Spring Hill Ltd v Vula Timber Enterprises [2013] SBHC 169; HCSI-CC387 of 2013 (28 October 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 387 of 2013

BETWEEN:

SPRING HILL LTD & GERUANA SAWMILLING LTD
Applicants

AND:

VULA TIMBER ENTERPRISES, TUNG HUAT COMPANY LTD, JOSHUA LEEROY, KEVIN JOSHUA LEEROY and WINSET PANIA
Respondents

J. Keniapisia for the Applicants.
L. Joshua spokesman for the Respondents

Date of hearing: 28th October 2013
Date of Judgment: 28th October 2013

RULING

Apaniai, PJ:

Introduction.

1. The Claimants/Applicants ("Applicants") have filed a category A claim against the Defendants/Respondents ("Respondents") claiming permanent injunction, damages and costs.
   
2. The Applicants claim that they have a license to carry out logging in Sasano land and that in or about September or October 2013 the Respondents have trespassed into Sasano and felled and exported 13 logs from Sasano. They also claim that the Respondents have stolen their 090 chainsaw.
   
3. In addition, the Applicants also claim that the Respondents are constantly intimidating them and their workers and interfering with and disturbing their logging operations at Vuvuruana at Vangunu Island, Western Province, and have issued threats against them. Finally, they claim that the Respondents have threatened to stop any future export of logs by the Applicants. This has created fear in the minds of the Applicants since they are now ready to export logs at the end of October 2013.
   
4. The Applicants now come to court seeking 3 main interlocutory orders. These are:-
   

[1] An order restraining the Respondents, their servants, agents and relatives from interfering with any future export of logs from Vuvuruana operations, Vangunu, Western Province. Additionally, an order for the return of one 090 chainsaw.

[2] An order directing the Respondents, their servants, agents and relatives from interfering with and intimidating workers at the Applicants' operation at Vuvuruana, Vangunu, Western Province.

[3] An order restraining the Respondents, their servants, agents and relatives from obstructing and or in any way interfering with or intimidating the Applicants' operations at Vuvuruana, Vangunu, Western Province.

5. They also seek costs against the Respondents in relation to this application.
   

Principles governing the grant of interim injunctions.

6. The principles governing the granting of interlocutory injunctions are clear. They have been laid down in American Cyanamid Co. -v- Ethicon Ltd[1] and have been consistently applied by the High Court and the Solomon Island Court of Appeal in their various decisions relating to granting of interlocutory orders [2].
   

Serious issue.

7. The first issue to consider in determining whether or not to grant an interlocutory injunction is whether there is a serious issue to be tried.
   
8. In this case, I am satisfied on the evidence[3] that there is a serious issue to be tried. The Applicants have shown by their evidence that Sasano land is covered by their timber licence. The Respondents have produced no evidence to the contrary. They have not filed any sworn statement in this application. The Applicants' licence has given them the right to carry out logging in Sasano land. That is the interest they are now seeking to protect. However, whether they have a valid licence to log on Sasano land is an issue for trial.
   
9. In addition, the Applicants say that the Respondents have stolen their 090 chainsaw. They seek an order for the return of the chainsaw. Again, whether they are the owners of the chainsaw and whether the Respondents have stolen the chainsaw are issues for trial. The chainsaw was in the possession of the Applicants before it was removed by the Respondents. That status quo needs to be maintained.
   

Balance of convenience.

10. The next issue is whether the balance of convenience lies in granting the restraining orders or in refusing them. This is an exercise that involves balancing the risk of doing injustice to the parties if a restraining order is, or is not, granted.
    
11. In deciding this issue, certain considerations must be taken into account. They include whether, if injunction is denied but the applicants win their case in the end, the respondents are in a position to compensate the applicants for any damages or losses that they may incur as a result of the refusal to grant the orders. On the other hand, if injunction is granted, but the applicants lose their case in the end, are the applicants in a position to compensate the respondents?
    
12. It is here that the "usual undertaking as to damages" also comes in. In giving this undertaking, the party giving it undertakes that, if the orders are granted and it is later shown that they should not have been granted, the party giving the undertaking will be liable, without further order, to pay such damages as the other party or parties, or any other affected persons, may have suffered as a result of the orders.
    
13. In this case, the Applicants have given the "usual undertaking as to damages". Whether they have the means to honour the undertaking is another matter. In appropriate cases, the usual undertaking as to damages would not be required. Such cases are restricted to those where injunction is being sought by village people who want to protect their land and environment. It is generally recognised that failure to give the usual undertaking as to damages by ordinary village people wanting to protect their land and environment from long term and irreparable damage that often accompany logging operations is not fatal to granting interim injunctions[4].
    
14. This is not the case here. Both the Applicants and the Respondents are currently involved in logging. According to the evidence, the Respondents' operations are just 300 meters away from the Applicants' operations. As such, I am not satisfied that the Applicants would not be able to pay any damage suffered by the Respondents if the orders sought in this application are granted.
    
15. Finally, it is clear from the evidence that the Applicants have a licence to carry out logging in Sasano land. Unless it is shown that the licence is invalid, I am satisfied the Applicants have a strong case. The strength of the parties' cases is also an important factor to consider when determining the question whether or not to grant interim injunctions. I am satisfied, the balance of convenience favours the granting of the orders sought.
    

Orders & costs.

16. In the premises, the orders sought in this application are granted. The Applicants have applied for costs. However, for the reasons given below, I think costs should be in the cause.
    
17. The Respondents have not filed any sworn statement in response to that filed on behalf of the Applicants. Mr. Joshua Leeroy had informed the court that they have consulted a solicitor from the Global Lawyers law firm to represent them in these proceedings but that the solicitor had gone to Auki and was not available to attend the hearing of the application. However, since the application is urgent, I have granted them pending any application which the Respondents might wish to make to have them set aside upon securing proper legal representation. These orders are therefore to be regarded as interim orders pending any such application by the Respondents.
    

THE COURT

James Apaniai
Puisne Judge

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^[1] [1975] 2 WLR 316
^[2] See, for instance, the Court of Appeal decision in Gandley Simbe v East Choiseul Area Council & Others – Civil Appeal No. 8 of 1997.
^[3] Sworn statement of Nathan Hapi Chrismas filed 14 October 2013.
^[4] Kalena Timber Company Ltd v Labere [2004] SBCA 10; CA-CAC 012 of 2001 (10 November 2004); Bako v Rozo [2012] SBCA 15; CA-CAC 42 of 2012 (30 March 2012).