Saosogo v Macranka Timber Holding Ltd [2014] SBHC 103; HCSI-CC 229 of 2014 (6 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 229 of 2014

BETWEEN:

WARREN SAOSOGO & GEORGE TAUPONGI
Claimants

AND:

MACRANKA TIMBER HOLDING LTD
1st Defendant

AND:

SAMLINSAN (SI) LTD
2nd Defendant

AND:

THE ATTORNEY GENERAL (Representing the Commissioner of Forest)
3rd Defendant

Date of Hearing: 18th September 2014
Date of Judgment: 6th October 2014

Marahare for the Claimants
Pitakaka for the 1st and 2nd Defendants

RULING

Introduction

An Application by the Claimants Warren Saosogo and George Taupongi seeking interlocutory orders on the ground that the defendant are conducting logging activities on the portion Magalea Land is not covered by logging licence No. A101135 issued to the defendants.

The Claimants are seeking the following orders:

1. To restrain the first and second defendants, by themselves, their servants, agents or contractors from entering into any dealing over and/or affecting the portion within Magalea customary land and/or carrying on any logging operation.
   
2. All merchantable logs fell from the eastern portion of Magalea remain the property of the claimant or if already removed from the land by the defendants or their servants, agents or, the same be sold and all proceeds from the sale of the said logs be paid to the claimant through its solicitors.
   
3. An order authorising the third defendant to cancel the felling licence No. A101135 issued in the name of the first defendant.
   
4. Any other or further orders the Court thinks fit.
   

The Law

The English case of American Cyanamid Co. v Ethicon [1975] All ER 396 (UK House of Lords) set out the principles to apply when determining whether or not injunctive relief should be granted. And it is followed in the numerous decisions by the Courts of this country.

Injunction is a discretionary relief and in order for the Court to grant the orders sought it must satisfy that there are triable issues, there is irreparable harm/injury, the balance of convenience favours the applicant and there are no alternative remedy/damages.

They are the test that should exist to enable this Court to consider the grant of the injunction orders sought.

Issues

The question is whether the test or basis to grant the orders sought is made out in the complaints application?

Backgrounds

Claimants claim being the landowning tribe who owns in custom of the Magalea land situated in West Rennell in Renbel Province. The said Magalea land comprises different but small portions of land in West Rennell. The western part of the Magalea land is affected by felling timber licence No. A 101235 issued to Isles Tropical Timbers Limited.

Claimants alleges that the first and second defendants have encroached onto the eastern portion of Magalea land customary land situated in West Rennell, Renbel Province, that area is not covered by their logging licence and it is reserved land. Defendants have trespassed, cause damages by converting economical trees into values and removed the logs.

Upon the encroaching by the defendants on the area of land not covered by their logging licence or being portion of Magalea Land, the complainant reported the matter to the Commissioner of Forest Resources (third defendant) and he directed an assessment of the encroachment portion of the land.

The assessment was carried out by Forest Inspector on the area it confirmed that first and second have defendants encroached, felled and removed logs of commercial value from Magalea land. The assessment report dated July 2014.

From the assessments report the Commissioner of Forest invoked his powers under Section 33 of the Forest Resources and Timber Utilization Act (FRTU) (Cap 40).

Counsel Pitakaka for Defendants opposes the application on the reasons of locus Standi or standing by the complainants and that the licence concerned was issued earlier and any challenge should by way of judicial review.

Analysis of the Application

First, what simply transpires or the essence of the application is that as the Commissioner of Forest has now invoked his powers under Section 33 of the Forest Resources and Timber Utilization Act, the Claimant comes to Court to seek orders that would assist or to enable the enforcement of the provision of FRTU Act. Beside the enforcement of the provision, it would also contribute to maintain or preserve the status quo.

I noted the powers of the Commissioner of Forest under Section 33 of the FRTU Act. And it would appear as a twist but the Counsel for the Claimant said it is not as whatever the orders if granted by the Court may restrain the defendants to conduct any further activities or will assist the Commissioner of Forest in exercising his powers under the provision of FRTU Act and or until the Court determine any triable issues. I too do agree with that view.

With the related issues of locus standi, Counsel for the defendants raised an objection to Claimants Warren Saosogo and Taupongi. But there is evidence of uninterrupted use of access of the applicant and member of the Magalea landowning unit, being the appellant in the CLAC/Central cases No. 13, 18 and 21 of 2013 and have dealt with the Isles Tropical Limited on a certain portion land within Magalea.

I reject the defendant's objection on the locus standi.

On the argument by the Counsel for the Defendant for the process of judicial review I do not agree as this is a claim of trespass on the land not covered by the logging licence. I also reject the defendant's objection or argument for judicial review.

Triable Issue

With this issue the claim filed by the Claimant alleged that the first and second Defendants have encroached onto the eastern portion of Magalea customary land which is not covered by their logging licence. This is supported by sworn statement of the Claimant Warren Saosogo and also an assessment report by Forest Inspector on the Magalea customary land. But the Defendants have denied these encroachment or allegations. I am satisfied there are issues to be sorted at trial.

Preservation of Status Quo

The Defendants have harvested trees on the concerned portion of land and to continue they would further damage, destroy or remove or value of the properties may be diminished. That land is reserved from Magalea customary land and no logging operation to be carried out on the portion of land. This is status quo that should be maintained.

Balance of Convenience

The sworn statement of Warrant Saosogo and an assessment report by Forest Inspector on the Magalea customary land it is evidence the balance of convenience favour/lays for the complainants.

Damages not Adequate

There is undertaking by the Claimants as to damages. It may not be adequate taking into account being the villagers than the defendants. However, other factors must be taken into when determining this application to grant or not to grant the orders sought. For this case it should be to maintain the status quo and the Balance of convenience of the parties' cases.

In Mark v Mamata [2004] SBHC 49; HC-CC 108 of 2004 (3 September 2004) Kabui Judge (as he was then) when he dismissed interlocutory relief sought stated that the triable issues, preservation of the status quo, irreparable harm/injury, the balance of convenience favours the applicant and no alternative remedy/damages must exist to enable the Court to consider the grant of the injunctive orders sought.

With this case, the tests are made out by the claimants as stated above thus satisfies or to enable this Court to consider the grant of some of the injunctive orders sought.

I am satisfied with the application for injunctive relief sought and therefore I grant the injunctive orders as follows:

Orders

1. First and second defendants, by themselves, their servants, agents or contractors are restrain from entering into any dealing over and/or affecting the portion within Magalea customary land and/or carrying on any logging operation.
   
2. Any merchandise logs fell from the eastern portion of Magalea or if already removed from the land by the defendants or their servants, agents or, the same be sold and all proceeds from the sale of the said logs be deposited in the joint account of the solicitors of the parties.
   
3. The Commissioner of Forest has invoked his powers under Section 33 of the FRTU Act. He will consider cancellation under its own powers. Therefore an order authorising the third defendant to cancel the felling licence No. A10135 issued in the name of the first defendant is refused.
   
4. Cost in the cause.
   

The Court

Leonard R Maina
Puisne Judge