Eco-Green v Pacific Venture (SI) Ltd [2014] SBHC 114; HCSI-CC 225 of 2014 (14 October 2014)

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

Civil Case No. 225 of 2014

BETWEEN:

ECO-GREEN
Claimant

AND:

PACIFIC VENTURE (SI) LIMITED
Defendant

Date of Hearing: 15th August 2014
Date of Judgment: 14th October 2014

Pitakaka M for the Claimant
Lidimani D for Defendant

RULING

Maina, J:

Introduction

The Claimant alleges the Defendant is conducting logging activities within Potaikau customary land, a concession area covered by its logging Licence No. A10608. The Claimant now applies for interim orders to restrain the Defendants from conducting logging activity and related activities within said land and Defendant to immediately remove the machines, servant and or agents from on the land.

The Claimant relies on the claim filed on 22/7/14 and sworn statement of Dicky Kololou filed on 25/7/14.

The Law

The principles to apply when determining whether or not injunctive relief should be granted derived from UK House of Lords case of American Cyanamid Co. v Ethicon [1975] All ER 396 and adopted or followed by the Courts of this land.

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

These are the tests that must exist to enable or consider whether to grant or not to grant of the injunctive orders sought.

Issues

The question is whether they are made out in the Claimant's application and if not what are the reasons if any?

Brief Backgrounds

A Standard Logging Agreement [Form IV under section 5G FRTU Act Regulation) was signed by the timber grantors and Kiki Kolosu for Eco-Green for Potaikau customary land East Kwaio/East Are Are Kwaio Border Malaita Province on 29 March 2007 and logging/felling licence for Potaikau customary land was granted by the Commissioner of Forest to the Claimant on 4/10/10. Before the operation commence in earlier 2014, Dicky Kolosou for the Claimant was aware that the Defendant company was issued with a logging licence to log the land adjoined to his concession area and access road to the log pond through the Potaikau land which the Claimants hold the licence.

Dicky Kolosou was concerned that it would seriously affect the Claimant's exclusive right in Potaikau land and this matter to Commissioner of Forest by a letter dated February 3, 2014, but he did not receive any reply to date.

In or about March 2014 Defendant landed machines on Potaikau land and established a log pond at Kasia. The Defendant commenced with construction of access road through Potaikau land. That involves felling of commercial grade trees. Claimant alleges that Defendant have not followed the proper process when it created access through Potaikau land.

Analysis of the Application

The tests whether to grant or not to grant of the injunctive orders sought must be made out to enable or consider the orders sought.

Counsel for the Claimant argued that they executed with the persons determined as grantors a Form IV Standard Logging Agreement (SLA) and have rights on the land and alleges such amount to tort of conversion.

And Counsel for the Defendant relied on the sworn statement of Wong Guan Sing, the General Manager of the Defendant Company and argued that Defendant Company has been granted access road to the log pond by the trustees of Potaikau customary land. They did not fell any log nor establish any log pond at Potaikau land. The log pond is at Kasia.

Triable Issue

The triable issue relates to the claim of rights over the concerned land and both parties claimed different rights on Potaikau land. For the Claimant, the rights to fell logs granted to the company by landowners. And for the Defendant, the right to construct access road authorised by trustees of Potaikau land. Whether this is a serious issue it appears as a mild issue.

Damages not adequate

There is undertaking by the Claimants as to damages. Both the Claimant and Defendant are logging and there is presumption that both are capable to meet any damages.

Strength of the parties' cases

From the material before me both parties have equal chances for succeeding in their claims noting that as both parties were given different rights on the concerned land.

Preservation of Status Quo

The defendant was alleged to have harvested trees during the construction of access road through Potaikau land to the log pond at Kasia and that so far stated in the evidence.

Precedence shows that the Courts primacy in granting of interim injunctions is to maintain the status quo while the determination of the main issues in dispute between the parties to the proceedings is pending.

But what transpires from the materials before this Court is that the status quo is contained on the fact that it is concerned with the trees fell during the construction of access road to the log pond at Kasia.

Both parties seem to have different or certain rights on or at different portions of Potaikau land.

I am satisfied that some sort of interlocutory relief should be considered in favour of this application and they are as follows:

Orders

1. Restrain the defendant, servants and or agents from felling logs or extracting trees on the designated or covered by logging licence No. A10608 issued to the Claimant.
   
2. The Defendant may transport the logs fell from the portion of Potaikau land or areas of lands covered its licence no. A101318 through the access road constructed on portion of Potaikau land or covered by licence No. A10608 to the log pond at Kasia.
   
3. Cost in the cause.
   

THE COURT

Leonard R Maina
Puisne Judge