Leeghomo v Rizu [2013] SBHC 141; HCSI-CC 315 of 2013 (14 October 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOHN LEEGHOMO
(Chief & representative of Kiuwai
Tribe, North Kolombangara Island)
1st Applicant

AND:

JAMES RIZU
2nd Applicant

AND:

VIURU FOREST ENTERPRISE LTD
1st Respondent

AND:

POLY LOGGING (SI) LIMITED
2nd Respondent

Mr. M. Tagini for the First and Second Applicants.
Mrs. N. Tongarutu for the First and Second Respondents.
Date of hearing: 4 October 2013
Date of Judgment: 14 October 2013

RULING
Apaniai, PJ:

Introduction.

1. This is an inter partes hearing of an application filed by the First and Second Claimants on 23 August 2013 seeking the following interim orders:-
   

[1] an order restraining the First and Second Defendants, the servants and agents from carrying out logging in Kiuwai customary land;

[2] all proceeds (less government tax) of logs exported from Kiuwai land be paid into a joint trust account in the names of the solicitors for the parties;

[3] an order that the First and Second Defendants, the servants and agents remove their logging machines from Kiuwai customary land within 14 days from the date of this order;

[4] an order that the First and Second Defendants provide by sworn statement details of logs exported including species, volume and FOB prices;

[5] an order authorising the police to carry out arrest on persons concerned if orders [1] and [2] are not complied with;

[6] Costs.

2. The application first came before me on 29 August 2013 as an urgent hearing on the basis that logging machines have already landed at the disputed site. At that hearing, I made an interim restraining order, amongst others, in terms of order [1], on the usual undertaking as to damages, pending inter partes hearing. No orders were made in respect of the remedies sought in paragraphs [2] to [5] of the application.
   
3. Today's inter partes hearing is to determine whether or not the interim restraining order made on 29 August 2013 should continue and whether or not the rest of the orders sought in the application should be granted.
   

The law on granting of interim relief.

4. Generally speaking, the purpose of granting interim injunctions is to maintain the status quo pending the determination of the main issues in dispute between the parties to the proceedings. The status quo is the position prevailing before the conduct complained of[1].
   
5. The principles that apply when determining whether or not injunctive relief should be granted have been set out in the case English case of American Cyanamid Co. v Ethicon[2] and has been followed in a number of decisions by the courts of this land.
6. When determining whether or not to grant an interlocutory injunction, the matters which the court should consider are whether there is a serious question to be tried and which way the balance of convenience lies.
   
7. The question whether there is a serious question to be tried means that the claim must not be frivolous or vexatious and must have some prospect of succeeding[3].
   
8. When considering the balance of convenience, the court will consider whether damages are adequate for the claimant and whether the defendant is able to pay them.
   
9. If damages are adequate and the defendant is able to pay, injunction will be refused. If damages are not adequate or the defendant is not able to pay, the court will have to consider whether the undertaking as to damages made by the claimant is adequate protection for the defendant and whether the claimant is able to honour it.
   
10. If the court considers that the undertaking as to damages is adequate and the claimant will be able to honour it, injunction will be granted. If the court considers that the undertaking is not adequate protection or that the claimant will not be able to honour it, then the court will have to consider the need to maintain the status quo. This factor is normally in the claimant's favour but is not by itself conclusive in the sense that there may still be other reasons why injunction should be refused, for instance, if the claimant has delayed in taking action.
    

Is there a triable issue.

11. Hence, the first question to ask in this application is whether there is a triable issue.
    
12. This application was made under Rule 7.9 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") which allows urgent applications to be made prior to filing a claim. To date, no claim has yet been filed. As such, the only document, which could throw some light on the question of triable issue, is the sworn statement by the First Applicant filed on 23 August 2013.
    
13. In that sworn statement, the First Applicant says that he represents the Kiuwai tribe which owns the Kiuwai land – a plot of land sometimes referred to also as the "1½ mile". The land is situated between Patupaele point and Varu point on Kolombangara Island and is said to be separated from Viuru customary land by the Zorutu customary land and Voko customary land, which, by the Vella Lavella local court decision of 1979[4] and the Western Customary Land Appeal Court decision of 1980[5], were held to be separate blocks of land different from Viuru customary land.
    
14. The question as to whether or not the Kiuwai tribe is the owner of Kiuwai land has not been raised during submissions. As such, I assume that the Respondents may not be challenging the ownership claim by the Kiuwai tribe. In any case, the Deed of Settlement[6] to which the First Applicant and the Viuru Landholding group are parties, indicates to me that the Respondents do not dispute the existence of Kiuwai land and the fact that the Kiuwai tribe does have interests in that land. It is not disputed that the person called "Likiti Ghomo of Ghomo clan" referred to in the Deed of Settlement is the First Applicant himself. That indicates that the Respondents do not dispute that the First Applicant and his Kiuwai tribe may have interests in Kiuwai land.
    
15. As regards triable issues, the First Applicant, in his sworn statement, alleges that no timber rights hearing has been carried out by the Respondents in relation to Kiuwai land and that neither has he, nor any other member of Kiuwai tribe, had signed any timber rights agreement with the Respondents authorising them to carry out logging in Kiuwai land. The First Respondent says that the timber rights hearing in relation to Kiuwai land in 2004 was held following an application for timber rights by Elite Enterprises (SI) Ltd, not the Respondents. As such, he claims that the license issued to the First Respondent is invalid and therefore any logging operations being, or intended to be, carried out in Kiuwai land by the Respondents under the license would be illegal. Of course, the Respondents have denied these allegations. As such, I am satisfied there are issues which should be investigated at trial.
    

Is damages an adequate remedy?

16. It is clear that the First Applicant and his Kiuwai tribe do not want logging in Kiuwai land. They have not entered into any agreement with any of the Respondents to carry out logging in Kiuwai land. In the absence of a valid logging agreement, any license issued to the First Respondent to carry out logging in Kiuwai land is likely to be invalid[7] and any logging operations carried out under an invalid agreement or license is also likely to be illegal and might amount to trespass[8]. In my view, where the evidence is clear that a logging operation is likely to be illegal, the issue of adequacy of damages does not carry much weight and that interlocutory injunction should be granted. In any event, it has been recognised that damages would not be an adequate compensation for destruction caused to the land and the environment.
    
17. Furthermore, there is no evidence before the court to show that the Respondents are in a position to compensate the Applicants if injunction is refused.
    
18. I do not think damages would be an adequate remedy in this case. Accordingly, injunction should be available to the Applicants in this case.
    

Adequacy of undertaking and ability of the applicant to pay.

19. The Applicants have made an undertaking as to damages. Unfortunately, I do not think the Applicants are in any better position than the Respondents to honour their undertaking. It follows, therefore, that I must consider other factors in determining whether or not to grant the orders sought in this application. Such factors include the need to maintain the status quo and the strength of the parties' cases.
    

Status quo.

20. The conduct complained of in this application is the landing of the logging machines and equipment by the Respondents in Kiuwai land. Immediately before the landing of the machines and equipment, no logging operation was being carried out on the land. This is the status quo that needs to be maintained.
    

Strength of the parties' cases.

21. I am satisfied on the material before me that, if the evidence remains as it is, there is a higher chance for the Applicants succeeding in their claim as regards the issues they have raised as referred to in paragraph 15 above.
    

Orders granted.

22. Accordingly, this application is granted and the following orders made:-
    

[1] that order 1 of the interim orders perfected on 30 August 2013 shall continue in force until trial of further order of the court;

[2] that the First and Second Defendants, the servants and agents remove their logging machines from Kiuwai customary land within 14 days from the date of this order;

[3] that the proceeds (less government tax) of any logs exported from Kiuwai land on and after 6 August 2013 be paid into a joint trust account in the names of the solicitors for the parties;

[4] that the First and Second Defendants provide by sworn statement details of logs exported from Kiuwai land including species, volume and FOB prices;

[5] that the police are authorised to assist in the enforcement of these orders;

[6] that the claimants file and serve their substantive claim on the First and Second Respondents by close of business on 28 October 2013.

[7] Costs in the cause.

THE COURT

_________________________
James Apaniai
Puisne Judge

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^[1] Fellowes v Fisher [1976] QB 122.
^[2] [1975] All ER 396 (UK House of Lords).
^[3] Re Cable [1975] 1 WLR 7; Smith v ILEA [1978] 1 All ER 441.
^[4] Exhibit “JL4”, Sworn statement of John Leeghomo filed 28 August 2013.
^[5] Exhibit “JL5”, Sworn statement of John Leeghomo filed 28 August 2013.
^[6] Exhibit “LL8”, Sworn statement by Leeroy Lio filed 9 September 2013.
^[7] Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999).
^[8] Sekovolomo v Eagon Resources Development Company Ltd [1999] SBHC 116; HC-CC 218 of 1992 (2 December 1999).