Rence v Hiva [2012] SBHC 38; HCSI-CC 12 of 2012 (4 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 12 of 2012

BETWEEN

SKINNER RENCE
(Rep Nono Tribe)
Claimant

And

ATABAN TAHU
(Rep Guva, Choki and Chale land owning tribes)
Second Claimant

And

JP ENTERPRISES
Third Claimant

And

RODNEY HIVA
(Rep Choe Tribe)
First Defendant

And

CHOE INTERGRATED COMPANY Ltd
Second Defendant

And

CHACHABULE AMOI
Third Defendant

And

RIMA Ltd
Fourth Defendant

And

ATTORNEY GENERAL
(Rep Western Provincial Executive)
Fifth Defendant

And

ATTORNEY GENERAL
(Rep Commissioner of Forests)
Sixth Defendant

Mr Watts for the First Claimant
Mr Etomea for the Second Claimant
Mr Tegavota for Third Claimant
Mr Rano for the First, Second, Third and Fourth Defendants
Mr Damilea for Fifth and Sixth Defendants

Date of Hearing: 12th April 2012
Date of Judgment: 4th May 2012

Ruling

1. On 24th January 2012 a claim was filed by Watts and Associates. It is a claim for judicial review of the decision to grant a timber licence to the Second Defendant. The Claim has 9 parties, 3 of whom are claimants. Watts and Associates sign the claim as the Second Claimant's legal representatives. On 14th February an Application was filed by Watts and Associates and again it is signed by them as the Second Claimant's legal representatives. The application is a copy of the application for judicial review filed some 3 weeks earlier. The application came before Justice Mwanesalua on motion day 23rd February. It was adjourned to motion day 1st March.

2. On 1st March the matter came before me. Mr Watts announced his appearance for the First Claimant, Mr Etomea for the Second Claimant, Mr Tegavota for the Third, Mr Rano for the First to Fourth Defendants and the Attorney General's Chambers looked after the Fifth and Sixth Defendants. There was no clear indication from the legal representatives appearing for the claimants whether or not they adopted the claim lodged by Mr Watts, technically on behalf of the Second Claimant. What did become clear was that there were proceedings pending in the Court of Appeal. It was suggested the present case should not proceed until the Court of Appeal had disposed of the matter before them. Not only that, Mr Rano wanted to file his defence. The matter was adjourned a further 7 days to 8th March. On that day, another motion day, the parties agreed to wait for the Court of Appeal and a further adjournment ensued.

3. When the matter came back before the court on 5th April it was apparent the Court of Appeal had heard the matter and had dismissed an appeal from Mwanesalua J's order in civil case 367 of 2011 by the First and Second Defendants in this case. The Court of Appeal had announced its decision on 30th March. Mr Watts then indicated he was going to seek an injunction in view of what had been said by the Court of Appeal. That is the application that came before me on 12th April and the one I am dealing with now.

4. If the above is not convoluted enough for the reader you can add to the mix the circumstances set out by the Court of Appeal in its judgment. The Court took two pages and seven detailed paragraphs to deal with the "Summary of some of the history leading to this action". The Court mentioned, "In one form or another, this has been the subject of dispute in 17 sets of proceedings over half a century". The dispute has involved the Chiefs, the Local Court, determinations by the Western Provincial Executive, appeals to the Customary Land Appeal Court, criminal cases in the Magistrates' court, cases before the High Court and, of course, the Court of Appeal. This present case was filed after a ruling by Mwanesalua J on 20th December 2011 and after the appeal against that ruling was lodged. It is all part and parcel of the headlong rush into litigation the parties seem hell bent on without so much as a pause to consider what has already been decided. The Court of Appeal refers to the, "....long chain of inconclusive litigation on the question of ownership". This case is just another link in that chain.

5. There have been several hearings before me in this case and in none of them have any of the "other" claimants reneged on the pleadings. It has to be accepted (despite how he signs the claim) Mr Watts represents the First Claimant and Mr Etomea and Mr Tegavota the Second and Third Claimants respectively. They have not sought to amend the claim in any way and so must be presumed to adopt it fully. The relief they all seek is a review of the granting of licence A10735 to the Second Defendant. They want that licence quashed and they want orders seemingly asking for a criminal judgment in civil proceedings (see clauses 4 and 5 of the Claim for relief). They want the proceeds of sale of all logs paid into a joint account. They also want an assessment of damages and compensation. They do not say what they base that claim on or in other words they do not say on what basis the court can or should award damages. The claim is somewhat defective in that regard. The injunctive relief sought by all the claimants is that set out in the application filed on 5th April 2012

6. The claimants want to stop the defendants (or at least the First to Fourth Defendants) carrying out any more logging. They want an account of all timber cut and sold since August 2009, they want the proceeds from the "current shipment" paid into a joint account and various other consequential orders.

7. The principles on which such orders can be made are well known in this jurisdiction. They are known as the American Cyanamid principles. In order to succeed the claimants, or some of them, must show that there is or are a serious issue or issues to be tried. In the Court of Appeal judgment referred to earlier the court took the view:-

"At the heart of the appeal lies an issue whether the Choe Faction [basically the First to Fourth Defendants in this case] can rely on the decision of the Western CLAC in November 2006 that its members were entitled to represent the "Choe" customary landowners, or whether the JPE Faction [basically the claimants in this case] can look to a more recent decision of the Marovo CC in 2010 that the lands in question were not and never had been "Choe" customary lands".

They conclude:-

"In the court's view, the submissions of counsel on behalf of all the Respondents on the issue are to be preferred. Each of them rightly under-lined the long chain of inconclusive litigation on the question of ownership before a variety of judicial and other bodies, until its clear resolution by the Marovo CC against the Choe Faction in October 2010 in the due exercise of its exclusive jurisdiction on that issue."

That is the present position and it must raise serious issues in connection with the licence as the grant of it to the Second Defendant was premised or so it is said, on much that is contrary to what the Marovo Chiefs decided. There is no indication the "Choe Faction" intend to challenge the Chiefs' decision.

8. Having found there is a serious issue to be tried the court must then consider the vexed question of the adequacy of damages and the balance of convenience. In the case of Manepuhi and Others v. Marovo Development Company Ltd and Others [1] Goldsbrough J formed the view:-

"This is a case where everyone involved intends logging to take place."

He later went on:-

"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."

His Lordship added:-

"The test on interlocutory relief is clear and simple. There may be serious issues to be tried, ......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.

In submissions for the applicants it was asserted that there is more harm to the applicants in allowing the logging to continue than to the defendants 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...... It is where there is doubt as to the adequacy of damages that the balance of convenience arises."

In the present application the claimants say, "the claimants would not be adequately compensated. The trees are gone. The environment has been damaged". They say, " The claimants concerned want the logging to cease forthwith as they are now the owners of the land in question" [2].

Against that it has to be accepted the claimants themselves want to log the land. All of the previous cases are about who should log, not should logging take place. This is, in the words of Goldsbrough J, all about money. The claimants say the defendants have harvested and extracted trees for export on a massive scale with no guarantee of payment to the correct landowning party. It was even suggested they have far exceeded their quota as set out in the licence. It would appear, from the figures produced, that is likely to be correct. The maximum annual quota allowed is 40,000 cubic metres. From January 2010 to the present time the defendants appear to have exported in the region of 122,127 cubic metres. However, as Goldsbrough J also observed in Manepuhi, "If there are issues with the logging they can be dealt with by the relevant authority". Even if it is accepted the claimants are 100% right on that issue they do not go on to say they would not do exactly the same. This is about the money not the trees.

9. On the application of the appropriate legal principles it is impossible to see how the court can make the order the claimants are asking for. Damages cannot be said to be an inadequate remedy in this case. Given that the Sixth Defendant, "would support the interlocutory application"[3] should not instead the relevant authority, the Commissioner of Forests, step in. It is a matter for the Commissioner to consider of course and he will no doubt seek advice from the learned Attorney's chambers. No doubt the advice will cover the steps that can be taken by the Commissioner if his directions are ignored. As indicated, these are matters solely for the Commissioner.

10. The applications are refused. Costs shall be reserved to the substantive matter.

11. It does seem rather depressing that in the half century of litigation involving the 17 sets of proceedings the one truly helpful and constructive order seems to be largely ignored. As has been found by the Court of Appeal, it remains a clear and valid resolution today and the parties might appreciate being reminded of it. It is the order of the Marovo Council of Chiefs from 12th October 2010. It says:-

"All Choe people go home and sort out their own problems peacefully or make reconciliation themselves"

Chetwynd J

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^[1] Basil Manepuhi, Ezekiel Hilly and Michael Belama v. Marovo Development Co Ltd and New World Ltd [2010] SBHC 75; HCSI-CC 294 of 2008 (28 October 2010)
^[2] Submissions by the Third Claimant.
^[3] Submissions filed 12^th April by Mr Damilea from the Attorney General’s Chambers