Garaba v Orion Ltd [2013] SBHC 53; HCSI-CC 62 of 2013 (24 May 2013)

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

Civil Case No. 62 of 2013.

BETWEEN:

JOHN GARABA AND CHIEF EDDIE
NAJIKESA
(Representing Alekana Tribe of Choiseul)
Claimants

AND:

ORION LIMITED
First Defendant

AND:

SOLOMON ISLANDS RESOURCES
LIMITED
Second Defendants

AND:

JAMES ALEPIO and BILLY GAGARA
Third Defendants

AND:

ATTORNEY-GENERAL
(Representing the Commissioner of Forest)
Fourth Defendants

Date of Hearing: 7th May, 2013
Date of Ruling: 24th May, 2013.

Mr. M. Tagini for the Claimants
Mr. D. Tigulu for the 1st and 3rd Defendants
No one for 2nd and 4th Defendants

RULING.

Faukona J: This is an application for injunctive relief. The Claimants sought specifically three orders as spell out in page 2 of the claim filed on 6th March 2013.

Background history:

2. On or about 10th September 2003, the Choiseul Provincial Executive convened a timber rights hearing to determine the rightful persons able to grant timber rights over Kubobangara customary land. At the meeting, the representatives of Alekana tribe who attended made submissions to exclude Alekana customary land from the concession area.

3. On 19th September, 2003, the Provincial Executive determined that Kubobangara customary land does not include Alekana customary land and hence expressed exclusion. Concurrently, the proscribed Form 2 certificate affirms such exclusion. In its determination, the 3rd Defendants were among six grantors identified by the Provincial Executive as persons abled to grant timber rights on Kubobagara land.

4. In 2006, the 1st and 3rd Defendants landed machineries on Alekana land. As a result the Claimants sued the 1st and 3rd Defendants to Court in Civil Case No. 137 of 2006 and obtained orders against them not to carry out any logging activity within Alekana land. In 2010, in the same Civil Case the Defendants filed an application to dismiss the claim for want of prosecution. On 3rd August 2010, the Court dismissed the application to strike out and directed the Western Local Court to hear and determine Alekana customary land ownership. The Court further directed that the claim be stayed until decision of the Local Court and discharged the interim orders against the Defendants.

5. Recently as implicated by the letters from the Ministry of Forestry dated 2nd November, 2013, and 21st January 2013, (Exhibits EN6 and EN7) attached to Najikesa sworn statement filed on 6th March 2013, the Defendants 1-3 re-entered Alekana land and constructed access road and felled trees in which they have no license over. They also extracted logs from Subavolu customary land of which part of is a registered land. This is affirmed by the report attached to show cause letter Exh. EN7.

Identification of Alekana customary land:

6. The Defendants agree there is indeed Alekana customary land, but assumed that it is a small portion within Kubobangara customary land which they have concession over. The problem with that version is that there is no evidence at all or in terms of a sketch map to affirm that assertion. Therefore the strength of that assertion cannot stand the evidence adduce by the Claimants in the sworn statements.

7. The Provincial Executive had distinctively separated Alekena from being inclusive in the concession. A map Exh "EN4" attached to Najikesa sworn statement well identified the two lands with boundaries as distinctive. The Local Court unaccepted settlement form identified Alekana land as bounded with Korasakana land, Barakasa land and Kubobangara land.

8. There can be no doubt that Alekana customary land did exist of its own and distinctive in nature from Kubobangara land.

9. There is no dispute that the Chiefs determination was made later in time on 23rd June 2005, after the timber rights hearing and grant of licence.

Noted from Exhibit EN3 (the chiefs decision) are three significant facts. Firstly that Alekana customary land is well identified as separate portion of land from Kubobangara land. Secondly, that the parties to that dispute are the same; one of current claimant (Mr. Garaba) and one of 3rd Defendant (Mr Alepio) involved in the previous proceedings. Thirdly, that the ownership of Alekana land had been determined and John Garaba is the rightful person who has authority over the land.

10. The Chiefs determination was referred to the Local Court and up until now the reference case is still pending.

Locus Standi:

11. From day one when the timber right hearing was convened the Claimants were present and objected that the concession should not include Alekana customary land. That submission has an ultimate impact upon the Provincial Executive determination which was manifested in Form 2.

12. Despite the Provincial Executive determination, 1st and 3rd Defendants entered the Alekana customary land, resulted in the Claimant filing the Civil case CC No.137 of 2006, and had acquired interim orders which later were dismissed in 2010.

13. Before instituting the Civil Case, the Claimants and the 3rd Defendants had litigated the ownership of Alekana customary land before the Chiefs which a decision was in favour of the Claimants.

14. Sometimes in 2011 or 2012 the Defendants re-entered the Alekana customary land and actually constructed access roads and fell trees.

15. The Claimants physical indulgent in the timber rights processes, and actively participated in ownership hearing process before the chiefs and instituting Civil actions, clearly indicate their interest on the land. To come to this Court to seek restraining orders is the right they have to protect and their interest in the land. That right has guaranteed their locus standi to pursue their interest.

Principles applicable to injunction:

16. The leading Case of American Cyanamid[1] sets out the principles which Courts in this jurisdiction have adopted and applied. The case enlisted the principles as;

1. Triable issue.

2. Adequacy of damage.

3. Balance of convenient and

4. Undertaking.

Triable issue:

17. From materials the major triable issue identified is trespass onto Alekana land and damages therein. The argument that Alekana land is not the size the Claimants assert and a portion within Kubobangara land; cannot be the case as no alternative evidence is provided and relied on in terms of a map with boundaries pointing to such assertion.

18. That leaves the Claimant's case on the balance of high probability of truth. There is a map identifying Alekana land, Kubobangara land and Subavalu land as distinctive. As near as possible the determination by the Chief who also describe Alekana land as having common boundary to Kosasakana land, Barakasa land and Kubobangara land. That description is almost as equal as what is reflected in the map Exh. EN4 attached to Claimant Najikesa's sworn statement. That the land the Provincial Executive decided did not include Alekana land when it granted timber rights to 3rd Defendants over Kubobangara land.

19. From that evidence there can be no doubt that Alekana customary land is well define and located.

20. Having said that the issue of trespass and damages as the evidence stands, tilt towards the claimant's claim. They have the better right than that of the 3rd Defendants.

21. From those it can be perceived that the likelihood of the Claimant being successful at the trial is eminent. However, no one looks into the mind of the Local Court justices and their wisdom in determining a land ownership issue. The Court can only foresee through availability of evidence and no one would be boastful to prophecy the reality occurring into the future. Until the Local Court decides otherwise the Claimants right of ownership take precedent for the time being.

Inadequacy of Damages:

22. What Lord Diplock stated in the Cyanamid case is that if the plaintiff were to succeed at the trial in establishing his right to permanent injunction by an award of damages for the loss he would have sustained as a result of the defendants continuing to do what was sought to be restrained. If damages would be an adequate remedy which the Defendant would be in a financial position to pay then no interlocutory injunction be granted.

23. Lord Diplock's pronouncement, in my view does not accommodate and relate to the wish of the applicant to involve in another logging on the same land so as to make a lee way by applying for permanent injunction ensuring there is vacant land for that purpose.

24. What His Lordship focussed on is basically the second part of the paragraph. Here we have multimillion companies undertaking logging on a land they have no licence to log. The important question to ask is would damages be an adequate remedy? The capability of Defendants to pay is unquestionable, they can. But the damages done to land and forest where they have no licenced at all to log is damage which cannot be valued in monetary term. Hence, in my view a permanent injunction is most appropriate in the circumstances as the best option.

Balance of convenience:

25. There is no dispute that this is the second time the Claimants are asking for injunction over the same land. Initially, was granted in Civil Case No. 137 of 2006 but was set aside in or about 2010. Besides that, an application for contempt was also refused.

26. The Defendants had been engaged in logging operation since 2005 under felling license No. A10511 in Kubobangara customary land. Later the operation ceased. Recently they re-entered Alekana land and did involve in some logging activities. The show cause report has indicated the veracity of that activity, though denied by the Defendants. Apparently, the Defendants do not deny being involved in some logging activities but denied not to the level as asserted by the Claimants.

27. The issue of re-entering Alekana customary land and involved in felling and construction of access road, where no licence was issued for such activities, is an act of trespass, which must tilt the balance of convenience. The re-entry action prompts the second application for injunctive relief. It must not be viewed as a repetition of the first application. It is in my view necessary because of the second entry into the land, which Defendants are not authorised by law to do.

Undertaking:

28. In this case undertaking should feature a balancing exercise between the Claimant and 1st and 3rd Defendants. Mr Tigulu submits that authority in this jurisdiction favour the prospect exercised by landowners who oppose logging for environmental reasons. That for certain is absolutely untrue, that is not the only reason. Undertaking required of the Claimant is to protect him against injury by violation of his rights which cannot be compensated in damages if the decision is in his favour.

29. The same applies to the defendant to protect him against injury resulting from exercising his legal rights, which could not be adequately compensated, if the case is resolved in the Defendant's favour.

30. The problem with the Defendants in this case is that there is no evidence to show that they have the licence to fell trees within Alekana customary land. Nothing is shown in the Provincial Executive determination and determination by the Chiefs. In fact it became distinctively clear from those decisions and the map that Alekana customary land is a land of its own and not existed within Kubobangara land as the Defendants assert.

31. This boils down to the decision in Bako V Rozo[2] which the court emphasized that the Claimants have reasonable chance of success to give meaningful undertaking is not sufficient obstacle to such an order.

32. I have stated earlier that the Chief's determination which favoured the Claimant and other evidence disclose by sworn statement warrant a high prospect chance of succeed is eminent. Their rights of ownership to Alekana customary land are for time being well secured until the Local Court dislocates that determination.

33. Undertaking as to damages therefore cannot be questioned as the Claimants have secured understanding, should the Defendants succeed in these proceeding. The undertaking was filed on 6th March 2013.

34. In all that I say, I feel the most appropriate decision is to grant the orders sought.

Orders:

1. A permanent injunction is granted restraining 1st, 2nd and 3rd Defendants, their agents, invitees and associates from construction any log pond, access road and carrying out any logging activity within Alekana customary land

2. This Court hereby declares that the 1st, 2nd and 3rd Defendants logging operations within Alekena customary land is illegal and does not come under the 1st Defendant's licensed area.

3. All proceeds from logs harvested and exported from Alekena customary land be paid to the Claimants.

4. Costs awarded to the Claimants

The Court.

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^[1] American Cynamid Co.V-Ehticon Ltd (1975) AC 396.
^[2] CA – CAC 42 of 2012 (30 March 2012).