Reinun v Omex Ltd [2012] SBHC 163; HCSI-CC 283 of 2012 (18 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J).

Civil Case No. 283 of 2012.

BETWEEN:

ONESIMO REINUN
Claimant.

AND:

OMEX LIMITED
Defendant.

Date of Hearing: 11th September, 2012.
Date of Ruling: 18th September, 2012.

Mr. M. Tagini for the Claimant.
Mr. D. Marahare for the Defendant.

RULING:

Faukona J: Various interim restraining orders were granted on 31st of August 2012, following an ex-parte application filed on the same date.

2. Against those orders the Defendant comes to Court and file an application on 5th September, 2012 for the variation of the ex-parte orders.

3. The variation order seeks that paragraph 3 of the orders on 31st August, 2012, be varied to allow the Defendant to do skidding, hauling, shipping and exportation of logs already being felled and sourced from Kosumba 2 customary land which comprises of Honiata/Ravuneha lands being part of the concession it was granted a felling licence No. A101104 to operate.

4. Subsequent upon order 1, an order that the proceeds of these logs (less export duties payable to the SIG and operation costs incurred by the Defendant and its contractor), be kept in a joint trust account by the Solicitors pending further order.

5. An order that logs felled and sourced from Tomino and Kosumba 1 customary land as permitted under licence No. A101104 are not affected and/or restrained by the ex-parte orders made on 31th August, 2012.

6. Liberty to apply on 3 days' notice.

7. Costs be paid on indemnity basis.

8. My perception of this application is that the relief sought under this application does not affect orders 1 and 2, but to vary order 3 with which in due course if granted, will subsequently affect order 2 in the interim; and as well an additional order..

9. Whilst Order 1 and 2 uncontestably remain, it appears by reflection that they are conceded by the Defendant. In such circumstance, in my view, there is no need to ground the usual argument to invoke the powers of this Court whether to grant injunctive relief or not order Rule 7.11 and 7.8. Therefore it is irrelevant and inappropriate to argue the usual prerequisite requirements as locus standi, triable issues as required in Rule 7.11 (a) and balance of convenience in (b), undertaking as required in Rule 7.38 and penal notice as required by the same rule and even the issue of adequate remedy. I say these because the additional relief sought concern lands that are outside the concern of the Claimant.

10. Those prerequisite requirements are relevant consideration before the Court can exercise its discretionary power under Rule 7.38 whether to grant injunction or not. The injunction orders subsequently were granted and order 1 and 2 is not contested, so it is only necessary for me to consider the grounds for considering variation of order 3 and no more. Hence some of the documentary evidence and the exhibits attached to the sworn statements are not relevant in this particular application. The relief sought is more or less confine to certain considerations.

Ex-parte order untimely:

11. What is necessary at this stage, in my view, is to consider the facts that support the contention in granting the variation orders in the interim. Mr Marahare argues that the ex-parte restraining orders are untimely. Whether they are untimely or not, no one is able to control the other party's case. Perhaps circumstances may urgently require such application whether the other party agrees to it or not, is a commencement of litigation which has to be brought to the appropriate forum. A party has a total control and administration of its own case and should not be remotely control by others outside. When to institute a case is a decision left entirely on a party and him alone.

Adequacy of remedy:

12. If the concern of the Defendant is to export 6,000 cubic meters of logs now ready to be skidded and hauled and exported, as a basis to compensate the loss he incurred in logging operation, which he said have cost US$737.00 per cubic. It follows that a party cannot be awarded damages without having suffered a wrong. The question is whether money compensation is sufficient to meet damages when ordered at the end of the day. That leads on to the next question; will the Claimant suffers harm if the injunction is not granted, or will the Defendant suffer loss if the logging operation is restraint. There is no doubt an order for injunction will render the Defendant financial loss, loss of employment and loss of revenue.

13. But how much adequate remedy will it compensate the harm and destruction done to the environment, landscape and trees being the natural habitat of animals and birds, and prime source of survival for humans that is irreparable, or which will take years and generation to naturally replenish itself. So long as logging continues, substantial damages are eminent: it is long term harm where money is not an adequate remedy.

Cross Undertaking:

14. Again this is a prerequisite requirement. Rule 7.38 require a cross undertaking in damages as a condition to grant interim injunction 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. Lord Deaning said in Allan v Jambo Holding[1],

"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"

15. In most cases application for injunctive orders are filed by customary landowners. Some are ordinary village dwellers, others may engage in employment of which a regular fortnightly salary is earned. In this case the Claimant has not provided any cross undertaking. In the case of Tegra (NSW) Pty Ltd v Gundagai Shure Council and Ano,[2] the Court said,

"However, the appropriateness of requiring an undertaking as to damages may vary depends upon the nature of proceedings and may be less appropriate in environment cases".

16. Mr Marahare argues that there is no evidence to show the circumstances of the Claimant. I agree with that contention. However, when turning to the sworn statement of the Claimant I noted his address is King George, Honiara. I could draw inferences; he could be a teacher or living there and work elsewhere. In any event if he works as ordinary Solomon Islander undoubtedly he is paid a regular fortnightly salary. In such circumstance, his failure, would effectively precluded him from opportunity of having his rights determined in full trial, so that poverty or less income be a direct cause of an injustice that would kept him from proving his rights. I feel it would be injustice not to consider the ability of the Claimant who cannot meet his undertaking in damages. In this situation it is permitted that this is an appropriate case where undertaking in damages should not be required. See Bako v Gedi.[3]

17. It is necessary to consider the two considerations, adequacy of damage and undertaking, though not necessary as they are pre-requisite considerations as to whether to grant or refuse application for injunctive orders. I feel they touch some important facts related to this application.

18. Mr Marahare also submits that despite the ex-parte orders the Defendant possess a valid felling licence No. A101104 issued by the Commissioner of Forest on 18th August, 2011. I could not be tempted to comment on the relevant documents and the processes leading up to the issuant of the two licences. Suffice to say there are some anomalies detected in the processes. I am afraid I would not be able to deal with them at these proceedings as this Court is not an appellate Court. But hopefully the issue of validity of licences is resolved by Success Company Ltd and the Defendant, where possible in the case currently pending in the High Court.

19. Having considered all that I say and discern, and the fact that the Defendant do not object to injunctive orders 1 and 2, but rather desire to vary order 3 to allow him to skid, haul and export all logs sourced from the two respective lands. The documents show that 6,000 cubic meters is ready to be skidded, hauled and exported. The ship is now ready at anchorage at Noro. Should there be further delay the buyer will back off from the deal.

20. The Defendant also submits that the proceeds be deposited in a joint trust account in the name of the Solicitors, except for the operational cost and export duties payable to the government which has to be deducted. This is a clear implication that the Defendant is more interested in financial gain than effects logging causes to the environment and people. I am so sure any allowance given to calculate operational cost will certainly inflate and divert from reality. At the same time it is considered fair that since no money is paid to any trustee or grantor, the same be applied to the Defendant. I am prepared to grant the orders but no deduction in respect of operational cost, but allowing export duties payable to the government be deducted. The people of this country need that money.

Orders.

1. An order that Order 3 of orders made on 31st August 2012 is varied to allow Defendant to do skidding, hauling, shipping and exportation of logs already felled and source from Honiata /Ravuneha customary lands.

2. Consequent upon Order 1, an order that the proceeds of these logs be kept in a Solicitors Trust account pending further orders of the Court, less export duties.

3. An order to the effect that the logs felled and sourced from Tomino and Kosumba 1 customary lands as permitted under Licence No. A10114 are not affected and/or restraint by the Ex-parte orders made on 31st August 2012.

4. Liberty to apply on 3 days notice.

5. Claimant to pay 90% cost to Defendant on standard basis to be taxed if not agreed.

The Court.

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^[1] [1980] 1 WLR 1257.
^[2] [2007] NSW LEL 806.
^[3] [2012] HC – SI CC No. 366 of 2011 [16 August 2012].