same parties, and in which the estoppel is raised or their privies.
30. This issue in my view is relevant when one assess the evidence said in the previous judicial proceedings. I have read what the plaintiff said in that case and noted he mentioned four lands which he claimed customary ownership over. They are Tegepa, Kangingo, Niupani and Nukumanogi. Other four lands which were the subject of litigation in the Local Court was not mentioned or even claimed.
31. It appears the parties in the Local Court hearing were members of the same family tree. Traditionally, customary land tenure system of the Rennellese is quite different from the Melanesia group of the main islands. One has to be conscious in considering the manner in which the customary land is transacted or inherited. Beside any traditional concept, the fact is, there is argument that the concession area covers lands not awarded by the local court and other lands outside of Tehakamagoku land boundary, which is define in paragraph 5 of Sanga sworn settlement filed on 9th January, 2012. As such the Claimants may be estopped from re-litigating the four blocks of lands but depends on the relationship and connections and the recognised customary land tenure of the Rennell people. What remains an issue are the boundaries of those four lands and other lands within the boundary of the concession area. It may probably involve other litigants which have to be sorted out in an appropriate forum.
32. I have no doubt the issue estoppel may be useful in the substantive claim for damages in trespass. And may also likely to be raised in the appeal to CLAC. Meantime this court confines itself with the application for injunctive relief on the basis that an appeal against Renbell Provincial Executive is current and pending customary had Appeal Court hearing. As such I find it reasonable to grant the injunctive orders sought.
Orders:
1. Interim order against 1st and 2nd Defendants restraining them, their servants and agents from otherwise entering Tehakamagoku land to fell trees, construct roads or carry any activities of any kind or whatsoever until after trial.
2. Interim order restraining the 1st and 2nd Defendants from entering Tehakamagoku land for the purpose of removing or hauling logs already felled until further orders.
3. Interim order that if logs have already been removed and sold all proceeds be restrained and paid into a joint trust account of the solicitors of the parties until after trial or further orders.
4. That the 1st and 2nd Defendants by sworn statement provide details of logs fell whether sold or not from Tehakamagoku land including the species, volume and value within 7 days.
5. That penal notice is attached to the orders.
6. Cost in the cause.
The Court.
[1] [1987] SILR7
[2] [Unreported CASI, Civil Appeal Case No. 7 of 1997 – 21/10/98].
[3] [Unreported Civil Case No. 163 of 2003 – 12/8/2003.
[4] [Unreported HCSI Civil Case No. 411 of 2007, 18/12/2007] 3.
[5][1980] 1 WLR 1257.
[6] [2012] HCSI CC No. 366 of 2011.
[7] [Unreported, HCSI CC No.246 of 2002].
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URL: http://www.paclii.org/sb/cases/SBHC/2012/105.html