Tipaika v Samlimsan Logging Co. Ltd [2013] SBHC 101; HCSI-CC 149 of 2013 (6 August 2013)

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

Civil Case No.149 of 2013.

BETWEEN:

CHRIS TIPAIKA, JAMES TIPAIKA AND
WILLIE TUHA
Claimants

AND:

SAMLIMSAN LOGGING COMPANY LIMITED
First Defendant

AND:

MACRANKA TIMBER ENTERPRISES
Second Defendant

AND:

JIMMY MALI, POLLEN TANGO, LEONARD KANGOVAI, BILLY TEIKAHOIKI, KASIDY
SAGUIKA and PAUL TEHENUA.
Third Defendants

Date of Hearing: 24th July, 2013.
Date of Ruling: 6th August 2013

Mr. N. Laurere for the Claimants
Mr. M. Pitakaka for all the Defendants.

DECISION ON INTER-PARTE HEARING.

Faukona J: This is an inter-parte hearing following ex-parte orders granted to the Claimants on 23rd May, 2013. Mr Lauree maintains that the orders to continue in force. Mr Pitakaka submits that those orders be discharged and set aside.

2. On 17th May, 2013 when the application for injunctive relief was filed, a claim in category A was also filed. The claim is basically for trespass and damages suffered as consequence of trespass and illegal actions done by the Defendants.

3. The Claimants are customary landowners of Rennel Island, Renbel Province. And are authorised to represent the family members of the land owning family. The first Defendant is a logging contractor engaged by the second Defendant under a Technology Agreement to carry out logging within concession areas named in the Logging Licence No. A101153.

4. The second Defendant is a registered business name and holder of the above licence and specifically carrying on business in the logging industry.

5. The third Defendants are individual persons who granted timber rights to the second Defendants.

6. The Claimants claim that they own Patonu Customary land by virtue of local Court decision No. 4/1985.

7. The Claimants alleged that in April 2013, the first Defendants operation began and soon thereafter entered Patonu land, clean the bush for access road, construction of roads, fell trees and skid them.

8. These activities warrant grant of the ex-parted orders on 23rd May, 2013.

9. In this Court, the Defendants deny indulged in those illegal activities and say Patonu is a small piece of land use for cultivation and nothing more.

No respond and no defence filed:

10. Counsel for the Claimants submits that though not pursuing this issue, but urge the court to take consideration of the fact that the Defendants until now have not filed any response or defence.

11. Counsel for the Defendants admits they have failed to file any response and defence yet. His reason is that Rule 5.45 qualifies the Defendants not to file any response and defence because they have already filed sworn statements in response as required. It would appear the Counsels view amounts to absolute substitute instead of filing a response and defence.

12. Upon reading of Rule 4.45 which require a party to file a statement of his case and set out relevant facts to his case instead of setting those facts in a claim on defence or reply. Rule 5.46 further classifies that those relevant facts set out in a sworn statement be filed and served with claim defence or reply. The rules does not substitute filling of sworn statement instead of filing of response and defence. The rules are clear. Upon being effectively served with claim and supporting documents, a response and defence must be filed. Should the defendant failed this mandatory requirement it is taken as submission to the jurisdiction of the Court. By filing of response and defence, it gives the defendant right to be heard. In the event the defendant failed he has no right to be heard. On the outset that has been taken as a serious and a significant matter.

Full Disclosure of facts:

12. The other issue which Mr Pitakaka submits that should have been done when an ex-parte application was filed, that the party seeking orders must fully disclose facts of his case including facts not favourable to him. Mr Pitakaka refers to the case of Sotovae V Eagon Resources Development Co. (SI)[1]. Mr. Laurere opposes to such submission and refer to the case of American Cyanamid Co. V Ethicon Ltd[2]

13. In Sotovae's case the late Mr. Nori who represented the plaintiff made it clear that was non-disclosure of a fact referring to a receipt of $600.00 material to whether the Court should grant the ex-parte orders. In this case, Mr Pitakaka does not reveal what particular facts were not disclosed at the time of the application for ex-parte orders. In the absence of such that submission has no effect. However, in such circumstance it is prudent to accept the principle expounded in the Cyanamid case, that it is not a part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence or affidavits as to facts which the claim of either party may ultimately defend nor to decide difficult questions of law which called for detailed argument and mature consideration.

Locus Standi:

14. The test to be satisfied is that the applicant must show that his interest must be peculiar affected. In Ombudsman V Attorney-General[3] the Court stated,

"In matters which affect the public at large, the party seeking to sue must show his own interest is 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".

15. It appears that Mr Pitakaka offers majority of his submissions to cover both locus standi and triable issues. Bulk of his submissions encompass those two issues jointly and render minority to other traditional issues often encounter in application for injunctive relief; as balance of convenience, adequacy of damages and undertaking.

16. He starts by submitting, if there is to be a triable issue, it has to commence with the ownership of the customary land. Once the ownership of a customary land is disputed then this Court lack jurisdiction. The appropriate forum are the land Courts provided by the law. It has to start with the Chiefs then the local Courts and then to the customary land appeal Court.

17. That submission is perhaps missing the mark. The Claimants' concern is in respect of patonu customary land which they had won in the local Court in 1985. The fact that patonu customary land is not included in the nine lands under the concession area under the licence, makes it patonu land is outside and cannot be entered by the logging operation under licence No. A101153.

18. The submission that the Claimants had failed to register their objection at the timber rights hearing and had never appealed the determination and even fail to include the grantors, Commissioner of Forest and the Provincial Executive as parties to this case, therefore does not qualify them to come to Court and seek remedy or relief, tantamount to lacking locus standi.

19. To rely on such submission is a total misconception of the Claimant's case. The Claimants do not dispute any of the nine lands that were under the concession area. The emphasis is on patonu lands, which was excluded, or outside of the concession area. Meaning that the determination by the Provincial Executive did not include patonu land, hence, it is irrelevant to appeal the determination. On the same token, it is irrelevant to include the grantors because none of them granted timber rights in respect of patonu land. The same reason can be said that it is irrelevant to include either the Provincial Executive or the Commissioner of Forest to be party to this case. The reason is that the Provincial Executive did not make any determination concerning patonu land, and the licence issued by the Commissioner of Forest following the timber rights hearing determination did not include patonu land in the concession area applied for and was granted.

20 On the whole, it is apparent that the Claimant's interest has nothing to do with the timber rights process including opposing it, appealing it etc. Their interest is to protect their land, which they had won in the local Court in 1985. For this case it is not relevant to talk about the felling licence and how it was granted, but concern about the logging operation under the licence which they alleged had trespassed onto their land where no one has granted right to authorize the logging operation to enter therein. Clearly it reflected, in my view, the Claimants have standing to come to Court and institute a cause of action to be heard. And what constitute that cause of action are triable issues.

21. Triable issue:

The triable issues are (a) the ownership of patonu land by virtue of 1985 Local Court decision (b) the issue of trespass against the Defendants (c) damages as consequential to the act of trespass. And perhaps may I add (d) the location and the boundaries of patonu customary land.

22. It is clear from the Local Court record that there was no description of patonu land boundaries. There is evidence from the defendants that patonu land is a small gardening land. It does not extend from the bush to the coastline. If it does, then it would cover the whole entire nine lands which are under the concession licence. From the submissions, this is a real triable issue, which has to be sorted out in the rightful forum.

23. Location and boundaries of patonu land ought to be well defining before the issue of trespass and damages which arise from trespass can be heard by the Court.

Balance of Convenience:

24. I find there are serious issues to be tried and hence on the balance of convenience, where does it lie? Would there be more harm to the Claimants in allowing the logging to continue than to the defendants being restraint. There is no dispute that the Defendants have no licence to operate logging on patonu customary land. And there is no evidence that the Claimants are a willing party intends logging to take place. In any event patonu land must be well identified with demarcated boundaries. Without it would be difficult to identify any act of trespass. Nonetheless, the difficult problem encountered by the Defendants in that they have failed to file any response and defence in this case. By the rules, they have no right to be heard and argue their defence. Their privilege to do was absorbed by their failure.

25. The best this Court can do, in the circumstances, is to allow the injunction orders to continue, and that is where the balance of convenience lies.

Inadequacy of damages:

26. The normal test is whether or not monetary compensation would be sufficient to meet damages if and when ordered at the end of the day. On the Claimants, money compensation would not be adequate; trees would be gone and will take years to replenish itself, which mean damages would be long term.

27. In submission Mr. Pitakaka refer to the case of Rence V Hiva[4] which adopted the ruling in Manepuhi V Marovo Development Company Ltd[5]. The issue in Manepuhi case is quite contrast from this one. His Lordship identified the reason for not granting injunctive relief on page 4 paragraph 14; which he stated;

"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"

28. The authority is significantly clear. This can be distinguished because in this case there is a claim on foot. Where there is a claim on foot the main content are issue to be tried and that is exactly what is outline in the statement of case in this case. I do not think that the pronouncement in Manepuhi case is appropriate here. Inadequacy of damages can be considered where there are almost equal chances by parties under the balance of convenience. As I have decided above based the same two reasons, which must also be applicable under this heading which tip to allow the injunction to stand.

Undertaking:

29. I have noted submissions in regards to this issue. There can be no doubt that 1st and 3rd Claimants are professionals who earned a living from their professional employment. The question is are they capable, or do they have ability from their earnings to do they have ability from their earnings to meet their undertakings in damages which in normal circumstance is questionable. I would not say they are poor. Undertaking is financial security pledged should the Defendants win the case at the end of the day? Logging operation is not a small business undertaking Financial loss cause by someone unnecessarily without good cause is expected to through back with huge sum of money. In the circumstances, I feel it would be injustice not to waive the requirement for undertaking.

30. With respect, and from what I have expounded herein, I therefore grant the orders pray for by allowing ex-parte orders granted on 23rd May, 2013 to continue.

Orders:

1. Ex-parte orders of 23rd May, 2013 to continue.

2. Cost be paid to the Claimants.

The Court.

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^[1] [1992]SBHC 40; HCSI-CC 207 of 1992 [19 October 1992].
^[2] [1975] AG 396 at P.407.
^[3] [1987] SILR 75.
^[4] [2012] SBHC 38; HCSI – CC 12 of 2012. (4 May 2012).
^[5] [2010] SBHC 75; HCSI – CC 294 of 2008 (28 October 2010).